Geft Outdoor, L.L.C. v. City of Westfield

• Decision Date: 30 September 2020
• Docket Number: Case No. 1:17-cv-04063-TWP-TAB
• Citation: 491 F.Supp.3d 387
• Parties: GEFT OUTDOOR, L.L.C., and Jeffrey S. Lee, Plaintiffs, v. CITY OF WESTFIELD, Hamilton County, Indiana, and City of Westfield Board of Zoning Appeals, Defendants.
• Court: U.S. District Court — Southern District of Indiana

491 F.Supp.3d 387

GEFT OUTDOOR, L.L.C., and Jeffrey S. Lee, Plaintiffs,

v.CITY OF WESTFIELD, Hamilton County, Indiana, and City of Westfield Board of Zoning Appeals, Defendants.

Case No. 1:17-cv-04063-TWP-TAB

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

Signed September 30, 2020

A. Richard M. Blaiklock, Charles R. Whybrew, Taylor L. Fontan, Lewis Wagner, LLP, Indianapolis, IN, for Plaintiff GEFT Outdoor, L.L.C.

Charles R. Whybrew, Taylor L. Fontan, A. Richard M. Blaiklock, Lewis Wagner LLP, Indianapolis, IN, for Plaintiff Jeffrey S. Lee.

Blake P. Holler, Mark J. R. Merkle, Krieg DeVault LLP, Carmel, IN, James S. Stephenson, Pamela G. Schneeman, Stephenson Morow & Semler, Indianapolis, IN, for Defendant City of Westfield, Hamilton County, Indiana.

Mark J. R. Merkle, Krieg DeVault LLP, Indianapolis, IN, for Defendant City of Westfield Board of Zoning Appeals.

ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

TANYA WALTON PRATT, JUDGE

This matter is before the Court on cross Motions for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 by Plaintiff GEFT Outdoor, LLC ("GEFT") (Filing No. 137 ) and Defendants City of Westfield ("Westfield") and City of Westfield Board of Zoning Appeals ("BZA") (collectively, "Defendants") (Filing No. 142 ). Also pending before the Court is GEFT's Motion for Leave to File Surreply Brief (Filing No. 150 ). In October or early November 2017, GEFT began construction of a digital billboard near the highway in Westfield, Indiana. Westfield determined that GEFT's actions violated its local ordinances, so it threatened imprisonment if GEFT continued erection of its sign, which resulted in GEFT halting its activities. GEFT initiated this lawsuit and asks the Court for compensatory damages and declaratory and injunctive relief for violations of free speech and due process rights as well as for abuse of process. GEFT filed a Motion for Partial Summary Judgment and Westfield filed a Cross-Motion for Summary Judgment on the claims. For the reasons explained below, the Court grants GEFT's partial motion and grants in part and denies in part the Defendants’ motion for summary judgment. The Court also grants GEFT's motion for leave to file a surreply.

I. BACKGROUND

GEFT is a company that buys and leases land to then build, maintain, and operate signs on that land. It disseminates commercial and non-commercial speech on its billboards. Esler Properties, LLC ("Esler") owns land located at 16708 Dean Road, Westfield, Indiana, immediately adjacent to U.S. 31/Meridian Street (the "Esler property"). Esler leased a portion of this property to GEFT; thus, GEFT holds a leasehold interest in the property. GEFT applied for and received a permit from the State of Indiana to erect a digital billboard on the Esler property. The state permit was issued on October 5, 2017. GEFT intends to display both commercial and non-commercial speech on the digital billboard, and it had advertisers’ contracts lined up for the digital billboard to begin in January 2018 (Filing No. 19-1 at 2–3, 7; Filing No. 127-3 at 6 ). GEFT possesses similar leasehold interests in portions of eight other properties located throughout Westfield, and it plans to put up digital billboards on those properties also (Filing No. 37-1 at 4 ).

GEFT erected a ten-foot by four-foot "no trespassing" sign at the Esler property within its leasehold interest and also installed a large steel pole into the ground to serve as the foundation and structural support for its digital billboard. This steel pole was installed in either October or early November 2017 (Filing No. 19-1 at 2–3; Filing No. 127-3 at 4–5). Then on November 3, 2017, GEFT initiated this lawsuit, challenging the constitutionality of Westfield's local ordinances regarding sign restrictions and exemptions (Filing No. 1 ).

In Spring 2017, Westfield adopted the Westfield-Washington Township Unified Development Ordinance ("UDO") with the stated purpose "to guide the growth and development of the community" in order to, among other things, "promote the public health, safety, convenience, and general welfare of the community." (Filing No. 88-1 at 8.) As one of its key economic development initiatives, Westfield has invested heavily in an effort to become a national tournament tourism venue, and views maintaining the aesthetic quality of its community (including minimizing visual clutter) as important (Filing No. 92-13 at 23–24). The UDO combined Westfield's zoning ordinances and subdivision control ordinances into a single book and code title, and it applies to all land within Washington Township and Westfield (Filing No. 88-1 at 8 ).

Section 6.17(A) of the UDO explains the purpose of Westfield's "sign standards":

[Westfield] wishes to establish sign regulations for the design, placement, and maintenance of signs which provide a reasonable and impartial means to permit communication, protect the public health, safety, and general welfare, minimize hazards to pedestrians and motorists along Streets and at intersections, enhance the aesthetic environment of the community, safeguard property values, minimize possible adverse effects of signs on nearby property, [and] protect public and private investment in buildings and open space ....

(Filing No. 89-1 at 68.)

The UDO's "sign standards" section is only one of twenty-two sections contained within Chapter 6 of the UDO. The UDO defines a sign as "[a]ny display or device placed on property in any fashion which is designed, intended, or used to convey any identification, message, or information other than an address number." (Filing No. 91-1 at 15.) The UDO provides that a "sign permit shall be required for all signs ... unless otherwise exempted herein." (Filing No. 138-1 at 3.) The UDO then provides a list of signs that are exempt from the permit requirement. Id. at 3–4.

The UDO also prohibits certain types of signs, including "pole signs" and "off-premises signs." (Filing No. 138-1 at 4.) A pole sign is a sign that "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." (Filing No. 91-1 at 17.) An off-premises sign is a sign that directs "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. at 16. An on-premises sign is permitted and conveys information about things offered at that property, whereas an off-premises sign is prohibited and conveys information about things offered at a different property.

Westfield's director of the economic and community development department is given authority to review and decide sign permit applications. If the proposed sign plan complies with the requirements of the UDO, then a sign permit shall be issued. If a sign permit application is denied, the UDO provides for an appeal to the BZA (Filing No. 138-1 at 2–3, 22).

In its original Complaint, GEFT alleged that the sign exemptions, which apply to some commercial and some non-commercial speech, apply solely based on the topic or content of the speech on the sign; thus, the permit requirement and the exemptions are a content-based speech restriction. GEFT further alleged that the off-premises ban is an impermissible content-based speech restriction. GEFT asserted three claims in its original Complaint. First, it asserted that the sign permit exemptions violate the free speech clause of the federal and state constitutions. Second, it asserted that the prohibition against off-premises signs violates the free speech clause of the federal and state constitutions. Third, it asserted that Westfield's sign standards are void under Indiana's statutory "home rule" because the UDO was not enacted consistent with the requirements of the home rule (Filing No. 1 ).

Four days after GEFT initiated this lawsuit, on November 7, 2017, Westfield posted a "stop work notice" on the steel pole that GEFT had erected on the Esler property. The notice identified violations of "installation of an accessory structure without a permit," and "installation of a sign without a permit." (Filing No. 19-1 at 3, 9.)

Two weeks later, on November 21, 2017, GEFT notified Westfield that it believed the sign ordinances were unconstitutional, and it intended to complete the work on erecting the digital billboard within the next thirty days (Filing No. 37-1 at 2–4). On November 22, 2017, Westfield responded to GEFT's letter, notifying GEFT and Esler (the property owner) that they were violating the UDO regarding signs and an accessory structure. Westfield's letter instructed GEFT and Esler to remedy the violation within thirty days to avoid an enforcement action (Filing No. 37-2 at 2–7).

On December 16, 2017, GEFT mobilized a construction team to put an "advertising head" on the steel pole to then place the digital billboard. After they had been on-site for a couple of hours, GEFT and its contractors were confronted by a Westfield inspector and a Westfield police officer and sergeant. They demanded that work at the site cease. When GEFT representatives asked what would happen if they continued working, they were told that they would be "asking for trouble." The Westfield inspector then went to each of the contractors and told them that they would be issued a fine if they continued working on the site (Filing No. 19-1 at 3–4).

Once the police officers and city inspector left the site, work resumed on the head bracing portion of the sign, but approximately twenty minutes later, Brian Zaiger ("Zaiger") arrived at the site and introduced himself as the city attorney. Zaiger threatened the GEFT representatives and contractors that they would be arrested if they continued working at the site because it was a violation of the stop work order and was a "common nuisance." Plaintiff Jeffrey S. Lee ("Lee"), GEFT's founder and owner, called GEFT's attorney and asked him to talk...