                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            July 30, 2010
                                   TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court


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

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

        Defendants–Appellees.


                             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, Colorado, Development Manual (“Development


      * This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. 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.
Manual”). Rather than constructing billboards, Osterloo informed 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 concerns 672-square foot placards1 raised thirty-five

feet from the ground—as a proposal for “civic events posters and announcements.”

Osterloo and MSM then filed suit against Adams County and an Adams County official

in federal district court, asserting several 42 U.S.C. § 1983 claims and a declaratory

judgment claim.2 Plaintiffs appeal the district court’s grant of summary judgment in

favor of the defendants. Exercising jurisdiction 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 obtained lease rights to erect

placards on parcels of property in Adams County. 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 “placard” throughout this order as a generic
term that may refer to either “signs” or “billboards.”
       2
           Plaintiffs asserted additional claims that they have since abandoned.


                                              -2-
anyone wishing to construct a billboard must first obtain a conditional use permit. See

Development Manual § 4-15. MSM applied for 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 compatible with the surrounding area, is
       not harmonious with the character of the neighborhood, would be
       detrimental to the immediate area, would be detrimental to the health,
       safety, or welfare o f [sic] the inhabitants 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 [proposed billboard].

       5. The site plan for the [proposed billboard] does not provide for the most
       convenient and functional use of the lot.

Neither party disputes that the County’s determination was made in accordance with its

stated criteria for evaluating conditional use permit applications. See Development

Manual § 2-02-08-06.

       After the initial permit rejection, Osterloo inquired about a large, County-owned

placard located just off of the Adams County Regional 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 the 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 County does not have a conditional use permit

for this placard.
                                             -3-
       Dennis Bell, a planning assistant with the Planning and Development Department,

responded to Osterloo as follows:

       [The fairgrounds placard] was originally 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 approved Conditional Use
       Permit for the fairgrounds sign is due to the fact that the Parks Department
       sign is a Government Sign rather than 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 County that MSM intended to build “civic events

posters and announcements” on its leased property, rather than billboards. Under the

Development Manual, “Off-Premise Sign (Billboard)” rules are contained 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 services 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 approximately 672 square feet in area and thirty-

five feet off the ground—with fifteen more such placards to follow. These placards were

substantially similar to the billboards originally proposed. However, Osterloo
                                             -4-
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 insisted that if “the County is to remain

consistent than [sic] the zoning department must automatically approve these ‘signs’.”

       In response, Abel Montoya, a planning manager for the Adams County Planning

and Development Department, informed Osterloo that the placards MSM proposed to

build were considered billboards rather than CEPA signs, and that only recognized

political subdivisions of the state of Colorado were eligible for the CEPA exemption. In

an increasingly heated exchange, Osterloo claimed that the County had engaged in years

of “abusive, unethical, and discriminating behavior,” and that, because CEPA signs “are

exempt from any sign regulation or permits . . . [and] building permits and fees,” they

existed in a “type of [regulatory] environment 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 actions” and suggested a County attorney

“convince someone to pull their head out [sic] their [expletive] and deal with this issue in

a rational and civil manner.” The 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 conditional use permit.

       Robert Coney, the director of the Planning and Development Department, stated

that he “made the determination that the CEPA exception did not apply to commercial
                                            -5-
billboards” because the CEPA exemption: (1) only covered signs related to events

“sponsored by governments, not commercial advertising”; (2) applied only to signs

erected by governmental entities; and (3) applied only to “small forms announcing civic

events” rather than “traditionally sized billboards.”

       MSM then challenged the Planning and Development 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 official). MSM alleged that interpreting the

CEPA exemption to only apply to government entities conflicted with the plain text of

the exemption and violated the First and Fourteenth Amendments to the United States

Constitution. The Planning and Development Department argued that, under the

Development Manual, MSM’s proposed placards were classified as billboards rather than

signs. It further noted the provisions for CEPA 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 sides, 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 federal suit against Adams County and Coney.

They alleged that Adams County’s application of the CEPA exemption violated MSM’s

federal constitutional rights to freedom of speech and equal protection, and sought a
                                             -6-
declaratory judgment interpreting the CEPA exemption as applicable to both

governmental and private entities. The district court granted summary judgment to the

defendants on all claims and determined that 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. 2007). Summary judgment is appropriate if “there is no

genuine issue as to any material fact and the 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 evaluation, 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, 1312 (10th Cir. 2009).

                                              A

       Plaintiffs contend that “private persons 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 qualified immunity. We therefore dismiss Coney as
a party to this appeal, and proceed only with respect to plaintiffs’ claims against Adams
County.


                                              -7-
regulations provide that small signs, residential 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 related to civic events or other content, and

private entities may erect new billboards 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 attempt to frame the CEPA exemption as somehow limiting

their speech, that provision is merely an exception to certain regulations—it does not

limit anyone in any manner. Instead, the regulations that actually limit 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 undoubtedly 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. The Supreme Court has explained that “[t]he

distinction between laws burdening and laws banning speech is but a matter of degree.”

United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 812 (2000). 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,
                                             -8-
       distract motorists, displace alternative uses for land, and pose other
       problems that legitimately call for regulation. It is common ground that
       governments may regulate the physical characteristics of signs—just as
       they can, within reasonable 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, plaintiffs fail to address Development 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 argument challenging the actual restrictions

contained in the Development Manual.

       Nor could they on the record before us: It is well established that requiring all

billboards to be authorized by a conditional use 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 indefinitely 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 Development Manual sets out reasonable standards to guide a

decision maker in determining whether a conditional use permit is appropriate. Further,

the County did not unreasonably delay in deciding plaintiffs’ requests. 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.
                                            -9-
                                             B

       Although the CPEA exemption does not limit plaintiffs’ speech, it may form the

basis of an equal protection claim that “is 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 Amendment–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 the County, the CEPA

exemption applies only to: (1) signs small enough that they do not qualify as billboards;

(2) signs owned by the government; (3) signs advertising government or government-

sponsored 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 disqualify 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 2802757 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 engaged in an analysis of its meaning. Given plaintiffs’
confused briefing, which switches between objections to the CEPA exemption as written
and as applied, this error is understandable. But plaintiffs’ complaint explicitly
challenges the County’s “interpretation and application” of the CEPA exemption, and we
will hold them to this construction of their claims. See Fed. R. Civ. P. 8.


                                            -10-
(“Generally, we wish to avoid, when possible, deciding constitutional questions and

thereby overturn legislative enactments and etch in stone rules of law 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 parties 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 developed to allow us to

decide it.

       The term “billboard” is commonly understood 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]osters, flyers and announcements 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 signs from the requirements of Development

Manual § 4-14, see id. § 4-14-03-01, the County’s application of the regulations

contained in Development Manual § 4-15 to the plaintiffs’ proposed placards appears to




                                            -11-
be a proper.5

       Requiring all billboards to be authorized by a conditional use permit prior to their

construction does not violate equal protection. See Ladue, 512 U.S. at 51 & n.9.

Plaintiffs, however, dispute that the County has 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 argument, too, is contradicted by

the record. In an affidavit submitted with defendants’ 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 fairgrounds placard as

a CEPA exemption sign demonstrates that the CEPA exemption is not limited to small

signs. Although the Development Manual does 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 attempt to challenge the County’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 applied unconstitutionally
to others in situations not before the Court.” 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.

                                            -12-
note for context that the record is ambiguous with respect to whether the County ever

actually classified the fairgrounds placard as a CEPA exemption sign. For example, in

response to the question, “When did the county first make any determination whatsoever

that the CEPA exemption applied to any specific 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 [fairgrounds 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 deposition that plaintiffs claim

demonstrates Coney admitted the fairgrounds placard is a CEPA exemption sign is,

unfortunately, laden with transcription errors to the point of being unintelligible.6

       Although a reasonable jury could conclude 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 pursuant to the CEPA exemption. 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.”

                                            -13-
a conditional use permit to be built—must also pass constitutional muster. Although this

circuit appears to have never squarely addressed the issue, the Ninth Circuit has held that

“grandfathering in” billboards—banning construction of new billboards that are not in

compliance with current regulations but allowing previously built, non-conforming

billboards to remain—can survive an equal protection challenge. Maldonado v. Morales,

556 F.3d 1037, 1048 (9th Cir. 2009). We agree.

       The Development Manual provision dealing with grandfathering is content-neutral

and applies equally to the government 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 regulation will survive such scrutiny 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.” Id. (quotation omitted).

       Restricting the construction of billboards but allowing legal non-conforming

billboards to remain furthers the County’s stated interest 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 existing billboards if the

County demanded the existing, noncompliant billboards be removed. See Maldonado,
                                            -14-
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 billboards without additional distinctions.

       We do not address whether the constitutional 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 construe the term “civic events” under the

CEPA exemption without becoming similarly situated to private parties for the purpose

of an equal protection analysis. The record before 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 rights to enforce such a

zoning scheme. Therefore, the district court’s grant of summary judgment with respect to

plaintiffs’ § 1983 equal protection 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 conclude that the district court’s

exercise of supplemental jurisdiction over this claim was an abuse of discretion.7


       7
         Although the precise nature of plaintiffs’ claim seeking declaratory relief is
unclear, plaintiffs solely relied on supplemental jurisdiction both in their complaint and
on appeal.

                                            -15-
       When a district court has original jurisdiction over claims arising under federal

law, it has “supplemental jurisdiction over all other claims that are so related to claims in

the action within such original jurisdiction that they form part of the same case or

controversy under Article III of the United States 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 sense 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 from 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 predominates over the claim or claims over
       which the district court has original jurisdiction,

       (3) the district court has dismissed all claims over which it has original
       jurisdiction, or

       (4) in exceptional circumstances, there are other compelling reasons for
       declining jurisdiction.

§ 1367(c). When a district court properly concludes 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).
                                              -16-
       Plaintiffs’ declaratory claim is precisely the type of claim over which

supplemental jurisdiction should not be exercised: Plaintiffs ask the federal courts to

interpret a local zoning ordinance in the first instance. Zoning law is a uniquely local

concern with which “[f]ederal courts should be reluctant to interfere.” 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 mill 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 claims have been dismissed, they seek a declaration as

to the meaning of a county zoning ordinance that does not violate their federal

constitutional rights. They do so despite the availability 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 record review of the county procedure provides an adequate

remedy. When only declaratory relief is requested, 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 dismissed plaintiffs’ declaratory judgment claim for

want of supplemental jurisdiction. It was an abuse of discretion for the district court to

have done otherwise.
                                            -17-
                                          IV

      For the foregoing reasons, we AFFIRM the district court’s grant of summary

judgment with respect to plaintiffs’ § 1983 claims. We VACATE the district court’s

grant of summary judgment with respect to plaintiffs’ declaratory judgment claim, and

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



                                        Entered for the Court



                                        Carlos F. Lucero
                                        Circuit Judge




                                          -18-
