UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MOUNTAIN STATES MEDIA, LLC, a Colorado limited liability company; WAYNE OSTERLOO, an individual, Plaintiffs–Appellants,

v. ADAMS COUNTY, COLORADO, a Colorado governmental entity; ROBERT D. CONEY, an individual, Defendants–Appellees. No. 09-1360 (D.C. No. 1:08-CV -01513-CMA-BNB) (D. Colo.)

ORDER AND JUDGMENT *

Before LUCERO , McKAY , and O’BRIEN , Circuit Judges.

After being denied a permit to construct a billboard, Mountain States Media, LLC (“MSM”) and Wayne Osterloo proceeded to rely on what they considered an inconsistency in the Adams County, Colo rado, Development Manual (“Development

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral es toppel. This court generally disfavors the citation of orders and judgments; nevertheless , an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 30, 2010

Elisabeth A. Shumaker Clerk of Court-2- Manual”). Rather than cons tructing billboards, Osterloo in formed the County that MSM intended to construct “civic events posters and announcements,” a category exempt from Adams County sign regulations. The County repeatedly rebuffed Osterloo’s attempt to recharacterize his proposal—which co ncerns 672-square foot placards 1 raised thirty-five feet from the ground—as a proposal for “civ ic events posters and announcements.” Osterloo and MSM then filed suit against Ad ams County and an Adams County official in federal district court, asserting severa l 42 U.S.C. § 1983 claims and a declaratory judgment claim. 2 Plaintiffs appeal the district c ourt’s grant of summary judgment in favor of the defendants. Exercising jurisdicti on pursuant to 28 U.S.C. § 1291, we affirm the district court’s grant of summary judgment with respect to plaintiffs’ § 1983 claims. We vacate the district court’s judgment with respect to the declaratory judgment claim

and remand with instructions to dismiss for want of jurisdiction.

I Because this appeal is from a grant of summary judgment, we will recite the facts in the light most favorable to MSM and Osterloo, the losing parties below. MSM is an outdoor advertising company, owned by Osterloo, that obt ained lease rights to erect placards on parcels of property in Adams Co unty. Pursuant to the Development Manual,

1 As will be described infra , the regulations at issue in this appeal distinguish between “signs” and “billboards.” We use “pla card” throughout this order as a generic term that may refer to eith er “signs” or “billboards.”

2 Plaintiffs asserted additional clai ms that they have since abandoned.-3- anyone wishing to construct a billboard must first obtain a conditional use permit. See Development Manual § 4-15. MSM applied fo r a permit under these regulations but was denied on the grounds that: 1. [The proposed billboard] is not consistent with the purposes of the [Development Manual]. 2. [The proposed billboard] is not comp atible with the surrounding area, is not harmonious with the character of the neighborhood, would be detrimental to the immediate area, wo uld be detrimental to the health, safety, or welfare o f [sic] the inha bitants of the area and the county. 3. [The permit application] has not addressed all off-site impacts. 4. The site is not suitable for the [propose d billboard]. 5. The site plan for th e [proposed billboard] does not provide for the most convenient and functional use of the lot. Neither party disputes that the County’s dete rmination was made in accordance with its stated criteria for evaluating co nditional use permit applications. See Development Manual § 2-02-08-06. After the initial permit rejection, Osterl oo inquired about a large, County-owned placard located just off of the Adams County Re gional Park and Fairgrounds that directs drivers to the fairgrounds. Any group that rents out the fairgrounds may advertise its event on the fairgrounds placard; use of the sign is included in th e fee for renting the fairgrounds. Examples of the type of event held at the fairgrounds include “Gene’s October Swap Meet,” “Teresa Dudden Barrel Racing,” “Chuck and Duck Roping,” and the “Colorado State Pigeon Show.” The Co unty does not have a conditional use permit for this placard.-4- Dennis Bell, a planning assistant with the Planning and Development Department, responded to Osterloo as follows: [The fairgrounds placard] was origin ally constructed under Sign Permit # 109 and approved on June 3, 1971. . . . Staff finds that the reason the Parks Department was not required to obtain an approv ed Conditional Use Permit for the fairgrounds sign is due to the fact that the Parks Department sign is a Government Sign rather th an an Off-Premise Sign (billboard) and further, that Government Signs were exempted in 1971 pursuant to the zoning regulations in effect at the time.

Osterloo then notified the C ounty that MSM in tended to build “civic events posters and announcements” on its leased prope rty, rather than billboards. Under the Development Manual, “Off-Premise Sign (Billboa rd)” rules are contai ned in § 4-15, but “Signs and Outdoor Commercial Advertising Devices” are covered by § 4-14. The latter regulations provide: EXEMPTED SIGNS The provisions of this Section 4- 14 do not apply to the following, which are therefore excepted from these provisions.

. . . . 8. Civic Events Posters and Announcements : Posters, flyers and announcements promoting civic events may be displayed, but shall not contain advertisements for products or se rvices not associated with the civic event. § 4-14-03-01. The parties refer to this provision as the “CEPA exemption.”

In his communications with the County, Osterloo represented that MSM would initially build three large placards, each approxima tely 672 square feet in area and thirtyfive feet off the ground—with fi fteen more such placards to follow. These placards were substantially similar to the b illboards originally proposed. However, Osterloo-5- represented that the placards would contain only messages promoting civic events, and that products or services not associated with the event would not be advertised. Referencing the fairgrounds placard, Osterloo insi sted that if “the County is to remain consistent than [sic] the zoni ng department must automati cally approve these ‘signs’.” In response, Abel Montoya, a planning manager for the Adams County Planning and Development Department, informed Oste rloo that the placards MSM proposed to

build were considered billboards rather th an CEPA signs, and that only recognized political subdivisions of the state of Colora do were eligible fo r the CEPA exemption. In an increasingly heated exchan ge, Osterloo claimed that the County had engaged in years of “abusive, unethical, and di scriminating behavior,” and th at, because CEPA signs “are exempt from any sign regulation or permits . . . [and] building permits and fees,” they existed in a “type of [regulatory] envi ronment we cannot pass up.” After various members of the Planning and Development Department insisted that the proposed placards were billboards rather than CEPA signs, Osterloo responded that he had “had enough of these ridiculous and illegal ac tions” and suggested a County attorney “convince someone to pull their head out [sic] th eir [expletive] and deal with this issue in

a rational and civil manner.” Th e Planning Department remained firm in its classification of the proposed placards as billboards, subject to the regulations contained in Development Manual § 4- 15 and requiring a conditio nal use permit. Robert Coney, the director of the Pla nning and Development Department, stated

that he “made the determination that the CEPA exception did not apply to commercial-6- billboards” because th e CEPA exemption: (1) only co vered signs related to events “sponsored by governments, not commercial advertising”; (2) applied only to signs erected by governmental entities; and (3) ap plied only to “small fo rms announcing civic

events” rather than “trad itionally sized billboards.” MSM then challenged the Planning and De velopment Department’s interpretation of the CEPA exemption with the Adams County Board of Adjustment. See Development Manual § 1-02-03-12-03 (granting the Board of Adjustment the authority to hear appeals

from the determination of an administrative o fficial). MSM alleged that interpreting the CEPA exemption to only appl y to government entities conflicte d with the plain text of the exemption and violated the First and F ourteenth Amendments to the United States Constitution. The Planning and Development Department argued that, under the Development Manual, MSM’s proposed placards we re classified as b illboards rather than signs. It further noted the provisions for CE PA signs had not been enacted until after the fairgrounds placard had been built, but pointed to the fairgrounds placard as an example of what a CEPA sign would look like “[i]f the county were to erect a CEPA sign today.” After considering the arguments of both side s, the Board of Adjustment unanimously upheld the Department’s determination that MSM would have to obtain a conditional use permit for billboards in order to move forward with the proposed placards.

MSM and Osterloo then filed a federa l suit against Adams County and Coney. They alleged that Adams Coun ty’s application of the CEPA exemption violated MSM’s federal constitutional rights to freedom of speech and equal protection, and sought a-7- declaratory judgment interpreting the CE PA exemption as applicable to both governmental and private entities. The district court granted summary judgment to the

defendants on all claims and determined th at Coney was entitled to qualified immunity. MSM timely appealed the grant of summary judgment on its freedom of speech, equal protection, and declaratory relief claims. 3

II We review a grant of summary judgment de novo. Shero v. City of Grove , 510 F.3d 1196, 1200 (10th Cir. 2 007). Summary judgment is a ppropriate if “there is no genuine issue as to any material fact and th e moving party is entitled to a judgment as a matter of law.” Beaird v. Seagate Tech., Inc. , 145 F.3d 1159, 1165 (10th Cir. 1998) (quotation and alteration omitted ). In conducting our evalua tion, we do not defer to a district court’s legal conclusions, including its interpretations of state law. Thomson v. Salt Lake County , 584 F.3d 1304, 1 312 (10th Cir. 2009).

A Plaintiffs contend that “private pe rsons and entities in Adams County are absolutely barred from erecting or maintaining signs that announce or promote ‘civic events,’ regardless of size.” This assertion is entirely unsupported by the record. County

3 Although Coney was included in the caption on appeal, plaintiffs do not challenge the district court’s grant of qualif ied immunity. We therefore dismiss Coney as a party to this appeal, and proceed only with respect to plaintiffs’ claims against Adams County.-8- regulations provide that small signs, resident ial signs, and various other exempted signs may be built without a permit. See Development Manual §§ 4-14-03-01, 4-14-05. Further, extant billboards may carry messages rela ted to civic events or other content, and private entities may erect new b illboards that will contain any type of content provided they first obtain a conditional use permit. See § 14-15 (laying out only content-neutral requirements for billboards). Although plaintiffs attemp t to frame the CEPA exemption as somehow limiting their speech, that provision is merely an ex ception to certain regulations—it does not limit anyone in any manner. Instead, the regula tions that actually lim it plaintiffs’ speech are the billboard permitting requirements found in Development Manual § 4-15. There is no dispute in the record that these are the regulations the County used in denying MSM’s proposal. Billboard permitting requirements undoubte dly burden the use of billboards as a medium for speech, but the County’s permitting scheme does not constitute a total ban on civic events speech by private parties. Th e Supreme Court has e xplained that “[t]he

distinction between la ws burdening a nd laws banning speech is but a matter of degree.” United States v. Playb oy Entm’t Group, Inc. , 529 U.S. 803, 812 (200 0). Nevertheless, it has also held that reasonable regulations of the physical characteristics of signs are generally acceptable: While signs are a form of expression protected by the Free Speech Clause, they pose distinctive problems that are subject to municipalities’ police powers. Unlike oral speech, signs take up space and may obstruct views,-9- distract motorists, displace altern ative uses for land, and pose other problems that legitimately call for regul ation. It is common ground that governments may regulate the physical characteristics of signs—just as they can, within reasonab le bounds and absent censorial purpose, regulate audible expression in its capacity as noise. City of Ladue v. Gilleo , 512 U.S. 43, 48 (1994 ) (citations omitted). Yet, stubbornly clinging to the theory that the CPEA exemption is somehow a limitation on their speech, plainti ffs fail to address Developmen t Manual § 4-15 at all. The record demonstrates that any placard of any type may display speech related to civic events after it has been duly constructed in accordance with the Development Manual, and plaintiffs have advanced no reasoned ar gument challenging the actual restrictions contained in the Development Manual. Nor could they on the record before us: It is well establishe d that requiring all billboards to be authorized by a conditional us e permit prior to their construction does not offend freedom of speech, Gilleo , 512 U.S. at 48, provided the permitting process does not delegate excessive discretion to the licensing authority, Freedman v. Maryland , 380 U.S. 51, 56 (1965), or allow the licensing authority to inde finitely postpone decision making, FW/PBS, Inc. v. City of Dallas , 493 U.S. 215, 226 (1990) (plurality opinion). On its face, § 4-15 of the De velopment Manual sets out re asonable standards to guide a decision maker in determining whether a cond itional use permit is appropriate. Further, the County did not unreasonably de lay in deciding plaintiffs’ reque sts. Each of plaintiffs’ applications and letters to the County were responded to in a timely fashion. Thus, plaintiffs’ § 1983 claims based solely on the First Amendment fail.-10- B Although the CPEA exemptio n does not limit plaintiffs’ speech, it may form the basis of an equal protection claim that “i s closely intertwined with First Amendment interests.” Police Dep’t of Chicago v. Mosley , 408 U.S. 92, 95 (1972); see also Congregation Lubavitch v. City of Cincinnati , 997 F.2d 1160, 1165 (6th Cir. 1993) (noting that cases involving “the First Am endment–Equal Protection intersection” are generally evaluated using an equal protection analysis (quotation omitted)). Plaintiffs challenge the CEPA exemption as interpreted and applied; we must begin, therefore, by examining how the County has applied it. 4 According to th e County, the CEPA exemption applies only to: (1) signs small en ough that they do not qualify as billboards; (2) signs owned by the government; (3) si gns advertising government or governmentsponsored events; and (4 ) signs that are noncommercial in nature. Plaintiffs concentrate their briefing on the second and third factors. Given that the first factor (size) would appear to disq ualify MSM’s proposed placards from being treated as a CPEA sign, however, we focus on that issue. See Rocky Mountain Christian

Church v. Bd. of County Comm’rs , __ F.3d __, 2010 WL 280 2757 at *6 (10th Cir. 2010)

4 The district court seems to have treated plaintiffs’ claim as a facial challenge to the CEPA exemption, and first engage d in an analysis of its meaning. Given plaintiffs’ confused briefing, which switc hes between objections to th e CEPA exemption as written and as applied, this error is understanda ble. But plaintiffs ’ complaint explicitly challenges the County’s “interpretation and a pplication” of the CEPA exemption, and we will hold them to this constr uction of their claims. See Fed. R. Civ. P. 8.-11- (“Generally, we wish to avoid, when possi ble, deciding constitu tional questions and thereby overturn legislative enactments and etch in stone rules of la w beyond the reach of most democratic process.” (quotation omitted )). Although the district court did not address the sign–billboard size distinction, “we may affirm on any ground adequately supported by the record provided that the par ties have had a fair opportunity to address

it.” Hobbs v. Zenderman , 579 F.3d 1171, 1179 n.2 (10th Cir. 2009). Both parties have briefed the size issue on appeal, and the record is adequately devel oped to allow us to

decide it. The term “billboard” is commonly understoo d to mean “a large panel designed to carry outdoor advertising and mounted on a building or framework near a road.”

Webster’s 3d New Int’l Dictionary Unabridged 215 (1993). There can be little doubt that MSM’s proposed placards fall squarely into this category. Although there may exist some gray area between “billboard” and “[p]os ters, flyers and anno uncements promoting civic events,” Development Manual § 4- 14-03-01, 672-square-foot placards set on a platform that extends thirty-five feet off of the ground are clearly billboards. Because the CEPA provision operates only to exempt si gns from the requirements of Development Manual § 4-14, see id. § 4-14-03-01, the County’s ap plication of the regulations contained in Development Manual § 4-15 to th e plaintiffs’ proposed placards appears to-12- be a proper. 5 Requiring all billboards to be authorized by a conditional use pe rmit prior to their construction does not violate equal protection. See Ladue , 512 U.S. at 51 & n.9. Plaintiffs, however, dispute that the County ha s interpreted the CEPA exemption to apply only to signs that are smaller than billboards. They first assert that the County is raising such an argument for the first time on appeal, but this argumen t, too, is contradicted by

the record. In an affidav it submitted with defe ndants’ dispositive motion, Coney averred that the CEPA “signs are small forms” and not “traditionally sized billboards.” Next, plaintiffs assert that the County’s classification of the fa irgrounds placard as a CEPA exemption sign demonstrates that the CEPA exemption is not limited to small signs. Although the Development Manual do es not specify how big a placard must be before it becomes a billboard, Adams County concedes on appeal that the fairgrounds placard would be classified as a billboard under current regulations and, were it built today, would require a conditional use permit. Moreover, it is clear that Adams County has not applied the CEPA exemption to allow for the construction of large billboards. Although we do not weigh evidence, we

5 To the extent that plaintiffs attemp t to challenge the Co unty’s interpretation unmoored from their particular circumstances, they would lack standing to do so. “The traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be ap plied unconstitutionally to others in situations not before the C ourt.” L.A. Police Dep’t v. United Reporting Publ’g Corp. , 528 U.S. 32, 38 (1999) (quotation omitted). Plaintiffs do not argue on appeal that an exception to this traditional rule should apply.-13- note for context that the record is ambiguous with respect to whet her the County ever actually classified the fairgrounds placard as a CEPA exemption sign . For example, in response to the question, “When did the count y first make any determination whatsoever that the CEPA exemption applied to any sp ecific location?” Coney responded, “I’m not sure that we did.” Coney also responded to the question, “Is it your determination that the CEPA exemption does not apply to the [fa irgrounds placard]?” with, “I don’t believe it does because it’s [sic] history.” Coney also referenced the fact that the fairgrounds placard is a nonconforming sign. The portion of Coney’s depo sition that plaintiffs claim demonstrates Coney ad mitted the fairgrounds placard is a CEPA exemption sign is, unfortunately, laden with tran scription errors to the po int of being unintelligible. 6 Although a reasonable jury could conclu de that the County reclassified the fairgrounds placard as a CEPA exemption sign almost forty years after it was built, there is no evidence that the fairgrounds placard was built as a CEPA sign. When the fairgrounds placard was built in 1971, the CEPA exemption did not exist. Plaintiffs cannot point us to any placard erected pur suant to the CEPA ex emption. Thus, a reasonable jury would have no basis for concluding that a large billboard could be constructed under the CEPA exemption, by either a government or a private entity. Of course, the County’s treatment of the fairgrounds placard—allowing it to remain standing even though it now would be classified as a billboard and would require

6 For example, the reporter transcribed one question as, “Yes phone conforming from the sign code note note none.”-14- a conditional use permit to be built—must also pass constitutional muster. Although this circuit appears to have never squarely addresse d the issue, the Ninth Circuit has held that “grandfathering in” billboard s—banning construction of new billboards that are not in compliance with current regulations but a llowing previously built, non-conforming

billboards to remain—can surv ive an equal protection challe nge. Maldonado v. Morales , 556 F.3d 1037, 1048 (9th Ci r. 2009). We agree. The Development Manual prov ision dealing with grandfat hering is content-neutral and applies equally to the governme nt and to private parties. See § 1-01-09-02. As such, intermediate scrutiny of grandfathering is appropriate. See Turner Broadcasting Sys.,

Inc. v. FCC , 512 U.S. 622, 662 (1994). A regula tion will survive such scrutiny if “it furthers an important or substantial government al 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.” Id. (quotation omitted). Restricting the constructi on of billboards but allowing legal non-conforming

billboards to remain furthers the County’s stated intere st in avoiding clutter and improving public safety and welfare. See Development Manual §§ 1-1-03, 4-14-01. Such interests are undeniably substantial and unrelated to the suppression of speech. The County also has an interest in distinguishing between existing and proposed billboards: It could be compelled to pay just compensation to the owners of exis ting billboards if the County demanded the existing, noncomp liant billboards be removed. See Maldonado ,-15- 556 F.3d at 1048. Further, the fit between the practice of grandfathering and these interests is sufficient to pass intermediate scrutiny. See id. The County differentiates between existing and proposed billboa rds without additional distinctions.

We do not address whether the constitutiona l rights of a private entity that wished to construct a placard smaller than a billboard , for the sole purpose of engaging in speech related to civic events, would be violated by the County’s permit requirements. Nor do we address how broadly the County could co nstrue the term “civic events” under the CEPA exemption without becoming similarly s ituated to private parties for the purpose of an equal protection analysis. The record be fore us demonstrates that plaintiffs have only sought to construct billboards, and that everyone in Adams County must obtain a permit before erecting a billboard. The County is well within its right s to enforce such a zoning scheme. Therefore, the district court’ s grant of summary judg ment with respect to plaintiffs’ § 1983 equal pr otection claim was proper.

III

Plaintiffs seek a determination that the plain text of the CEPA exemption requires it to be applied equally to private parties and government entities. Having determined that plaintiffs do not present a valid § 1983 claim, we conclu de that the district court’s exercise of supplemental ju risdiction over this claim was an abuse of discretion. 7

7 Although the precise nature of plainti ffs’ claim seeking declaratory relief is unclear, plaintiffs solely relied on supplement al jurisdiction both in their complaint and on appeal.-16- When a district court has original juri sdiction over claims arising under federal law, it has “supplemental jurisdiction over all ot her claims that are so related to claims in

the action within such original jurisdiction that they fo rm part of the same case or controversy under Article III of the United St ates Constitution.” 28 U.S.C. § 1367(a); see

also Chicago v. Int’l Coll. of Surgeons , 522 U.S. 156, 165 (1997). Plaintiffs’ declaratory judgment claim is a “legal ‘claim[],’ in the se nse that that term is generally used in this context to denote a judicially cognizable cause of action.” Id. Further, MSM’s declaratory and § 1983 claims “derive fro m a common nucleus of operative fact”— namely, MSM’s unsuccessful effort to build placards—and thus “form part of the same case or controversy under Article III.” Id. However, a district court may decline to exercise supplemental jurisdiction if: (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predomin ates over the claim or claims over which the district court ha s original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circum stances, there are other compelling reasons for declining jurisdiction. § 1367(c). When a district court properly co ncludes that it has supplemental jurisdiction pursuant to § 1367(a), we review a district court’s discretionary decision to exercise supplemental jurisdiction for abuse of discretion. See Summum v. Duchesne City , 482 F.3d 1263, 1276 (10th Cir. 2007 ), vacated on other grounds by Duchesne City v.

Summum , 129 S. Ct. 1523 (2009).-17- Plaintiffs’ declaratory claim is preci sely the type of claim over which supplemental jurisdiction should not be exercised: Plainti ffs ask the federal courts to interpret a local zoning ordinance in the fi rst instance. Zoning law is a uniquely local concern with which “[f]ederal co urts should be reluctant to inte rfere.” Norton v. Vill. of

Corrales , 103 F.3d 928, 933 (10th Cir. 1996). “We decline to sit as zoning boards of appeals when presented with claims which, although couched in constitutional language, at bottom amount only to the run of the m ill dispute between a developer and a town planning agency.” Gunkel v. City of Emporia , 835 F.2d 1302, 1305 (10th Cir. 1987). Because plaintiffs’ § 1983 clai ms have been dismissed, th ey seek a declaration as to the meaning of a county zoning ordina nce that does not violate their federal constitutional rights. They do so despite the av ailability of state judicial review pursuant to Colo. R. Civ. P. 106(a)(4). See Sundheim v. Bd. of County Comm’rs , 904 P.2d 1337, 1345 (Colo. Ct. App. 1995) (“An action for judicial review under C.R.C.P. 106(a)(4) is the exclusive remedy for contesting a zoning decision when the entire zoning ordinance is not challenged and when reco rd review of the county proc edure provides an adequate remedy. When only declaratory relief is re quested, claims brought under 42 U.S.C. § 1983 effectively merge into the C.R.C.P. 106 claim.” (citations omitted)). Under these circumstances, the district court should have first granted summary judgment on plaintiffs’ § 1983 claims and then dismisse d plaintiffs’ declaratory judgment claim for want of supplemental jurisdiction. It was an abuse of discretion for the district court to

have done otherwise.-18- IV For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment with respect to pl aintiffs’ § 1983 claims. We VACATE the district court’s grant of summary judgment with respect to pl aintiffs’ declaratory judgment claim, and

remand with instructions to DISMISS the claim for want of jurisdiction.

Entered for the Court

Carlos F. Lucero Circuit Judge