Geft Outdoors, LLC v. City of Westfield

• Decision Date: 25 April 2019
• Docket Number: No. 18-3236,18-3236
• Citation: 922 F.3d 357
• Parties: GEFT OUTDOORS, LLC, Plaintiff-Appellant, v. CITY OF WESTFIELD, Hamilton County, Indiana, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

922 F.3d 357

GEFT OUTDOORS, LLC, Plaintiff-Appellant,

v.CITY OF WESTFIELD, Hamilton County, Indiana, Defendant-Appellee.

No. 18-3236

United States Court of Appeals, Seventh Circuit.

Argued April 5, 2019

Decided April 25, 2019

Rehearing and Rehearing En Banc Denied May 23, 2019

A. Richard Musgrove Blaiklock, Attorney, LEWIS WAGNER, LLP, Indianapolis, IN, for Plaintiff-Appellant.

Mark J.R. Merkle, Attorney, KRIEG DEVAULT, Carmel, IN, Pamela G. Schneeman, James S. Stephenson, Attorneys, STEPHENSON MOROW & SEMLER, Indianapolis, IN, for Defendant-Appellee.

Before Flaum, Kanne, and Scudder, Circuit Judges.

Flaum, Circuit Judge.

GEFT Outdoors, LLC began building a digital billboard on its property in the City of Westfield, Indiana without obtaining or applying for the requisite sign permit. GEFT believed Westfield’s relevant sign standards ordinance contains unconstitutional content-based speech restrictions and that this invalidity renders the ordinance nonexistent. GEFT only stopped installing the billboard when a contract attorney for Westfield threatened to arrest GEFT’s representatives if the installation work continued. After this confrontation, Westfield and GEFT filed dueling injunction motions. GEFT asked for an injunction preventing Westfield from violating its due process rights; Westfield asked the district court to enjoin GEFT from installing the billboard pending the outcome of this litigation. The district court denied GEFT’s motion and granted Westfield’s motion, and GEFT filed this interlocutory appeal. We affirm.

I. Background

A. GEFT’s Billboard & Westfield’s Sign Standards

Plaintiff-appellant GEFT buys and leases land upon which it builds, maintains, and operates signs. It holds a valid leasehold interest in property located in Westfield (the "Esler Property"), and it initiated this lawsuit because it sought to build a digital billboard (the "Billboard") on this leased property. To do so, it needed a permit from both the State of Indiana and the City of Westfield. See Ind. Dep’t of Transp., Outdoor Advertising Control Manual 46 (2014), https://www.in.gov/indot/files/Permits_OutdoorAdvertisingControlManual_2014.pdf (Indiana permitting requirements "are in addition to any permit or licensing requirements of local governing bodies").

Defendant-appellee Westfield adopted the Westfield-Washington Township Unified Development Ordinance in 2014. See generally Westfield-Washington Township, Ind. Ordinance ("UDO"). The UDO regulates a broad range of development activities in Westfield, including the design, placement, and maintenance of signs within the city. Id. art. 6.17 (the "Sign Standards").

The Sign Standards require a permit for most signs, but thirteen categories are exempt from that requirement (the "Permit Exceptions"). Id. art. 6.17(C)–(D).¹ The Sign Standards also prohibit twelve types of signs entirely, two of which the parties discuss here. See id. art. 6.17(E). "Off-premise Signs" are not allowed in Westfield, "except as otherwise permitted by" the UDO (the "Off-Premises Ban"). Id. art. 6.17(E)(5). An off-premises sign is "[a] Sign directing attention to a specific business, product, service, entertainment, or any other activity offered, sold, or conducted elsewhere than upon the lot where the Sign is displayed." Id. art. 12.1. Westfield also bars "Pole Signs." Id. art. 6.17(E)(4). A pole sign is "[a] Sign which is supported by one or more poles, posts, or braces upon the ground, in excess of six (6) feet in height, not attached to or supported by any building." Id. art. 12.1.

The UDO treats signs erected in violation of its provisions (including signs erected without permits) as common nuisances. Id. art. 11.2. To remedy such a nuisance, Westfield "may issue a stop work order and shall advise the Property Owner of the sign ... in writing of a violation of this Chapter and specify a date for compliance. The written notice shall describe the violation, appeal process, and enforcement provisions including penalties that may be assessed." Id. art. 11.5(A). The city may also obtain an injunction in state court to restrain UDO violations. Id. art. 11.5(B).

GEFT obtained the requisite sign permit from Indiana in October 2017. However, it never obtained (or even applied for) a sign permit from Westfield.

B. GEFT’s Billboard & Federal Lawsuit

Notwithstanding its lack of permit, GEFT began to erect the Billboard on the Esler Property on November 2, 2017. Specifically, GEFT installed a steel pole in the ground to serve as the Billboard’s foundation and built a forty-square-foot "No Trespassing" sign nearby. The next day, GEFT sued Westfield in the Southern District of Indiana, challenging two portions of the Sign Standards—the Permit Exceptions and the Off-Premises Ban—as unconstitutional content-based speech restrictions. GEFT specifically alleged the Permit Exceptions and the Off-Premises Ban violated the First Amendment to the United States Constitution and Article I, § 9 of the Indiana Constitution, and that the Sign Standards did not comply with Indiana Home Rule requirements. GEFT sought as relief a declaratory judgment that the UDO’s Sign Standards chapter was unconstitutional on its face and as applied, an order enjoining Westfield from enforcing the chapter, and damages pursuant to 42 U.S.C. § 1983.

On November 7, Westfield posted a "Stop Work Notice" on the steel pole on the Esler Property. The notice listed two UDO violations: "Installation of an accessory structure without a permit" and "Installation of a sign without a permit." GEFT responded to this development by letter on November 21, informing Westfield that it "intend[ed] to move forward with the erection of the Billboard" within the next thirty days. GEFT also informed the city that in its view, the Sign Standards simply did not apply to this planned work:

The City’s Sign Standards purport to preclude the erection of the Billboard. However, the Sign Standards are unconstitutional under applicable law, as they restrict GEFT’s right to free speech under the First Amendment. Because they are unconstitutional, it is as if the Sign Standards do not exist.... Because the Sign Standards are void due to their unconstitutionality ... there are no local sign regulations governing GEFT’s erection of the Billboard.

In turn, Westfield sent another letter on November 22, elaborating on the UDO violations identified on its earlier Stop Work Notice.² First, Westfield stated that the steel pole constituted an "Accessory Building" under the UDO, and GEFT should have obtained an improvement location permit (separate from and in addition to a sign permit) before installing it.³ Second, Westfield informed GEFT that if the steel pole was intended to be part of a sign, there were two further issues: GEFT should have applied for a sign permit before commencing installation, and in any event, the UDO bans all pole signs. Finally, Westfield informed GEFT that "[t]his letter is being provided as a warning to notify you of these violations ... Please remedy this violation within thirty (30) days from the issuance of this letter (December 22^nd) in order to avoid further enforcement action." Westfield then posted two more Stop Work Notices (identical to the first) on the steel pole, on November 27 and December 8.

Despite these notices, GEFT mobilized a construction team on December 16 to finish erecting the Billboard by placing an "advertising head" on the steel pole. At approximately 8:15 AM, GEFT’s contractors began their work by offloading steel components at the site, on the ground near the pole. GEFT’s founder and owner Jeffrey Lee was onsite that morning, along with GEFT representative John Kisiel, two contractors hired to perform sign erector work on the sign head installation (Marshall Heath Brock and Phillip Finn), a crane operator, and others. At around 10:15 AM, Westfield City Inspector Matthew Skelton arrived at the Esler Property along with two Westfield police officers. They demanded that all work stop, and one of the police officers told Lee that if construction continued, GEFT would be "asking for trouble."

While the City Inspector and the officers were still onsite, counsel for Westfield e-mailed GEFT’s counsel, informing them that "GEFT or its agents ... appear to be attempting to continue to build a structure without a permit in violation of the Westfield UDO and the Stop Work Order. Law enforcement has been called and the City will use its police powers as necessary to enforce the stop work order." Counsel for GEFT responded that Westfield had no legal basis to cease activity at the Esler Property; Westfield’s counsel in turn cited the UDO and noted that the city "has the authority to abate a common nuisance by using its police powers."

Back at the Esler Property, Skelton spoke with each of GEFT’s onsite contractors, including Brock and Finn, informing them that they would be fined if they continued to do any work on the Billboard in violation of the Stop Work Orders. The crane operator demobilized the crane and the contractors stopped all their work. But approximately five minutes after Skelton and the police officers left the site, the contractors resumed installation of the Billboard.

About twenty minutes later, Brian Zaiger (a partner at a private law firm representing the city) arrived at the site. Zaiger identified himself as a "City Attorney" and advised Lee that "the police were on their way." Zaiger then pointed at Lee and Kisiel and said that if work was not stopped immediately, he would have them arrested along with GEFT’s onsite contractors. When Lee said that this was a civil matter rather than a criminal one, Zaiger responded that Lee was in violation of the Stop Work Orders, any continued work was a nuisance, and the only way to abate the nuisance was to "throw you two in jail and then figure it out from there." During his exchange with Zaiger, Lee called GEFT’s attorney and offered the phone to Zaiger; Zaiger, however, said he "wasn’t interested"...