National Advertising Co. v. Department of Highways of State of Colo., 86SA102

• Decision Date: 07 March 1988
• Docket Number: No. 86SA102,86SA102
• Citation: 751 P.2d 632
• Parties: NATIONAL ADVERTISING COMPANY, a corporation; Edgar Dill; and Boychuk Construction, Inc., a corporation, Plaintiffs-Appellants, v. The DEPARTMENT OF HIGHWAYS OF the STATE OF COLORADO; the State of Colorado; Frank L. Sollee; Ronald E. Richards; and Thomas Einboden, Defendants- Appellees.
• Court: Colorado Supreme Court

Page 632

751 P.2d 632

NATIONAL ADVERTISING COMPANY, a corporation; Edgar Dill and Boychuk Construction, Inc., a corporation Plaintiffs-Appellants, v. The DEPARTMENT OF HIGHWAYS OF the STATE OF COLORADO; the State of Colorado; Frank L. Sollee; Ronald E Richards; and Thomas Einboden Defendants- Appellees.

No. 86SA102.

Supreme Court of Colorado, En Banc.

March 7, 1988.

Goldstein & Armour, P.C., Alan A. Armour, Darrel L. Campbell, Denver, for plaintiffs-appellants.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Lynn B. Obernyer, First Asst. Atty. Gen., Denver, for defendants-appellees.

QUINN, Chief Justice.

The two questions raised in this appeal are (1) whether the control of outdoor advertising signs located within a home-rule municipality along roads of the state highway system is a matter of exclusively local or exclusively statewide concern, or is a matter of mixed local and statewide concern, and (2) whether the State Department of Highways (department) should be estopped from denying a permit for an outdoor advertising sign because a home-rule municipality already had issued a building permit for the sign. The district court held that the control of outdoor advertising is a matter of mixed statewide and local concern and that, consequently, the permit provisions of the Outdoor Advertising Act, §§ 43-1-401 to -420, 17 C.R.S. (1984 & 1987 Supp.), and the Roadside Advertising Regulations promulgated by the department, 2 Colo.Code Regs. § 601-3 (1983), superseded a conflicting provision of the city of Colorado Springs sign code. In so holding, the court implicitly rejected the claim that the department was estopped from challenging the validity of the sign on the basis of a sign permit issued pursuant to the municipal sign code. We affirm the judgment of the district court.

I.

This action was commenced in the District Court of El Paso County by National Advertising Company (National), Boychuk Construction, Inc., and Boychuk's president, Edgar Dill, against the department and three of its officers charged with the enforcement of the Outdoor Advertising Act. The complaint sought declaratory and injunctive relief against the department and its employees on the basis that the Home Rule Amendment to the Colorado Constitution, Colo. Const. art. XX, rendered the provisions of the act void and unenforceable against National's sign located within the home-rule municipality of Colorado Springs. The complaint raised the alternative claim that the department should be estopped from enforcing the act because the city of Colorado Springs had issued to National a building permit for the sign. ¹ The department and its employees filed an answer to the complaint. The parties then agreed to submit the case for trial to the court on the basis of the following stipulated facts.

Colorado Springs is a home-rule city. In its charter, the city has reserved to itself legislative, executive, and judicial powers over "all matters of local and municipal government," Charter, City of Colorado Springs, art. I, § 2(e) (1980), and, as well, the power "to supersede any law of this state, now or hereafter enforced, insofar as it applies to local or municipal matters," id. at art. XIX, § 158.

In August 1983, National applied to the Pikes Peak Regional Building Department, which was the delegated licensing entity for building activities within the city of Colorado Springs, for a building permit to erect a sign. The building permit was issued, and on September 8, 1983, National leased from Boychuk Construction a parcel of land adjacent to State Highway 83, located within the municipal boundaries of Colorado Springs, and in an area zoned for industrial or commercial uses subsequent to January 1, 1970. The lease between National and Boychuk Construction obligated National to pay Boychuk $18,000 for the leased premises over a ten-year period. After it obtained the building permit for the sign, National leased to U.S. Home Corporation for one year the advertising faces on the sign structure for $22,000. National then erected an outdoor advertising sign, in accordance with its building permit, at a cost of approximately $25,000.

At no time did National apply to the department for a sign permit, and, according to the stipulation, even if National had made such an application,the department would not have issued a permit due to the fact that the National sign exceeded the size limitations prescribed by the Outdoor Advertising Act. See § 43-1-404(1)(e)(I)(A), 17 C.R.S. (1984) (sign located along primary or secondary highways in areas zoned for industrial or commercial uses may not be larger than 150 square feet); 2 Colo.Code Regs. § 601-3(VII)(B)(1)(b) (1983) (same). On January 9, 1984, the department served National with a "Notice of Violation of the Outdoor Advertising Act," based in part on the size of its sign. ²

In ruling on the stipulated facts, the district court began its analysis by noting that in matters of both statewide and local concern a state statute and a municipal ordinance may coexist as long as they do not conflict, but that if they do conflict, the state statute supersedes the municipal ordinance. See, e.g., Delong v. City and County of Denver, 195 Colo. 27, 576 P.2d 537 (1976). The court then noted that, although zoning is generally considered to be a matter of exclusively local concern, the control of outdoor advertising devices located within a municipality and along the state highway system is clearly a matter of statewide interest, as manifested by the General Assembly's express declaration in the Outdoor Advertising Act. Since, in the district court's view, a clear conflict existed between the Colorado Springs sign code, which permitted the erection of National's sign, and the Outdoor Advertising Act, which prohibited the erection of the sign without a sign permit issued by the department, the court ruled that the act superseded the sign code. The court accordingly concluded that the act applied to National's sign and, since National had not obtained a sign permit from the department, the court ordered National to remove the sign. Although the court did not specifically address National's claim that the department should be estopped from enforcing the act against National's sign, the court's order that National remove the sign amounted to an implicit rejection of the estoppel claim.

In appealing the judgment, National, relying on the Home Rule Amendment in Article XX of the Colorado Constitution, initially claims that the control of advertising signs located within a home-rule municipality along roads of the state highway system is a matter of exclusively local concern and thus not subject to the regulatory scheme created by the Outdoor Advertising Act. ³ National next argues that the issuance of a permit to National, pursuant to the Colorado Springs sign code, estops the department from enforcing the Outdoor Advertising Act and Roadside Advertising Regulations against National's sign.

II.

We first consider National's claim that the control of outdoor advertising signs located within a home-rule municipality along roads of the state highway system is a matter of exclusively local concern and is thus exempt from the provisions of the Outdoor Advertising Act. The express purpose of Article XX of the Colorado Constitution is "to grant and confirm to the people of all municipalities coming within its provisions the full right of self-government in both local and municipal matters." Colo. Const. art. XX, § 6. It is well established that in a matter of exclusively local concern, a charter or ordinance provision of a home-rule municipality supersedes a conflicting state statute; in a matter of exclusively state concern, however, a state statute supersedes a conflicting charter or ordinance provision of a home-rule municipality; and, finally, in a matter of mixed local and statewide concern, a charter or ordinance provision of a home-rule municipality may coexist with a state statute as long as there is no conflict, but in the event of a conflict the state statute supersedes the conflicting provision of the charter or ordinance. E.g., City and County of Denver v. Colorado River Water Conservation District, 696 P.2d 730, 740-41 (Colo.1985); Denver & Rio Grande Western Railroad Co. v. City and County of Denver, 673 P.2d 354, 357-58 (Colo.1983); City and County of Denver v. Delong, 195 Colo. at 31-32, 576 P.2d 537, 540 (1978); Woolverton v. City and County of Denver, 146 Colo. 247, 252-59, 361 P.2d 982, 984-98 (1961). The pivotal questions in this case, therefore, are: (1) whether the statutory scheme for the control of outdoor advertising signs located within a home-rule municipality along the roads of the state highway system is a matter of exclusively local or of exclusively statewide concern, or instead is a matter of mixed local and statewide concern; and (2) if the matter is of mixed local and statewide concern, whether the provisions of the Outdoor Advertising Act conflict with the sign code adopted by Colorado Springs. See, e.g., Denver & Rio Grande Western Railroad Co., 673 P.2d at 358.

A.

There is no litmus-like indicator for resolving whether a matter is of local, statewide, or mixed concern. We have made such determinations on an ad hoc basis, taking into consideration the facts of each case. E.g., Colorado River Water Conservation District, 696 P.2d at 741; Denver & Rio Grande Western Railroad Co., 673 P.2d at 358. In light of the recognized legislative authority to declare the public policy of the state in matters of statewide concern, we have accorded great weight to the General Assembly's declaration that a particular matter is of statewide interest or concern. Century Electric Service and Repair, Inc. v. Stone, 193 Colo. 181, 183, 564 P.2d 953, 954 (1977); see also City and County of Denver v. Tihen, 77 Colo. 212, 219-20, 235 P. 777, 780-81 (1925)...