StreetMediaGroup v. DOT

• Court: Colorado Court of Appeals
• Decided: April 16, 2026
• Docket: 25CA0901
• Status: Unpublished

Opinion

25CA0901 StreetMediaGroup v DOT 04-16-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0901 City and County of Denver District Court No. 23CV33712 Honorable Jon J. Olafson, Judge

StreetMediaGroup, LLC,

Plaintiff-Appellant,

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-Appellees.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division II Opinion by JUDGE KUHN Fox and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 16, 2026

Richards Carrington, LLC, Christopher P. Carrington, Todd E. Mair, Denver, Colorado, for Plaintiff-Appellant

Philip J. Weiser, Attorney General, Barbara J. Stauch, Senior Assistant Attorney General, Denver, Colorado, for Defendants-Appellees ¶1 Plaintiff, StreetMediaGroup, LLC (StreetMedia), appeals the

district court’s dismissal of its judicial review action brought

against defendants, the Colorado Department of Transportation and

Shoshana Lew, in her official capacity as its executive director

(collectively, CDOT). We reverse and remand with directions.

I. Background

¶2 This case arises from a highway advertising regulatory

framework. To briefly summarize, the Outdoor Advertising Act

regulates “advertising devices” next to state highways “in order to

protect and promote the health, safety, and welfare of the traveling

public.” § 43-1-402(1)(a), C.R.S. 2025; see §§ 43-1-401 to -420,

C.R.S. 2025; Dep’t of Transp., Statement of Basis and Purpose and

Statutory Authority, 2 Code Colo. Regs. 601-3. The act empowers

CDOT to regulate outdoor advertising, including by issuing and

renewing permits for advertising devices next to highways. See

§§ 43-1-415, -407, C.R.S. 2025. The act further prohibits new

advertising devices that are “visible from” highways “designated as

scenic byways by [CDOT’s] [T]ransportation [C]ommission.”

§ 43-1-419(1)(a), C.R.S. 2025.

1 ¶3 According to the complaint, CDOT approved a permit

application for StreetMedia to erect a new electronic advertising

sign near a highway. It allegedly cost StreetMedia $90,679 to erect

the sign, and it displayed noncommercial and commercial content

for nearly a year. StreetMedia claims that CDOT then provided

notice that it had erred by approving the permit. CDOT’s notice

said that it had previously overlooked that the sign was adjacent to

the “Cache la Poudre-North Park Scenic and Historic Byway” (the

scenic byway). CDOT thus informed StreetMedia that it intended to

“(1) revoke the [p]ermit for the [sign]; (2) deny any subsequent

renewals of the [permit]; and (3) demand that StreetMedia remove

the sign.”

¶4 StreetMedia was unable to resolve the permit revocation with

CDOT staff, and consequently, StreetMedia filed an administrative

appeal with the Office of Administrative Courts. See

§ 43-1-412(2)(c), (3), C.R.S. 2025; Dep’t of Transp. Rule 5.00, 2

Code Colo. Regs. 601-3. Ultimately, an Administrative Law Judge

(ALJ) found that the sign was located along the scenic byway and

was not lawfully erected. The ALJ subsequently granted summary

judgment to CDOT, concluding that the sign violated scenic byway

2 prohibitions on advertising under the Outdoor Advertising Act.

After StreetMedia filed exceptions, CDOT issued a final agency order

affirming the ALJ’s decision and revoking the permit.

¶5 StreetMedia then filed a complaint with the district court. The

complaint sought the following relief: (1) judicial review of CDOT’s

revocation of the permit under section 24-4-106, C.R.S. 2025; (2) a

declaration under C.R.C.P. 57 that the designation of the scenic

byway was unconstitutional; (3) a finding that a class-of-one

violation of the Equal Protection Clause occurred; and (4) an

injunction under C.R.C.P. 65 and section 24-4-106(7)(b).

¶6 CDOT moved to dismiss the claims for both lack of subject

matter jurisdiction under C.R.C.P. 12(b)(1) and failure to state a

claim under C.R.C.P. 12(b)(5). CDOT’s Rule 12(b)(1) jurisdictional

challenges contested the district court’s authority in regard to each

of StreetMedia’s four claims.

¶7 However, rather than examining the claims individually, the

district court addressed the motion to dismiss by sua sponte

generally scrutinizing StreetMedia’s standing to bring suit. See

People in Interest of J.C.S., 169 P.3d 240, 244 (Colo. App. 2007)

(holding that the issue of standing can be raised sua sponte). The

3 district court summarily found that the sign was illegal, and

therefore, the court ruled that StreetMedia lacked standing because

it had no legally protected interest in an illegal sign. As a result,

the district court granted the motion, dismissed the complaint in its

entirety, and declined to rule on CDOT’s Rule 12(b)(1) and 12(b)(5)

assertions.

II. Analysis

¶8 On appeal, StreetMedia claims that the district court erred by

dismissing the complaint for lack of standing because StreetMedia

sufficiently alleged that it had suffered injury in fact to legally

protected property and constitutional interests. We agree.

A. Standard of Review

¶9 We review standing de novo. Weld Cnty. Colo. Bd. of Cnty.

Comm’rs v. Ryan, 2023 CO 54, ¶ 8.

¶ 10 “Standing is a jurisdictional prerequisite that may be raised at

any stage of the proceeding.” C.W.B. v. A.S., 2018 CO 8, ¶ 16. The

plaintiff bears the burden of proving jurisdiction. City of Boulder v.

Pub. Serv. Co. of Colo., 2018 CO 59, ¶ 14. As a jurisdictional issue,

“the question of standing must be determined prior to a decision on

4 the merits.” Hickenlooper v. Freedom from Religion Found., Inc.,

2014 CO 77, ¶ 7.

¶ 11 We determine standing within “the context of [the plaintiff’s]

claims for relief.” Colo. Manufactured Hous. Ass’n v. Pueblo County,

857 P.2d 507, 511 (Colo. App. 1993). In doing so, we accept all the

allegations in the complaint as true.1 Ryan, ¶ 8. “If a court

determines that standing does not exist, then it must dismiss” the

party’s claims. Hickenlooper, ¶ 7. Yet “the test in Colorado has

1 This rule is subject to an important caveat. When a party makes a factual attack on the court’s subject matter jurisdiction under C.R.C.P. 12(b)(1), the court need not treat the nonmoving party’s factual allegations as true but rather may weigh the evidence and satisfy itself as to its power to hear the case. Medina v. State, 35 P.3d 443, 452 (Colo. 2001). Here, however, CDOT’s motion to dismiss didn’t assert a factual attack on standing; that issue was raised sua sponte by the district court. In addition, the district court didn’t admit any evidence at the hearing on CDOT’s motion — supportive of standing or otherwise. Indeed, the court’s core finding (that the sign could not be “lawfully erected”) relied on only the ALJ’s summary judgment order, not on the exhibits attached to the motion to dismiss. Cf. Colo. Gen. Assembly v. Lamm, 700 P.2d 508, 516 (Colo. 1985) (“In determining whether a plaintiff has asserted a sufficient injury to satisfy the test of standing, the court must accept the averments of the complaint as true and may consider other evidence supportive of standing.”); Perttu v. Richards, 605 U.S. 460, 472 (2025) (cautioning that trial courts may not resolve factual disputes when assessing subject matter jurisdiction if “the factual disputes are intertwined with the merits”).

5 traditionally been relatively easy to satisfy.” Ainscough v. Owens,

90 P.3d 851, 856 (Colo. 2004).

B. Applicable Law

¶ 12 “[S]tanding involves a consideration of whether a plaintiff has

asserted a legal basis on which a claim for relief can be predicated.”

Bd. of Cnty. Comm’rs v. Bowen/Edwards Assocs., Inc., 830 P.2d

1045, 1052 (Colo. 1992). A plaintiff establishes standing by

showing they “suffered (1) an injury in fact (2) to a legally protected

interest.” Ryan, ¶ 9 (citing Wimberly v. Ettenberg, 570 P.2d 535,

539 (Colo. 1977)).

¶ 13 The injury-in-fact prong maintains the separation of powers

and requires a “‘concrete adverseness which sharpens the

presentation of issues’ that parties argue to the courts.” City of

Greenwood Village v. Petitioners for Proposed City of Centennial, 3

P.3d 427, 437 (Colo. 2000) (quoting Baker v. Carr, 369 U.S. 186,

204 (1962)). An injury can be tangible, such as physical damage or

economic harm; an injury can also be intangible, such as

deprivation of legal rights or civil liberties. League of Women Voters

of Greeley, Weld Cnty., Inc. v. Bd. of Cnty. Comm’rs, 2025 CO 8,

¶ 25; Ainscough, 90 P.3d at 856. But an injury in fact cannot be

6 overly indirect or incidental, nor can it be a remote possibility.

Hickenlooper, ¶ 9.

¶ 14 The second prong of the standing inquiry requires that the

plaintiff have a legal interest protecting the alleged injury.

Ainscough, 90 P.3d at 856. Legally protected interests “encompass

all rights arising from constitutions, statutes, and case law.” Id. A

legally protected interest can be a tangible or economic interest,

such as “one of property, one arising out of contract, one protected

against tortious invasions, or one founded on a statute which

confers a privilege.” Id. (quoting Wimberly, 570 P.2d at 537). The

interest can also be intangible, “such as an interest in free speech

or expression, or an interest in having a government that acts

within the boundaries of our state constitution.” Id.

C. The District Court Erred by Assuming Illegality

¶ 15 As an initial matter, we conclude that the district court erred

by summarily finding that the sign was illegal. StreetMedia’s

complaint alleged that the sign was “lawfully constructed” because

the scenic byway designation was unenforceable. Despite these

allegations, the district court relied on the ALJ’s findings to assume

that the sign was an “illegal advertising device inconsistent with the

7 Outdoor Advertising Act.” It follows that the court erred because

such an assumption directly contradicted StreetMedia’s allegations,

which the court should have accepted as true when evaluating

standing. See Reeves-Toney v. Sch. Dist. No. 1, 2019 CO 40, ¶ 20

(“In determining whether standing has been established, we accept

as true all material allegations of fact in the complaint.”). Further,

StreetMedia’s complaint alleged that there was no substantial

evidence in the record supporting the ALJ’s factual findings. This is

a substantive judicial review claim challenging those findings,

which precludes the district court from assuming that the ALJ’s

challenged factual findings are true. See § 24-4-106(7)(b).

¶ 16 Besides, the district court failed to consider StreetMedia’s

equal protection claim, which depends on CDOT’s conduct itself,

not the sign’s legality. See Archer Daniels Midland Co. v. Colorado,

690 P.2d 177, 182 (Colo. 1984) (holding that for standing, the Equal

Protection Clause protects against both ingenious and open

discrimination).

¶ 17 Even so, CDOT contends that we should uphold the district

court’s conclusions because a reviewing court must defer to an

agency’s findings unless clearly erroneous or unsupported by the

8 record. See § 24-4-106(7)(b). But this contention fails because

such deference is not applicable for determining standing, which is

addressed before determinations on the merits. In other words, a

standing determination is based solely on the allegations and

claims in the complaint (and any supporting evidence). See

Ainscough, 90 P.3d at 857 (“[W]e look not to the policy being

challenged, but to the right that it is alleged to have injured.”

(emphasis added)); Colo. Manufactured Hous. Ass’n, 857 P.2d at 511

(“[W]hether the injury resulted from the alleged action of the

defendant is not part of the inquiry on standing . . . .”); Conrad v.

City & County of Denver, 656 P.2d 662, 668 (Colo. 1982) (“[T]hat the

prudential requirement of the standing rule has been satisfied is

based on the plaintiffs’ allegations and is not equivalent to a holding

on the merits . . . .” (emphasis added)).

D. StreetMedia Has Standing

¶ 18 Although the district court erred in the procedure it applied,

we still must determine de novo whether StreetMedia met its

burden to establish standing. See Pub. Serv. Co. of Colo., ¶ 14. To

make this determination, our inquiry must focus on the allegations

in relation to each of StreetMedia’s claims. See Wimberly, 570 P.2d

9 at 539 (“When standing is in issue, the broad question is whether

the plaintiff has stated a claim for relief which should be

entertained in the context of a trial on the merits.”). Addressing

each claim in turn, we conclude that StreetMedia has standing.

1. StreetMedia Has Standing for Its Judicial Review Claim

¶ 19 Because StreetMedia has a statutory right to judicial review of

CDOT’s permit revocation, StreetMedia has standing for its judicial

review claim.

¶ 20 Under the State Administrative Procedure Act (APA), “any

person adversely affected or aggrieved by any agency action may

commence an action for judicial review in the district court.”

§ 24-4-106(4) (emphasis added); see Marks v. Gessler, 2013 COA

115, ¶ 85 (holding that the right to judicial review under the APA is

limited to aggrieved parties). Aggrieved under the APA means

“having suffered actual loss or injury or being exposed to potential

loss or injury to legitimate interests including, but not limited to,

business, economic, aesthetic, governmental, recreational, or

conservational interests.” § 24-4-102(3.5), C.R.S. 2025. And an

aggrieved party has standing for judicial review because it has a

10 legally protected interest in an agency not exercising its discretion

arbitrarily. See Ainscough, 90 P.3d at 857 (“A statutory or

constitutional right to a non-arbitrary exercise of discretion in [an

agency decision] is all that is needed for a legally protected

interest.”).

¶ 21 The Outdoor Advertising Act creates a right to request an

administrative hearing under the APA for the denial of an

advertising device permit, which creates, in turn, a right to judicial

review by the district court. §§ 43-1-412(3), 24-4-106(4); see

Orsinger Outdoor Advert., Inc. v. Dep’t of Highways, 752 P.2d 55, 63

(Colo. 1988) (holding that the Outdoor Advertising Act is

constitutional, in part, because “subsequent judicial review of the

department’s administrative action is available and will be effective”

through the APA); see also Ryan, ¶ 15 (noting that because the APA

doesn’t confer standing, some other source of law must give rise to

a cause of action under the APA).

¶ 22 Here, StreetMedia’s judicial review claim asserts that CDOT’s

revocation of the permit was arbitrary and capricious, constituted

an abuse of discretion, was unsupported by evidence in the record,

and was contrary to StreetMedia’s First Amendment right to display

11 noncommercial and commercial speech. StreetMedia alleges that

CDOT’s revocation of StreetMedia’s permit caused actual economic

losses to its property interests, potential losses to advertising

revenue, and injury to its free speech interests. StreetMedia, then,

has standing as an aggrieved party because it has a legally

protected interest in CDOT not revoking its permit arbitrarily or

capriciously. See Ainscough, 90 P.3d at 857.

2. StreetMedia Has Standing for Its Declaratory Relief Claim

¶ 23 StreetMedia also demonstrated it has standing for its

declaratory relief claim by alleging both that the scenic byway

designation was improper and that it injured StreetMedia’s property

and constitutional interests.

¶ 24 Standing to maintain a declaratory relief action requires “an

injury in fact to a legally protected or cognizable interest.” Byers

Peak Props., LLC v. Byers Peak Land & Cattle, LLC, 2026 CO 7, ¶ 27

(citation omitted); see C.R.C.P. 57. And because an agency does

not have authority to determine a facial constitutional challenge, a

party does not have to raise such a challenge in agency proceedings

12 before raising it in the district court. Campaign Integrity Watchdog

LLC v. Griswold, 2025 COA 18, ¶ 20 n.5.

¶ 25 StreetMedia’s declaratory relief claim alleged that CDOT’s

Transportation Commission did not lawfully designate the scenic

byway — or at least CDOT failed to demonstrate a legal designation

before the ALJ. The complaint alleged that CDOT injured

StreetMedia by revoking the permit based on an unenforceable and

void scenic byway designation.2 Accordingly, StreetMedia sought a

declaration that the scenic byway designation is void, enforcement

based on the void designation violates StreetMedia’s rights, and the

void designation precludes revoking the permit. Similar to the

judicial review claim, StreetMedia has standing because the alleged

injury directly impacted StreetMedia’s tangible property interests in

its sign and nontangible free speech rights. See Ainscough, 90 P.3d

at 856.

2 To clarify, the designation of the scenic byway itself creates the

prohibitions on visible advertising devices. See § 43-1-419, C.R.S. 2025; Dep’t of Transp. Rule 9.00, 2 Code Colo. Regs. 601-3.

13 3. StreetMedia Has Standing for Its Equal Protection Claim

¶ 26 StreetMedia has standing as a “class of one” for its equal

protection claim because it alleged an injury to its constitutional

right to be free from intentional discrimination.

¶ 27 The Fourteenth Amendment to the United States Constitution

protects against “intentional and arbitrary discrimination.” Village

of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (quoting Sioux

City Bridge Co. v. Dakota County, 260 U.S. 441, 445 (1923)); see

Colo. Const. art. II, § 25; see also Garhart v. Columbia/Healthone,

L.L.C., 95 P.3d 571, 583 (Colo. 2004) (“Article II, section 25 of the

Colorado Constitution is our state’s counterpart to the federal

guarantee.”). A plaintiff pleads a colorable class-of-one equal

protection claim when it “alleges that [it] has been intentionally

treated differently from others similarly situated and that there is

no rational basis for the difference in treatment.” Olech, 528 U.S. at

564.

¶ 28 StreetMedia alleged that it is a class of one because CDOT had

intentionally granted or denied advertising permits in a way that

favored StreetMedia’s competitors without a rational basis for the

14 disparate treatment. As a result, StreetMedia has standing because

it alleged an injury to its constitutional right to receive

nondiscriminatory treatment in CDOT’s administration of the

Outdoor Advertising Act. See Garhart, 95 P.3d at 583 (holding that

the plaintiffs’ alleged facts of equal protection violations were

sufficient to satisfy Colorado’s standing requirements).

4. StreetMedia Has Standing to Seek Injunctive Relief

¶ 29 “A plaintiff seeking injunctive relief satisfies the threshold

requirement of standing by showing that the action complained of

has caused or has threatened to cause imminent injury to an

interest protected by law.” Bowen/Edwards Assocs., 830 P.2d at

1054. “A plaintiff may seek injunctive relief in concert with a

declaratory [relief] action under appropriate circumstances.” Id. at

1055. Likewise, a court can enjoin agency action in connection

with a judicial review claim. § 24-4-106(8).

¶ 30 StreetMedia’s injunctive relief claim seeks to enjoin the

“enforcement of the Final Agency Order” to prevent irreparable

harm because the permit revocation was based on the allegedly

improperly designated scenic byway. Taking StreetMedia’s

allegations as true, together with its declaratory relief and judicial

15 review claims, StreetMedia sufficiently alleged that its property and

free speech interests are threatened. Specifically, StreetMedia

alleged that its interests are threatened by the imminent

enforcement of the permit revocation and sought an injunction

against the revocation pending a final judgment on the validity of

the scenic byway designation and resolution of the judicial review

claim. Thus, StreetMedia has standing to seek injunctive relief.

Cf. Bowen/Edwards Assocs., 830 P.2d at 1055 (emphasizing that

resolving the question of standing does not resolve whether plaintiff

is entitled to a permanent injunction).3

3 We decline StreetMedia’s request to apply judicial estoppel to

CDOT based on oral arguments of counsel before another division in an unrelated case involving statutory regulations not at issue here. We also don’t consider the parties’ citations to unpublished decisions by divisions of this court. This court’s policy prohibits citation to our opinions that are not selected for official publication, with exceptions not applicable here. See Colo. Jud. Branch, Court of Appeals Policies, Policy Concerning Citation of Opinions Not Selected for Official Publication (2026), https://perma.cc/ZQW2- H29D.

16 ¶ 31 Although we determine StreetMedia has standing to bring its

claims4 — accepting the allegations in its complaint as true for this

purpose — we take no position on the viability of its substantive

claims. CDOT argued in the district court that StreetMedia’s

complaint failed to state a claim for relief and that it suffered from

other flaws related to subject matter jurisdiction. But the district

court did not reach those arguments, and CDOT does not ask us to

affirm the dismissal on alternate grounds. See Galvan v. People,

2020 CO 82, ¶ 45 (“[T]he party presentation principle . . . assumes

that parties . . . ‘know what is best for them, and are responsible for

advancing the facts and argument entitling them to relief.’” (quoting

United States v. Sineneng-Smith, 590 U.S. 371, 375-76 (2020)). We

therefore leave those questions for the district court.

¶ 32 Given all of the above, we conclude that the district court

erred by dismissing the complaint for lack of standing and remand

for the court to address the arguments raised in CDOT’s motion to

dismiss.

4 This includes all four claims in the complaint, though “an

injunction, even if pleaded as a claim for relief, is a remedy, not an independent cause of action.” Coomer v. Donald J. Trump for President, Inc., 2024 COA 35, ¶ 217.

17 III. Disposition

¶ 33 The judgment is reversed, and the case is remanded for

further proceedings consistent with this opinion.

JUDGE FOX and JUDGE SULLIVAN concur.