PARRACK v. ESTES PARK, 628 P.2d 1014 (Colo. 1981)

Galen Parrack and Joseph P. Jenkins v. Town of Estes Park, Colorado, a Municipal Corporation, and the Zoning Board of Adjustment of the Town of Estes Park, Colorado

No. 80SA446Supreme Court of Colorado.
Decided June 1, 1981.

Appeal from the District Court of the County of Larimer, Honorable William F. Dressel, Judge.

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Joseph P. Jenkins, P.C., for plaintiffs-appellants.

Hammond, Clark and White, Gregory A. White, for defendants-appellees.

En Banc.

JUSTICE ERICKSON delivered the opinion of the Court.

[1] The constitutionality of the Town of Estes Park Sign Code (hereinafter “sign code”) is the primary issue on appeal. Estes Park Municipal Code 17.66, et seq. We conclude that the sign code is not substantially overbroad, and accordingly, appellants do not have standing to attack the constitutionality of the provisions of the sign code which do not apply to their own conduct.[1]

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[2] Appellant Parrack owns a building situated within the corporate limits of the town of Estes Park. Appellant Jenkins rents office space in Parrack’s building. The issues in this case center on the erection of a projecting sign, which stated: “Joseph P. Jenkins, P.C. Law Offices.” Jenkins’ sign is 98-1/4 inches above the sidewalk which adjoins Parrack’s building. The Estes Park sign code provides that no sign which projects from a structure shall be lower than nine feet (108 inches) from the existing grade of the sidewalk.[2] [3] The Estes Park building inspector informed Jenkins that his sign was in violation of the sign code. Jenkins then filed for a variance with the zoning board. His request was denied. Thereafter, Jenkins was cited for failure to obtain a sign permit.[3] [4] Appellants filed an appeal in the district court from the zoning board’s denial of the variance. They also filed a complaint for declaratory judgment asserting that the sign code is unconstitutional. The district court held that the zoning board acted within its jurisdiction and did not abuse its discretion in the denial of the variance.[4] In a subsequent proceeding, the district court upheld the constitutionality of the sign code.[5] [5] A basic principle of constitutional adjudication is that a person to whom a statute may be constitutionally applied will not be heard to challenge the statute on the grounds that the statute may be unconstitutionally applied to others in circumstances which are not before the court. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830
(1973); Marco Lounge, Inc. v. City of Federal Heights, 625 P.2d 982
(Colo. 1981); Williams v. City and County of Denver, 622 P.2d 542 (Colo. 1981); Veterans of Foreign Wars v. City of Steamboat Springs, 195 Colo. 44, 575 P.2d 835 (1978); Bolles v. People, 189 Colo. 394, 541 P.2d 80 (1975). [6] In First Amendment cases, however, traditional standing rules are broadened to ensure that a statute does not create an impermissible chill on constitutionally protected speech or assembly. Accordingly, where the court determines, as a threshold matter, that a statute is substantially overbroad, a litigant is permitted to assert the facial unconstitutionality of a statute which creates a chilling effect on the freedom of expression of persons not before the court. Broadrick v. Oklahoma, supra; Marco Lounge, Inc. v. City of Federal Heights, supra.

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[7] Not every statute which deters protected speech is substantially overbroad. The test of substantial overbreadth is whether the “plainly legitimate sweep” of the statute is of greater significance than any marginal chilling effect it may have on protected speech. Broadrick v. Oklahoma, supra; Marco Lounge v. City of Federal Heights, supra; Williams v. City and County of Denver, supra; Veterans of Foreign Wars v. Steamboat Springs, supra.[6] [8] The “plainly legitimate sweep” of the sign code is clear. The noncommunicative impact of speech-related conduct is subject to reasonable time, place, and manner restrictions. Erznoznik v. Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Williams v. City and County of Denver, supra. The critical inquiry is whether the incidental restriction on First Amendment freedoms is greater than essential to the furtherance of the governmental interest in question. United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Veterans of Foreign Wars v. City of Steamboat Springs, supra. [9] Appellants’ overbreadth attack centers upon the code’s definition of a “sign.” Appellants assert that the definition is virtually limitless. By way of example, appellants argue that a bumper sticker is a “sign” by the terms of the code. 17.66.090(36) provides: [10] “a. `Sign’ means any writing, pictorial representation, decoration (including any material used to differentiate sign copy from its background), form, emblem or trademark, flag or banner, or any other figure of similar character which: [11] i. Is a structure or any part thereof (including the roof or wall of a building); or [12] ii. Is written, printed, projected, painted, constructed or otherwise placed or displayed upon or designed into a building, board, plate, canopy, awning, vehicle or upon any material object or device whatsoever; and [13] iii. By reason of its form, color, wording, symbol, design, illumination, motion or otherwise attracts or is designed to attract attention to the subject thereof or is used as a means of identification, advertisement or announcement.” [14] “b. If, for any reason, it cannot be readily determined whether or not an object is a sign, the building inspector shall make such determination.” [15] We conclude that the appellants’ prediction does not provide a basis for their constitutional attack. We decline to predict that the wording and enforcement of the sign code will deter persons from exercising their arguably protected First Amendment right to display bumper stickers. Moreover, any marginal chilling effect on protected expression is insubstantial when compared with the “plainly legitimate sweep” of the sign code. Williams v. City and County of Denver, supra. [16] In our view, the sign code is not void for vagueness. See, Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322
(1926); People v. Weeks, 197 Colo. 175, 591 P.2d 91 (1979); Veterans of Foreign Wars v. City of Steamboat Springs, supra. [17] Appellants’ contention that the sign code is being discriminatorily enforced against them is without merit. No showing was made of clear and intentional discrimination. Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Earl Sons Tire Center v. City of Boulder, 192 Colo. 360, 559 P.2d 236 (1977). [18] Accordingly, the judgment of the district court is affirmed.

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