Veterans of Foreign Wars, Post 4264 v. City of Steamboat Springs

• Decision Date: 21 February 1978
• Docket Number: No. 27587,27587
• Citation: 575 P.2d 835,195 Colo. 44
• Court: Colorado Supreme Court
• Parties: , 8 Envtl. L. Rep. 20,391 VETERANS OF FOREIGN WARS, POST 4264, a non-profit Association, Yampa Valley Cooperative Association, a Colorado Corporation, F. M. Light & Sons, Inc., a Colorado Corporation, Eloise More, d/b/a Dairy King, Donald Brookshire, d/b/a Corner Liquor, Edward Detrich, d/b/a Waffle Shack, on behalf of themselves and as representatives of a class of persons similarly situated, Plaintiffs-Appellants, v. CITY OF STEAMBOAT SPRINGS, a Municipality established under the laws of the State of Colorado, Defendant-Appellee.

Page 835

575 P.2d 835

195 Colo. 44, 8 Envtl. L. Rep. 20,391

VETERANS OF FOREIGN WARS, POST 4264, a non-profit Association, Yampa Valley Cooperative Association, a Colorado Corporation, F. M. Light & Sons, Inc., a Colorado Corporation, Eloise More, d/b/a Dairy King, Donald Brookshire, d/b/a Corner Liquor, Edward Detrich, d/b/a Waffle Shack, on behalf of themselves and as representatives of a class of persons similarly situated, Plaintiffs-Appellants, v. CITY OF STEAMBOAT SPRINGS, a Municipality established under the laws of the State of Colorado, Defendant-Appellee.

No. 27587.

Supreme Court of Colorado, En Banc.

Feb. 21, 1978.

Rehearing Denied March 13, 1978.

Sharp, Black & Borden, P.C., Mary Jane Simmons, Steamboat Springs, for plaintiffs-appellants.

Ratcliffe & Chamberlin, Allen T. Ratcliffe, Jr., Dean Link, Steamboat Springs, for defendant-appellee.

ERICKSON, Justice.

The City of Steamboat Springs, a home-rule municipality, adopted a sign code in December of 1973 as part of the city's general zoning ordinance. ¹ The facts have been agreed to and are not in issue. The Steamboat Springs' sign code provides comprehensive regulation for all signs, with certain exceptions which are not in issue in this case. No sign, with limited exception, can be erected prior to the acquisition of a city permit, payment of a fee, and compliance with the sign code's regulations. Section 19(E)(2) of the sign code provides that any sign which extends more than three feet into or over public property shall be discontinued by September 1, 1975.

The appellants are a group of persons who own signs which extend more than three feet into or over public property in violation of Section 19(E)(2). The Veterans of Foreign Wars brought this action on behalf of themselves and all other persons affected by Section 19(E)(2), seeking a declaratory judgment that the sign code is unconstitutional and a permanent injunction against its enforcement. Trial to the court resulted in a judgment in favor of Steamboat Springs. We affirm.

The following issues are raised on appeal: (1) Do the appellants possess standing to challenge the sign code as being facially overbroad and vague? If so, (2) Is the sign code facially overbroad and vague? (3) Does the sign code constitute a prior restraint on the exercise of First Amendment rights? (4) Is Section 19(E)(2) a valid exercise of the police power? (5) Are the appellants' rights to the equal protection of the laws violated by Section 19(E)(2)'s requirement that all nonconforming signs must be terminated by September 1, 1975?

I. Standing

The appellants alleged and presented evidence in support of their contention that the entire sign code was facially invalid because it was overbroad and vague and also constituted a prior restraint upon the exercise of First Amendment rights. The trial court refused to reach the merits of these allegations on the basis that the appellants lacked standing to litigate those issues.

Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be permitted to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the court. However, a limited exception to this principle exists in First Amendment cases. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Bolles v. People, 189 Colo. ---, 541 P.2d 80 (1975).

A statute which is overbroad is objectionable, because it may discourage or "chill" persons from exercising their First Amendment rights. Such a statute is also invalid because it vests inordinate discretion in those charged with enforcement and administration of its provisions. Courts have, therefore, adopted a more liberal definition of standing in dealing with facial challenges to an overbroad statute on First Amendment grounds.

The United States Supreme Court reviewed the types of cases in which claims of facial overbreadth have been entertained in Broadrick v. Oklahoma, supra. Four broad categories of cases were listed: (1) cases involving statutes which sought to regulate "only spoken words"; (2) cases in which the court thought that rights of association might be burdened; (3) cases in which the statute purported to regulate the time, place, and manner of expressive or communicative conduct; and (4) cases in which expressive conduct required official approval under laws that delegated standardless discretion to local officials resulting in virtually unreviewable restraints on First Amendment rights.

The appellants' allegations concerning the sign code bring this case within the scope of the above cases and require us to address the facial constitutionality of the ordinance without a showing of direct injury. The appellants, therefore, possess standing under the First Amendment exception and are not foreclosed by traditional standing requirements to challenge the sign code. However, because of the result reached in this opinion, reversal is not required as a result of the trial court's ruling on the standing issue.

II. Overbreadth and Vagueness

We address the appellants' contentions on the merits, notwithstanding the trial court's dismissal on standing, because we consider the questions are of law and not of fact. Considerations of judicial efficiency and economy also warrant this action.

The challenges to Steamboat Springs' sign code must be examined in the light of general principles of zoning law. Zoning ordinances are presumed to be valid, and one assailing them bears the burden of overcoming that presumption by proof that the ordinance is invalid beyond a reasonable doubt. Ford Leasing Development Co. v. Board of County Commissioners, 186 Colo. 418, 528 P.2d 237 (1974); Bird v. City of Colorado Springs, 176 Colo. 32, 489 P.2d 324 (1971); City and County of Denver v. Chuck Ruwart Chevrolet, Inc., 32 Colo.App. 191, 508 P.2d 789 (1973). Where the reasonableness of a zoning ordinance is fairly debatable, it must be upheld. Nopro Co. v. Town of Cherry Hills Village, 180 Colo. 217, 504 P.2d 344 (1972). Zoning ordinances will not be disturbed unless the legislature has exceeded its power or has acted unreasonably. City of Greeley v. Ells, 186 Colo. 352, 527 P.2d 538 (1974).

When reviewing a claim that a statute is overbroad, we must determine whether the ordinance prohibits speech that is beyond the scope of governmental regulation. Bolles v. People, supra. First Amendment concerns arise whenever signs are regulated or prohibited, because signs are by their very nature a means of expression and communication within the meaning of the First Amendment. Commercial speech and more traditional types of speech are both entitled to First Amendment protection. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975).

The appellants initially contend that the sign code defines "sign" so broadly as to include all types of visual communication, including posters and picket signs. Section 2(B)(50) of the sign code, as contained within the city's zoning ordinance, defines "sign" as "an object or device or part thereof situated outdoors or indoors. . . ." Webster's New International Dictionary (2d ed. 1959) defines "situated" as:

"Having a site, situation or location; located, as a town situated on a hill. . . ."

We conclude that the sign code regulates only those signs which are affixed in some manner to real property so as to be "situated."

The appellants' overbreadth and vagueness contentions are primarily directed at a general restriction of the sign code contained in Section 19(A)(2):

"Signs shall identify or advertise only interests conducted on the lot of the sign location, unless the Board of Adjustment, upon request, determines that an off-site sign, conforming to the district regulations in which the sign is located, is necessary to promote the interests of the use to which it relates."

The sign code contains the following definitions:

"Sign Off Premises. 'Off premises sign' means a sign which contains a message unrelated to a business or profession conducted, or a commodity, service or entertainment sold or offered upon the premises which such sign is located and pertaining to a permitted use."

"Sign On Premises. 'On premises sign' means a sign directly pertaining to an existing permitted use on the property upon which said sign is located."

It is argued that the sign code is facially invalid, because it (a) effectively prohibits all off-premise signs, and (b) delegates standardless discretion to administrators, because exceptions are permitted by the sign code only if "necessary to promote the interests of the use to which it relates" a vague standard.

The regulation of conduct which touches First Amendment rights requires that we carefully balance the right of Steamboat Springs to exercise its police power against the ordinance's infringement on protected speech. In United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), reh. den., 393 U.S. 900, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968), the Supreme Court set forth several requirements for the regulation of conduct that threatens First Amendment rights. Such regulation is permissible:

"(I)f it is within the constitutional power of the government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. . . ." United States v. O'Brien, supra.

The Steamboat Springs' sign ordinance satisfies these four requirements.

First, this regulation is clearly within the city's constitutional power to enact. Home-rule cities, such as...