StreetMediaGroup v. Dept of Transportation

24CA1644 StreetMediaGroup v Dept of Transportation 11-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1644
City and County of Denver District Court No. 23CV30979
Honorable Sarah B. Wallace, Judge

StreetMediaGroup, LLC, and Turnpike Media, LLC,

Plaintiffs-Appellees,

v.

Department of Transportation, State of Colorado, and Shoshana Lew, in her
official capacity as Executive Director of the Department of Transportation,
State of Colorado,

Defendants-Appellants.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE SULLIVAN
Welling and Bernard*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 20, 2025

Richards Carrington, LLC, Christopher P. Carrington, Todd E. Mair, Denver,
Colorado; Lewis Wagner, LLP, Charles R. Whybrew, Indianapolis, Indiana, for
Plaintiffs-Appellees

Philip J. Weiser, Attorney General, Barbara J. Stauch, Senior Assistant
Attorney General, Denver, Colorado, for Defendants-Appellants

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 In this judicial review action, defendant, the Colorado

Department of Transportation (CDOT), appeals the district court’s

judgment overturning its final agency order that denied plaintiff,

StreetMediaGroup, LLC (StreetMedia), two permits for outdoor

advertising devices. We reverse and remand with directions.

I. Background

¶2 Before addressing the parties’ contentions, we briefly

summarize the governing regulatory framework and the proceedings

that led to this appeal.

A. Regulatory Framework

¶3 The General Assembly enacted the Outdoor Advertising Act

(the Act), §§ 43-1-401 to -420, C.R.S. 2025, to control the existing

and future use of “advertising devices” adjacent to the state

highway system in a manner that promotes the health, safety, and

welfare of the traveling public and the people of Colorado.

§ 43-1-402(1)(a), C.R.S. 2025; see Orsinger Outdoor Advert., Inc. v.

Dep’t of Highways, 752 P.2d 55, 60-61 (Colo. 1988) (discussing

Colorado’s substantial state interests under the Act). CDOT

administers the Act and has promulgated rules consistent with its

provisions. See § 43-1-415(1), C.R.S. 2025.

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¶4 Under the “Interchange Rule,” an advertising device outside of

incorporated villages and cities may not be located adjacent to or

within five hundred feet of an interchange, intersection at grade, or

safety rest area. Dep’t of Transp. Rule 7.00(D)(2)(b), 2 Code Colo.

Regs. 601-3. Under the “Spacing Rule,” two signs meeting the

definition of a changeable electronic variable message sign can’t be

located within one thousand feet of one another on the same side of

a highway and facing the same direction of travel. Id. at Rule

12.00(C)(2)(a); see also § 43-1-404(1)(f)(I), C.R.S. 2025 (codifying the

Spacing Rule in the Act); Dep’t of Transp. Rule 12.00(B)(1), 2 Code

Colo. Regs. 601-3 (defining “Changeable Electronic Variable

Message Sign”).

B. Administrative Proceedings

¶5 In January 2018, StreetMedia applied to CDOT for two

roadside permits for signs located at 7300 Broadway in

unincorporated Adams County — one on the east side and one on

the west side of Interstate Highway 25. The 7300 Broadway site

sits within five hundred feet of the interchange that connects I-25

and U.S. 36.

2
¶6 CDOT denied both permits in September 2018, citing the

Interchange Rule. As a second ground for denial, CDOT noted that

if both the west and east permits were approved, the signs would

violate the Spacing Rule.1 StreetMedia requested a hearing before

an Administrative Law Judge (ALJ) to contest CDOT’s denials under

the State Administrative Procedure Act (the APA), §§ 24-4-101

to -109, C.R.S. 2025.2 See § 24-4-105, C.R.S. 2025.

¶7 Before the ALJ, StreetMedia argued that CDOT’s denials were

arbitrary and capricious because the agency had approved other

companies’ signs that also violated the Interchange Rule. During a

two-day evidentiary hearing, CDOT’s outdoor advertising program

supervisor testified that CDOT had issued permits by mistake for at

least three of the noncompliant signs identified by StreetMedia.

StreetMedia offered into evidence a 2004 administrative decision

that confirmed that CDOT had issued the three permits in error.

1 In 2021, the General Assembly amended the Outdoor Advertising

Act, causing CDOT to also amend its rules. See Ch. 388, secs.
1-11, 2021 Colo. Sess. Laws 2588-94. The amendments didn’t
affect either the Interchange Rule or the Spacing Rule.
2 StreetMedia also requested hearings to contest two other permit

denials by CDOT. The ALJ consolidated the four permit denials
into a single proceeding. Only the 7300 Broadway permits are at
issue in this appeal.

3
The CDOT supervisor also testified that CDOT renews permits

annually for approximately 2,200 signs through an automatic

process.

¶8 The ALJ found that CDOT issues or denies initial permits

“based on the specific facts related to the site” where the proposed

sign will be located. By contrast, CDOT’s annual renewal of the

permits, the ALJ found, is “relatively automatic.”

¶9 The ALJ also found that CDOT had mistakenly issued an

initial permit for at least one sign that didn’t comply with the

Interchange Rule. The ALJ noted, however, that evidence in the

record suggested that CDOT had issued initial permits for six signs

that violated the Interchange Rule. With respect to these six

permits, the ALJ found as follows:

The ALJ further concludes that the issuance of
[the six] permits in each case . . . was based
upon the[] specific facts and circumstances
related to the site in question. The ALJ is
unable to conclude from the evidence in the
record that [CDOT] volitionally violated the
statute or rules governing outdoor advertising
in each of the specific instances.

¶ 10 The ALJ ultimately resolved the dispute based solely on the

Spacing Rule, concluding that CDOT had erroneously denied

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StreetMedia’s permits because the two proposed signs weren’t on

the same side of the highway. As a result, the ALJ determined

StreetMedia was entitled to a permit for one of its proposed signs at

the 7300 Broadway site.

¶ 11 On exceptions, CDOT’s executive director modified the ALJ’s

initial decision in part by denying both of StreetMedia’s requested

permits. See § 24-4-105(14)(a)(II). The executive director explained

that, although the ALJ determined the two proposed signs didn’t

violate the Spacing Rule, they still violated the Interchange Rule.

¶ 12 The executive director also rejected StreetMedia’s argument

that substantial evidence contradicted the ALJ’s finding that CDOT

hadn’t violated the Interchange Rule “volitionally” when it granted

the six noncompliant permits.

C. District Court Proceedings

¶ 13 StreetMedia sought judicial review of CDOT’s final agency

order under section 24-4-106(4), C.R.S. 2025, asserting CDOT’s

permit denials were arbitrary and capricious. As relevant here,

StreetMedia also asserted claims for declaratory and injunctive

relief based on its right to equal protection under the Fourteenth

5
Amendment and its right to free speech under the First

Amendment.

¶ 14 The district court agreed with StreetMedia’s “class of one”

argument under the Equal Protection Clause, leading it to overturn

CDOT’s final agency order. According to the district court, CDOT

violated StreetMedia’s right to equal protection because CDOT

treated similarly situated competitors more favorably by approving

permits for their signs that violated the Interchange Rule, yet CDOT

declined to issue StreetMedia similar permits for its noncompliant

signs.

¶ 15 The district court, however, rejected StreetMedia’s other

arguments, including its free speech argument under the First

Amendment.

¶ 16 CDOT now appeals. It contends that the district court erred

by (1) substituting its own factual findings for the ALJ’s to arrive at

an equal protection violation and (2) issuing an advisory opinion on

the constitutionality of a prior version of the Act and CDOT’s

corresponding rules as applied to StreetMedia. For its part,

StreetMedia defends the district court’s analysis under the Equal

Protection Clause. StreetMedia also argues, in the alternative, that

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we may uphold the district court’s judgment based on CDOT’s

violation of its right to free speech under the First Amendment.

¶ 17 Because we agree with CDOT’s first contention, we need not

address the second. We also address and reject StreetMedia’s

alternative ground for affirmance under the First Amendment.

II. Equal Protection

¶ 18 We first address CDOT’s contention that the district court

erred by substituting its own factual findings for the ALJ’s when

assessing StreetMedia’s equal protection claim.

A. Standard of Review and Applicable Law

¶ 19 On appeal from a district court’s review of a final agency

action, we apply the same standard of review as the district court

under the APA. See § 24-4-106(7); Gessler v. Grossman, 2015 COA

62, ¶ 9, aff’d sub nom., Gessler v. Smith, 2018 CO 48. We review

the ALJ’s legal determinations de novo, but we may not overturn

the ALJ’s factual findings unless they are clearly erroneous on the

whole record. § 24-4-106(7)(b)(VII); Jansma v. Colo. Dep’t of

Revenue, 2023 COA 59, ¶¶ 17-18. When conflicting testimony is

presented in an administrative hearing, the witnesses’ credibility

and the weight afforded to their testimony are decisions within the

7
province of the presiding ALJ. Colo. Ethics Watch v. City & Cnty. of

Broomfield, 203 P.3d 623, 626 (Colo. App. 2009).

¶ 20 We accord administrative proceedings a presumption of

validity and regularity. Wildwood Child & Adult Care Program, Inc.

v. Colo. Dep’t of Pub. Health & Env’t, 985 P.2d 654, 655 (Colo. App.

1999). The party challenging the agency action bears the burden of

overcoming the presumption that the agency’s acts were proper. Id.

¶ 21 In a “class of one” equal protection claim, a plaintiff must

allege that they have been “intentionally treated differently from

others similarly situated and that there is no rational basis for the

difference in treatment.” Village of Willowbrook v. Olech, 528 U.S.

562, 564 (2000). As our supreme court has explained in a case

involving Colorado’s enforcement of the Act, “[a] claim of

discriminatory enforcement must be supported by evidence which

will permit a factfinder to reasonably conclude that the enforcement

not only proceeded from an unjust and illegal discrimination

between persons in similar circumstances but also that the

discriminatory enforcement was intentionally or purposefully

carried out.” Orsinger, 752 P.2d at 62. Whether the government

8
acted intentionally or purposefully is a question of fact reserved for

the fact finder. See id.

B. Analysis

¶ 22 We conclude the district court improperly rejected the ALJ’s

factual findings regarding CDOT’s intent when it determined that

CDOT violated StreetMedia’s right to equal protection.

¶ 23 A successful discriminatory enforcement claim under the

Equal Protection Clause requires the claimant to show intentional

or purposeful discrimination. Id. Thus, StreetMedia had to show,

at minimum, that CDOT intentionally or purposefully (1) approved

permits for other companies’ signs that violated the Interchange

Rule and (2) chose to treat StreetMedia differently by refusing to

approve permits for its signs that also violated the rule.

¶ 24 But the ALJ found no evidence that CDOT intentionally or

purposefully violated the Interchange Rule when approving permits

for other companies’ noncompliant signs. Specifically, the ALJ said

he couldn’t conclude that CDOT “volitionally” violated any law or

regulation governing outdoor advertising devices. See Lindquist v.

City of Pasadena, 656 F. Supp. 2d 662, 703 (S.D. Tex. 2009)

(granting the city summary judgment on the plaintiffs’ class of one

9
equal protection claim, in part, because the city didn’t “intentionally

ignore[]” city ordinances when issuing licenses to the plaintiffs’

competitors), aff’d, 669 F.3d 225 (5th Cir. 2012); Bernard v. Village

of Hinsdale, 411 F. Supp. 2d 965, 969 (N.D. Ill. 2006) (rejecting the

plaintiffs’ class of one equal protection claim because the evidence

didn’t show that the government “intentionally ignored the zoning

code” when issuing a permit to a similarly situated property owner).

¶ 25 On the contrary, the ALJ found, with record support, that

CDOT granted at least some of the earlier permits by mistake. Mere

mistakes or errors of judgment don’t rise to the level of intentional

or purposeful discrimination that will support a claim under the

Equal Protection Clause. See Snowden v. Hughes, 321 U.S. 1, 8

(1944) (“[W]here the official action purports to be in conformity to

the statutory classification, an erroneous or mistaken performance

of the statutory duty, although a violation of the statute, is not

without more a denial of the equal protection of the laws.”); Seven

Star, Inc. v. United States, 873 F.2d 225, 227 (9th Cir. 1989)

(“[E]qual protection principles should not provide any basis for

holding that an erroneous application of the law in an earlier case

must be repeated in a later one.”); E & T Realty v. Strickland, 830

10
F.2d 1107, 1114 (11th Cir. 1987) (“The requirement of intentional

discrimination prevents plaintiffs from bootstrapping all

misapplications of state law into equal protection claims.”).

¶ 26 We recognize that the ALJ addressed whether CDOT acted

volitionally, not whether it acted intentionally or purposefully. But

the terms overlap. See Starr v. Indus. Claim Appeals Off., 224 P.3d

1056, 1066 (Colo. App. 2009). Acting with “volition” means having

the power or ability to choose and decide or to exercise some control

over the circumstances, as opposed to acting in an involuntary or

accidental manner. Id. Intentional actions, by contrast, are those

made “purposefully and with design.” Id. While one may act

volitionally without necessarily acting with intent or purpose, see

id., in this context we fail to see how the reverse could be true.

Stated differently, the ALJ’s factual finding that CDOT acted

without volition — that is, by accident — when previously approving

permits for noncompliant signs precludes a finding that it acted

purposefully or intentionally.

¶ 27 We agree with StreetMedia that it presented some evidence

from which a fact finder could have inferred intentional or

purposeful discrimination by CDOT. But we must defer to the

11
ALJ’s resolution of the witnesses’ credibility, the weight accorded to

the evidence, and the conflicting inferences reasonably drawn from

the evidence. See Colo. Ethics Watch, 203 P.3d at 626; Mondragon

v. Poudre Sch. Dist. R-1, 696 P.2d 831, 835 (Colo. App. 1984). And

whether CDOT acted intentionally or purposefully is a question of

fact that fell squarely within the ALJ’s purview as fact finder. See

Orsinger, 752 P.2d at 62; see also Water Rights of Masters Inv. Co. v.

Irrigationists Ass’n, 702 P.2d 268, 272 (Colo. 1985) (“As in most

judicial inquiries into the state of mind of a particular person, the

question of the intent . . . is essentially a question of fact for

determination by the trier of fact on the basis of the evidence

produced at trial” and “will rarely be overturned” by an appellate

court).

¶ 28 As reviewing courts, neither this court nor the district court is

free to substitute our factual findings for the ALJ’s. See

M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1382 (Colo. 1994).

This is no less true when the claimant raises a constitutional

challenge. See § 24-4-106(7)(d) (“In all cases under review, the

court shall determine all questions of law and interpret the

12
statutory and constitutional provisions involved and shall apply the

interpretation to the facts duly found or established.”).

¶ 29 StreetMedia nonetheless points to CDOT’s annual permit

renewals for other companies’ noncompliant signs as evidence of

the agency’s discriminatory enforcement and argues that CDOT is

obligated by law to deny such renewals. We aren’t persuaded for

two reasons. First, StreetMedia, as an initial permit applicant, isn’t

similarly situated to other companies that merely renew an existing

permit.3 See Orsinger, 752 P.2d at 62 (discriminatory enforcement

claim requires persons occupy “similar circumstances”); see also

Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir.

2011) (a plaintiff alleging a “class of one” equal protection claim

must first establish others are similarly situated in every material

respect (citation omitted)). The ALJ found that while CDOT

3 StreetMedia argues that CDOT gave preferential treatment to three

of its competitors that are “larger players” in Colorado’s outdoor
advertising industry: Lamar Advertising Company; Outfront Media,
Inc.; and Mile High Outdoor Advertising. But StreetMedia didn’t
establish that these competitors owned, at the time of CDOT’s
initial permitting, any of the six signs that the ALJ identified as
violating the Interchange Rule. At most, StreetMedia showed that
certain of its competitors later became successors to some of the
initial permits for those signs.

13
evaluates the specific information contained within an initial permit

application against the Act and the agency’s corresponding rules,

the annual permit renewal process differs because a renewal is

“relatively automatic.”

¶ 30 The record supports this finding. CDOT’s outdoor advertising

program supervisor testified that CDOT regulates approximately

2,200 signs and that it sends out annual renewal invoices for each

through an “automatic process.” Given the lack of scrutiny that

permit renewals receive, we can’t say, on this record, that

StreetMedia is similarly situated to other companies that renew an

existing permit.

¶ 31 Second, even if we assumed both that StreetMedia was

similarly situated to companies that renew an existing permit and

that the law required CDOT to deny a renewal permit for a

noncompliant sign (an issue we don’t reach), the ALJ’s factual

findings still don’t reveal intentional or purposeful discrimination by

CDOT. This deficiency alone defeats StreetMedia’s equal protection

claim. See Orsinger, 752 P.2d at 62.

¶ 32 StreetMedia also argues that the ALJ clearly erred by finding

that CDOT’s approval of other permits for noncompliant signs was

14
based upon “specific facts and circumstances related to the site in

question.” According to StreetMedia, no substantial evidence

supports this finding. We need not decide whether substantial

evidence supports this finding because, even if the evidence fell

short, the ALJ’s finding that CDOT didn’t volitionally violate the

Interchange Rule when approving those permits is dispositive of

StreetMedia’s equal protection claim. See id.

¶ 33 Accordingly, the district court erred by rejecting the ALJ’s

factual finding regarding CDOT’s intent when evaluating

StreetMedia’s equal protection claim.

III. First Amendment

¶ 34 StreetMedia argues that we may affirm the district court’s

judgment on an alternative ground — namely, that CDOT’s selective

enforcement of the Interchange Rule violated its right to free speech

under the First Amendment. We aren’t persuaded.

¶ 35 At the outset, we reject CDOT’s argument that StreetMedia’s

failure to file a notice of cross-appeal precludes us from reaching

this issue. True, an appellee must generally file a notice of cross-

appeal to raise a contention that, if successful, would increase its

rights under the judgment or order being reviewed. Koinis v. Colo.

15
Dep’t of Pub. Safety, 97 P.3d 193, 197 (Colo. App. 2003). But here,

StreetMedia doesn’t seek to enlarge its rights under the district

court’s judgment. Rather, it seeks merely to uphold the existing

judgment on alternative grounds, which is permissible. See

Brightstar LLC v. Jordan, 2024 COA 39, ¶ 91 n.6.

¶ 36 Nonetheless, StreetMedia’s free speech argument fails for the

same reason as its equal protection argument. As we understand

StreetMedia’s contention, CDOT discriminated against it by

selectively enforcing the Interchange Rule against StreetMedia but

not “larger players” in Colorado’s outdoor advertising industry, thus

violating its right to free speech. But, as with an equal protection

claim, a claimant alleging discrimination under the First

Amendment “must show that a government official ‘acted with

discriminatory purpose.’” Pahls v. Thomas, 718 F.3d 1210, 1236

(10th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676

(2009)); see also McGuire v. Reilly, 386 F.3d 45, 63 (1st Cir. 2004)

(“Unless government actors were to intentionally enforce the statute

unequally, then any evidence of inequality that plaintiffs were to

show would merely indicate a ‘disproportionate[] burden[]’ that

would not signify viewpoint discrimination.” (citation omitted)).

16
¶ 37 As discussed, the ALJ, after hearing the evidence, found that

CDOT didn’t act volitionally, much less intentionally or

purposefully. CDOT’s executive director adopted the ALJ’s finding

in the final agency order. The district court declined to disturb the

agency’s order on First Amendment grounds. Like the district

court, we may not substitute our factual findings for the ALJ’s. See

M.D.C./Wood, Inc., 866 P.2d at 1382.

¶ 38 StreetMedia’s reliance on City of Madison, Joint School District

No. 8 v. Wisconsin Employment Relations Commission, 429 U.S. 167,

175-76 (1976), is misplaced. In City of Madison, the Supreme Court

struck down Wisconsin’s attempt to prohibit nonunion teachers

from expressing their views on collective-bargaining negotiations at

public school board meetings. Id. No dispute existed that

Wisconsin intentionally discriminated based on the speaker’s

identity as a nonunion teacher. In this case, though, the ALJ didn’t

find that CDOT intentionally or purposefully discriminated against

StreetMedia based on its identity as a “smaller” advertising

company, or for any other reason.

17
¶ 39 Accordingly, StreetMedia’s alternative argument under the

First Amendment provides no basis for upholding the district

court’s judgment.

IV. Disposition

¶ 40 We reverse the portion of the district court’s judgment

overturning CDOT’s final agency order and remand the case to the

district court to reinstate the final agency order.

JUDGE WELLING and JUDGE BERNARD concur.

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