GEFT Outdoor, L.L.C. v. Monroe Cnty.

• Decision Date: 10 August 2021
• Docket Number: 1:19-cv-01257-JRS-MPB
• Court: U.S. District Court — Southern District of Indiana
• Parties: GEFT OUTDOOR, L.L.C., Plaintiff, v. MONROE COUNTY, INDIANA, MONROE COUNTY BOARD OF ZONING APPEALS, Defendants.

GEFT OUTDOOR, L.L.C., Plaintiff, v. MONROE COUNTY, INDIANA, MONROE COUNTY BOARD OF ZONING APPEALS, Defendants.

No. 1:19-cv-01257-JRS-MPB

United States District Court, S.D. Indiana, Indianapolis Division

August 10, 2021

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

JAMES R. SWEENEY II, JUDGE

GEFT Outdoor LLC ("GEFT") sought to erect a digital billboard in Monroe County, Indiana ("County"), but its specific plans did not mesh with the County's sign ordinance. After the County denied GEFT's application for a variance, GEFT filed suit under 42 U.S.C. § 1983 alleging that the sign ordinance violates the First Amendment as incorporated against the states under the Fourteenth Amendment. GEFT moves for partial summary judgment on all claims other than that for damages. (ECF No. 53.) The County moves for summary judgment on all claims. (ECF No. 63.) For the following reasons, the motions are granted in part and denied in part.

I. Background

In Monroe County, outdoor signs must comply with the County's sign ordinance ("Sign Standards"). The announced purpose of the Sign Standards is "to promote public health, safety, and welfare" Ord. § 807-1. More specifically, two of the County's goals in enacting the ordinance were "maintaining and enhancing the aesthetic environment and the County's ability to attract tourism and other sources of economic development and growth," Ord. § 807-1(3), and "improving pedestrian and traffic movement and safety (e.g., maintaining appropriate sight distances at intersections and reducing distractions)," Ord. § 807-1(4). A "sign" includes any "device, fixture, placard, or structure that uses any color, form, graphic, illumination, symbol, or writing . . . to communicate information of any kind to the public." Ord. § 801-2.

Under the Sign Standards, "except as otherwise provided, no person shall erect, repair, or relocate any sign as defined herein without first obtaining a permit from the Administrator." Ord. § 807-3. The Administrator is currently the County Planning Director. (Wilson Dep. Tr 31:21-23, ECF No. 54-2.) Generally, a speaker wishing to publish a sign must submit an application and pay a fee. Ord § 807-3(A). The County Planning Director will issue a sign permit only if "the proposed sign is in compliance with all of the requirements of this zoning ordinance." Ord. § 807-3(B). Those requirements include limits on placement, illumination, maintenance, height, setback, and numerosity. Ord. §§ 807-5, 807-6(A), 807-6(C)-(F). The Sign Standards do not specify a time limit for the County Planning Director to act on any given application.

Not every sign requires a permit, however. The Sign Standards exempt four kinds of signs from the permit requirement:

(1) Any sign of not more than one and one-half (1-1/2) square feet in area; provided, that no more than one sign shall be permitted per zone lot;

(2) Any governmental sign;

(3) Sculptures, fountains, mosaics and design features which do not incorporate advertising or identification;

(4) Temporary noncommercial signs or devices meeting the following criteria:

a) Each zone lot shall be allocated a total of thirty-two (32) square feet of temporary signs or devices.

b) Temporary signs or devices may be located no less than ten (10) feet from any other sign or structure;

c) Freestanding temporary signs or devices may not exceed six (6) feet in height;

d) External illumination of temporary signs or devices is prohibited.

However, if banners, streamers, pennants, balloons, propellers, strung light bulbs, or similar devices are used as the temporary signs or devices they may only be displayed for a period of no longer than fortyeight (48) hours.

Ord. § 807-3(C). Some of these terms are words of art. A governmental sign is defined as "[t]raffic or other civic signs, signs required by law or emergency, railroad crossing signs, legal notices, and any temporary, or non-commercial signs as are authorized under policy approved by the County, State, or Federal government." Ord. § 801-2. "'Temporary sign' means any sign that is intended to be displayed for a limited period of time and is not permanently anchored or secured to a building or not having supports or braces permanently secured to the ground, including but not limited to: banners, pennants, or advertising displays including portable signs." Id. A "Commercial Message" is "[a]ny sign wording, logo, or other representation that, directly or indirectly, names, advertises, or calls attention to a business, product, service, or other commercial activity." Id. And a "Noncommercial Message" is just the opposite: a sign that "carries no message, statement, or expression related to the commercial interests of the . . . person responsible for the sign message." Id.

There is also a section of the Sign Standards called "Prohibited Signs," which bans certain categories of signs even if the sign would otherwise be allowed:

(1) Portable signs are prohibited.

(2) All animated or changeable copy signs (including digital billboards), or signs which move by mechanical means or by the movement of air are prohibited.

(3) Temporary signs or devices consisting of a series of banners, streamers, pennants, balloons, propellers, strung light bulbs, or similar devices are prohibited, except as allowed in 807-3(C)(4).

(4) Snipe Signs[.]^[1]

(5) Off-Premise Commercial Signs, except as allowed in 807-4(B).^[2]

Ord. § 807-6(B). An "Off-Premises Sign" is one that "directs attention to a business, commodity, service or entertainment not conducted, sold or offered on the premises where the sign is located, or which business, commodity, service or entertainment forms only minor or incidental activity upon the premises where the sign is displayed." Ord. § 801-2. In contrast, an "On-Premises Sign" is one that "advertises or directs attention to a business, commodity, or service conducted, offered, or sold on the premises, or directs attention to the business or activity conducted on the premises." Id.

Someone who wants to post a noncompliant sign in the County is not wholly without recourse. As the Indiana Code requires whenever a local government adopts a zoning ordinance, ^[3] the County has established a Board of Zoning Appeals ("BZA") and a process for obtaining variances. The BZA makes all variance decisions for the County, including variances from the requirements of the Sign Standards. Ord. § 812-1. After the BZA receives an application for a variance, within thirty days, the BZA must schedule and announce a date and time for a public hearing. Ord. § 812-3(A). The variance approval procedure lists several notice requirements for interested parties. Ord. §§ 812-3(D)-(F). After the hearing, the BZA must approve the application, approve the application with conditions, or deny the application. Ord. § 812-3(H); see also Ord. § 812-7 (BZA has authority to make approval contingent on any condition imposed "to protect the public health, and for reasons of safety, comfort and convenience"). But, beyond scheduling a hearing within a certain timeframe, there is no enumerated time limit within which the BZA must act on any given variance application. (Defs.' Ans. 1st Interrogs. ¶ 8, ECF No. 54-5.)

To approve a use variance, the BZA must find that

(A) the approval will not be injurious to the public health, safety, and general welfare of the community;

(B) the use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner;

(C) the need for the variance arises from some condition peculiar to the property involved;

(D) the strict application of the terms of the Zoning Ordinance will constitute an unnecessary hardship if applied to the property for which the variance is sought; and,

(E) the approval does not interfere substantially with the Comprehensive Plan. Especially, the five (5) principles set forth in the Monroe County Comprehensive Plan[.]^[4]

Ord. § 812-5.

To approve a design variance, the BZA must find that the applicant has adduced "substantial evidence establishing that, if implemented:"

(A) the approval, including any conditions or commitments deemed appropriate, will not be injurious to the public health, safety, and general welfare of the community, because:

(1) it would not impair the stability of a natural or scenic area;

(2) it would not interfere with or make more dangerous, difficult, or costly, the use, installation, or maintenance of existing or planned transportation and utility facilities;

(3) the character of the property included in the variance would not be altered in a manner that substantially departs from the characteristics sought to be achieved and maintained within the relevant zoning district....

(4) it would adequately address any other significant public health, safety, and welfare concerns raised during the hearing on the requested variance;

(B) the approval, including any conditions or commitments deemed appropriate, would not affect the use and value of the area adjacent to the property included in the variance in a substantially adverse manner, because:

(1) the specific purposes of the design standard sought to be varied would be satisfied;

(2) it would not promote conditions (on-site or off-site) detrimental to the use and enjoyment of other properties in the area . . .; and,

(3) it would adequately address any other significant property use and value concerns raised during the hearing on the requested variance; and,

(C) the approval, including any conditions or commitments deemed appropriate, is the minimum variance necessary to eliminate practical difficulties in the use of the property, which would otherwise result from a strict application of the terms of the Zoning Ordinance.

Ord. § 812-6.

GEFT is a limited-liability...