Orsinger Outdoor Advertising, Inc. v. Department of Highways of State of Colo., 86SA215
| Decision Date | 22 February 1988 |
| Docket Number | No. 86SA215,86SA215 |
| Parties | ORSINGER OUTDOOR ADVERTISING, INC., Plaintiff-Appellant, v. The DEPARTMENT OF HIGHWAYS OF the STATE OF COLORADO, Robert Clevenger, the Department of Administration of the State of Colorado, and Thomas R. Moeller, Defendants-Appellees. |
| Court | Colorado Supreme Court |
Holme Roberts & Owen, Pamela J. Strauss, Lawrence L. Levin, Clifford P. Jones, Englewood, for plaintiff-appellant.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Mark E. May, and Lynn B. Obernyer, Asst. Attys. Gen., Denver, for defendants-appellees.
Orsinger Outdoor Advertising, Inc. (Orsinger) appeals from a district court judgment upholding the decision of the Department of Highways (department) denying Orsinger's applications for sign permits because the signs did not comply with the spacing requirements of the Roadside Advertising Regulations (regulations), 2 Colo.Code Regs. § 601-3 (1983), promulgated by the department pursuant to the Outdoor Advertising Act, §§ 43-1-401 to -420, 17 C.R.S. (1984 and 1987 Supp.). 1 The issues on this appeal range over a broad area. Orsinger challenges the Outdoor Advertising Act and the regulations as violative of due process of law, and also contends that the department enforced the regulations against it in a discriminatory manner in violation of equal protection of the laws. Orsinger further asserts that the Outdoor Advertising Act unlawfully delegates legislative authority to the department by not providing adequate standards for the exercise of the department's rulemaking authority, and that, even if the Outdoor Advertising Act grants some rulemaking authority to the department, the regulations dealing with the spacing requirements between signs exceed the scope of the department's authority. Orsinger additionally argues that the department, in denying Orsinger's applications for sign permits, incorrectly interpreted and applied the spacing regulations; that the hearing officer improperly allocated the burden of proof at the administrative phase of the permit hearing; that the department was estopped from applying its regulations to one of the two signs for which Orsinger sought permits; and that the department's denial of Orsinger's applications was arbitrary, capricious, an abuse of discretion, and unsupported by substantial evidence. Finding no error, we affirm the judgment of the district court.
The Outdoor Advertising Act provides that any outdoor advertising sign located along primary and secondary highways in areas zoned under authority of state law for industrial or commercial purposes may be erected and maintained only when in compliance with the rules and regulations of the department. § 43-1-404(1)(e), 17 C.R.S. (1984). The regulations adopted by the department require a permit for any such sign adjacent to the state highway system. 2 Colo.Code Regs. § 601-3(VII) (1983). "Areas adjacent to the state highway system" include those areas "which are visible from the main-traveled way and within 660 feet of the nearest edge of the right-of-way." Id. § 601-3(IV)(E).
Orsinger erected two outdoor advertising signs in January 1982 and electrified the signs in February of that year. Both signs were located in areas zoned for industrial or commercial uses under authority of state law. One sign was located at 725 S. Monaco Parkway in Denver (the Monaco sign) and the other at 9899 E. Iliff Avenue in Arapahoe County (the Iliff sign). Orsinger had previously obtained building permits from the City and County of Denver for the Monaco sign and from Arapahoe County for the Iliff sign. The Monaco sign was visible from and within 660 feet of Leetsdale Drive, which is State Highway 83, and the Iliff sign was likewise visible from and within 660 feet of Parker Road, which is also State Highway 83.
Ronald E. Scott, the department's sign inspector, first noticed the Monaco sign structure on February 8, 1982. Scott made measurements of the distances between the Monaco sign and the other signs in the area in accordance with regulation 601-3(X)(N), which states that "[d]istances between sign structures located on the same side of the highway shall be measured along the nearest edge of the pavement between points directly opposite the closest points of the signs to the highway." The department's interpretation of this regulation is that distances between sign structures on the same side of the highway shall be determined by projecting a line commencing at and perpendicular to the edge of the highway pavement and extending to that part of the sign closest to the highway, then by projecting a similar line to another sign in the area, and by measuring the distance between the lines at the edge of the highway pavement. Scott followed this procedure and determined that the Monaco sign was only twenty feet from a nearby sign and thus was in violation of regulation 601-3(VII)(B)(3)(b)(2), which prohibits any two signs from being spaced less than 100 feet apart within an incorporated village or city.
Scott met with Elwood E. Curtis, Orsinger's regional lease manager, and explained to him that any advertising on the Monaco sign would be in violation of the spacing requirement, unless the advertising was "on-premise advertising." 2 In May 1982, Scott noticed that advertising visible from State Highway 83 had been mounted on the Monaco sign and that the advertising was not "on-premise advertising." Scott informed Curtis that Orsinger must apply to the department for a sign permit. In early June 1982, Orsinger made application for a sign permit, but the application was denied due to the spacing violation.
Scott first became aware of the Iliff sign on April 8, 1982, and again contacted Curtis and met with him at the sign site on that day. Scott measured the distance between the Iliff sign and another adjacent sign at approximately 100 feet. 3 Believing that the sign was within the municipal boundaries of Denver, Scott mistakenly told Curtis that the sign satisfied the spacing requirement and told Curtis that he should seek a permit. In fact, however, the Iliff sign was located in an unincorporated area of Arapahoe County and thus was in violation of regulation 601-3(VII)(B)(3)(b)(1), which prohibits any two signs from being spaced less than 300 feet apart outside of an incorporated village or city. Although Curtis knew at this time that the Iliff sign was in an unincorporated area of Arapahoe County, he did not inform Scott of that fact. Scott later learned of the true location of the Iliff sign and told Curtis that he had made a mistake in stating that the sign conformed to the spacing requirement. 4 In late May 1982 Orsinger applied to the department for a permit for the Iliff sign, but again the application was denied due to the violation of the spacing regulation.
In October 1982, Orsinger, pursuant to section 43-1-412(3), 17 C.R.S. (1984), requested the department to conduct a hearing on the denial of sign permits for the Monaco and Iliff signs. The hearing was conducted by a hearing officer on February 23 and March 17-18, 1983. Orsinger raised several constitutional challenges to the Outdoor Advertising Act and the regulations promulgated thereunder by the department, but the hearing officer refused to rule on those claims as beyond his authority. See, e.g., Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971). At the outset of the hearing, the hearing officer ruled that the burden of proof was on the department to establish that Orsinger's signs did not comply with departmental regulations. Subsequent to the evidentiary phase of the hearing, however, the hearing officer in a written decision on April 14, 1983, acknowledged that his initial determination concerning the burden of proof was incorrect and expressly determined that, notwithstanding that error, the department carried the burden and established that it properly had denied Orsinger's permit applications. The hearing officer also concluded that the department had authority to regulate signs not legible from nor oriented toward a state highway, that the department correctly interpreted and applied regulation 601-3(X)(N) in measuring distances between signs, and that the sign inspector's incorrect statement to Orsinger's regional lease manager about the Iliff sign did not estop the department from enforcing its spacing regulations against the Iliff sign. The hearing officer ordered Orsinger to remove the advertising devices within sixty days.
Pursuant to the State Administrative Procedure Act, § 24-4-105(15), 10 C.R.S. (1982), Orsinger appealed the decision of the hearing officer to the chief engineer of the department. In affirming the hearing officer's decision, the chief engineer ruled that the hearing officer's placement of the burden of proof on the department was harmless error, in that the department actually established that "its denial of the outdoor advertising sign permits was correct." The chief engineer also rejected Orsinger's estoppel claim with respect to the Iliff sign because Orsinger, with knowledge of the department's spacing regulation, had erected the sign structure and installed lighting for the structure before it ever inquired of the department whether a permit was necessary. 5
Orsinger then filed in the Denver District Court an action for judicial review of the chief engineer's decision. The district court affirmed the order of the chief engineer, ruling as follows: the Outdoor Advertising Act and the department's regulations are reasonably related to legitimate governmental interests; Orsinger failed to establish that the department engaged in selective or discriminatory enforcement of its regulations against the Monaco and Iliff signs; the Outdoor Advertising Act vests the department with authority to promulgate regulations and the regulations promulgated by...
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