Mahaney v. City of Englewood

• Decision Date: 01 October 2009
• Docket Number: No. 08CA1505.,08CA1505.
• Parties: Mike MAHANEY, Plaintiff-Appellant, v. CITY OF ENGLEWOOD, Colorado, a home rule city and a Colorado municipal corporation, Defendant-Appellee.
• Court: Colorado Court of Appeals

226 P.3d 1214

Mike MAHANEY, Plaintiff-Appellant, v. CITY OF ENGLEWOOD, Colorado, a home rule city and a Colorado municipal corporation, Defendant-Appellee.

No. 08CA1505.

Colorado Court of Appeals, Div. V.

October 1, 2009.

As Modified on Denial of Rehearing January 21, 2010.

Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Jim Johnson, Bill E. Kyriagis, Denver, Colorado; Mark Silverstein, Denver, Colorado, for Plaintiff-Appellant.

Daniel L. Brotzman, City Attorney, Nancy N. Reid, Assistant City Attorney, Dugan S. Comer, Assistant City Attorney, Englewood, Colorado, for Defendant-Appellee.

Opinion by Judge HAWTHORNE.

We are called upon to review a constitutional challenge to the Englewood Sign Code, which is contained in the Englewood Municipal Code. Plaintiff, Mike Mahaney, appeals the trial court's summary judgment for the City of Englewood. We reverse the judgment and remand with instructions to enter judgment for Mahaney.

I. Undisputed Facts and Procedural History

Mahaney owns and operates Headed West, a shop that sells pipes and other smoking accessories in a building located in Englewood's "South Broadway Sign Area." In an effort to prevent graffiti, Mahaney hired artists to paint a mural on the building's north and south exterior walls.

The south mural depicts the images of musicians Bob Marley, Jimi Hendrix, Jim Morrison, Jerry Garcia, and Janis Joplin. The north mural depicts a scene from Lewis Carroll's "Alice's Adventures in Wonderland."

Citizen inquiries caused Englewood to inspect the murals and issue a code enforcement notice to Mahaney citing three sign code violations under Title 16 of the Englewood Municipal Code (EMC): (1) failing to obtain a permit as required by EMC section 16-6-13.D.1.a; (2) failing to obtain city manager approval and having more than one mural in violation of EMC section 16-6-13.K.3.b.6; and (3) exceeding the maximum sign area in violation of EMC Table 16-6-13.7. Mahaney did not remove the murals as instructed in the notice, and Englewood initiated proceedings against him in municipal court. Those proceedings were stayed after Mahaney filed this action for declaratory and injunctive relief alleging that EMC section 16-6-13 violates the First Amendment to the U.S. Constitution and Colorado Constitution article II, section 10.

In the proceedings for declaratory and injunctive relief, Englewood filed a motion for summary judgment arguing that Mahaney's murals are properly subject to its sign code, which does not violate his First Amendment free speech rights. Mahaney filed a cross-motion for summary judgment asserting that (1) the sign code, on its face and as applied to his murals, is unconstitutional under the U.S. and Colorado Constitutions, and (2) the murals are expressly exempted from the purview of the sign code as "works of art."

The trial court granted Englewood's motion for summary judgment, and denied Mahaney's cross-motion for summary judgment. The court relied on federal constitutional principles in concluding that "[g]iven the process for timely review in the Englewood Municipal Code, and the stay provisions of C.R.C.P. 106 ... the Sign Code does not grant the City unlimited time to approve or deny an application and do[es] not constitute a prior restraint on free speech." The court concluded:

1. The sign code does not grant Englewood's officials unbridled discretion in granting or denying applications for wall murals in the South Broadway district.

2. Englewood has established timely procedures for obtaining a permit and appealing its decisions and these procedures, in conjunction with C.R.C.P. 106(a)(4), provide adequate procedural safeguards.

3. Under the general rules of statutory construction, and the specific provisions of the sign code, Mahaney's wall murals are governed by the more specific provisions of the sign code and are not exempt under the "work of art" exception in the code.

Mahaney appeals the trial court's judgment.

Ordinarily there can be no appeal from an order denying a motion for summary judgment because it is not a final judgment. However, here, the court's order denying Mahaney's cross-motion for summary judgment is a final, appealable order because the summary judgment for Englewood effectively ended litigation in the trial court. Geiger v. American Standard Ins. Co., 192 P.3d 480, 482 (Colo.App.2008) (citing Glennon Heights, Inc. v. Cent. Bank & Trust, 658 P.2d 872, 875 (Colo.1983)).

II. Standard of Review

We review the trial court's grant of summary judgment and a constitutional challenge to a municipal ordinance de novo. JJR 1, LLC v. Mt. Crested Butte, 160 P.3d 365, 369 (Colo.App.2007); Kruse v. Town of Castle Rock, 192 P.3d 591, 597 (Colo.App.2008). Summary judgment is proper when the pleadings and supporting documents show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. JJR 1, LLC at 369.

III. Analysis

Mahaney contends that the trial court erred in granting Englewood's motion for summary judgment and denying his cross-motion for summary judgment because the special review procedure in Englewood's sign code imposes an impermissible prior restraint on his free speech and is therefore unconstitutional on its face and as applied to him. He also contends that even if the sign code is not unconstitutional, his murals are works of art and, therefore, are exempt from the code's regulations.

We agree with Mahaney's first contention because we conclude that the code's special review procedure constitutes a constitutionally impermissible prior restraint on free speech. Because we so conclude, we need not express an opinion as to whether his murals are exempt under the sign code as works of art.

When reviewing a municipal ordinance or code, we construe it using the same rules for interpreting statutes. Id. at 370. Our primary task is to give effect to the drafters' intent, by looking to the code's plain language. Id. We must construe the code in a manner that gives consistent, harmonious, and sensible effect to all of its provisions. Miller v. Colorado Dep't of Health Care Policy and Financing, 75 P.3d 1167, 1169-1170 (Colo.App.2003). If two provisions appear to be in conflict, we must attempt to construe them in a manner that avoids the conflict. Smith v. Zufelt, 880 P.2d 1178, 1183 (Colo. 1994). However, if the conflict cannot be avoided, the more specific provision prevails over the general provision. Id.

This "specific over general" rule and a similar rule embodied in EMC section 16-6-13.C.4 were relied upon by the trial court in determining that the sign code's provisions regulating wall murals prevail over its provisions exempting works of art. The court reasoned that because the wall mural and works of art provisions conflict, Mahaney's murals are subject to the sign code's more specific provisions. Englewood adopts this reasoning on appeal.

It is unnecessary for us to determine whether the sign code's wall mural and works of art provisions conflict because we conclude that under either provision, Englewood cannot prevail. If the more specific wall mural provisions apply, thus subjecting Mahaney's murals to the sign code's special review procedure to obtain a permit, they impose a constitutionally impermissible prior restraint on free speech. If the works of art provisions apply to Mahaney's murals, the code exempts them from permit requirements, and Englewood cannot enforce its code violations notice against Mahaney.¹ Thus, we focus our analysis on the constitutionality of Englewood's special review procedure.

A. Special Review Procedure

Neither party disputes that each mural is a "wall mural" under the following definition in EMC section 16-11-2:

[A wall mural is] a picture painted on any exterior wall of a principal building other than the front wall of the building, which (1) does not directly or indirectly advertise or call attention to a product. ...

Englewood conceded at oral argument that the murals do not directly or indirectly advertise or call attention to a product.

Englewood's sign code regulates wall murals by: (1) permitting them in the South Broadway Sign Area only; (2) requiring approval by the city manager (special review procedure); (3) limiting the murals to either 100 or 125 square feet in size; and (4) permitting one mural per structure. See EMC § 16-6-13.K.

Section 16-6-13.K.3.b.6 provides that wall murals are permitted sign types in Englewood's South Broadway Sign Area if a signage plan is approved by the city manager. A separate document entitled, "Policy for Special Review of Commercial Signs" (special review policy), clarifies Englewood's process for obtaining the city manager's approval, and provides in part:

G. Final Decision. Regardless of the recommendations of the [sign review] committee, all final decisions regarding the issuance of permits for signs in specialized sign areas shall remain with the City Manager or designee. [The sign review committee's] recommendations shall be made [to the City Manager or designee] within 45 days of the submission of the application to the Community Development Department. In the event the City Manager or designee disagrees with the recommendation of the committee, the City Manager or designee shall make a written record of the reasons for such disagreement at the time the permit is approved, approved with conditions, or denied.

As discussed below, unlike Englewood's five-day standard sign permit approval period in EMC section 16-6-13.D.2.a, neither the special review policy nor any other part of the EMC provides a specific approval period for the city manager's final decision.

B. Constitutional Principles and Prior Restraints

Because the trial court analyzed Mahaney's federal and state constitutional challenges, and the parties argue them, based on federal constitutional principles, we review the trial court's judgment on the same basis. See CF&I Steel, L.P. v. United...