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

• Decision Date: 13 December 2021
• Docket Number: 3:19-cv-00141-JRS-MPB
• Citation: 575 F.Supp.3d 1015
• Parties: GEFT OUTDOOR, L.L.C., Plaintiff, v. CITY OF EVANSVILLE, Defendant.
• Court: U.S. District Court — Southern District of Indiana

575 F.Supp.3d 1015

GEFT OUTDOOR, L.L.C., Plaintiff,

v.CITY OF EVANSVILLE, Defendant.

No. 3:19-cv-00141-JRS-MPB

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

Signed December 13, 2021

A. Richard M. Blaiklock, Charles R. Whybrew, Lewis Wagner, LLP, Indianapolis, IN, for Plaintiff.

Dirck H. Stahl, Laura Katherine Boren, Ziemer Stayman Weitzel & Shoulders LLP, Evansville, IN, for Defendant.

Entry on Cross-Motions for Summary Judgment

JAMES R. SWEENEY II, JUDGE

GEFT Outdoor L.L.C. ("GEFT"), is an outdoor sign advertiser, who challenges the Zoning Ordinance (the "Ordinance") of the City of Evansville (the "City"), Indiana, in this lawsuit. GEFT intended to erect a digital billboard on property in Evansville and sought a variance in order to do so. The Board of Zoning Appeals ("BZA") denied GEFT variances. GEFT then sued under 42 U.S.C. § 1983, alleging that the Ordinance violates the First Amendment as incorporated against the states under the Fourteenth Amendment. GEFT claims that the Ordinance is unconstitutional on its face because it contains content-based regulations and that the permitting and variance procedures for signs are unconstitutional prior restraints on GEFT's free speech rights. GEFT's Amended Motion for Partial Summary Judgment, (ECF No. 94), and Defendants' Cross-Motion for Summary Judgment, (ECF No. 99), are before the Court.

I. Background

In the City, outdoor signs must comply with the City's sign ordinance ("Sign Standards"). The stated purpose of the Sign Standards includes "to ... provide standards, guidance and direction for sign users and sign designers as to what constitutes appropriate signage within the jurisdiction of the City." Ord., Ch. 18.140.010(A). The stated purpose of the zoning code as a whole is "to promote the public health, safety, and general welfare of the City[;] to enhance the use and enjoyment of property[;] and to provide for the regulation of land use in the community, while preserving the right of the individual property owner to use and enjoy his property." Ord., Ch. 18.05.020.

A "sign" means "an identification, description, display, or illustration which is placed upon, affixed to, painted, or represented directly or indirectly on a building or land and which directs attention to a product, person, business or service." Ord., Ch. 18.140.020(A)(1). Within that definition are both an "on-premises sign," which is "a sign directing attention to the use, business, or activity offered or sold as the primary use, business, or activity on the premises where it is located," and an "off-premises sign," which is "a sign directing attention to a product, person, business, or service not offered or sold as the primary use, business, or activity on the premises where it is located." Ord., Ch. 18.140.020(A)(1)(a), (b).

Under the Sign Standards, "[e]xcept as otherwise provided ..., it shall be unlawful for any person to erect, construct, enlarge or move any sign, or cause the same to be done without first obtaining an improvement location permit (also known as a ‘sign permit’) issued by the Planning Department." Ord., Ch. 18.140.020(B)(1). The City, through the Director of the Area Plan Commission ("APC"), has the authority to issue sign permits. Ord., Ch. 18.195.010(B). The City, through the APC, also has the authority to revoke a permit for a violation of the Sign Standards. Ord., Ch. 18.195.101(A)(2). The standards guiding the APC's decision to approve or deny a sign permit application are found in the Evansville Metropolitan Code, primarily Chapter 18.140, but also in other Chapters. (City's Answer to Interrogs., No. 4, ECF No. 95-6.) The Sign Standards do not specify a time limit for the Director to make a decision on an application for a sign permit. (Id. , No. 7 (stating that a sign permit application "will generally be approved or denied within one week").)

The Sign Standards exempt certain signs (the "Exemptions") from the permit requirement:

(1) Name and Address Identification. Signs ... which identify the names and addresses of occupants but do not denote commercial activity.

(2) Flags and Insignias. Flags and insignias of a governmental unit, not-for-profit organization, or church, except in connection with a commercial promotion.

(3) Integral Identification Features. Names of buildings, date of erection, monumental citations, commemorative tablets and the like when carved into stone, concrete or similar construction or similar material made of bronze, aluminum, or other permanent type construction and made an integral part of the structure.

(4) Public Signs. Public signs placed on-premises or off-premises by or at the instruction of public officer(s) in the performance of public duty, such as signs to promote safety, legal notices, no trespassing, or traffic signs; public memorial plaques; signs of public historical interest; signs directing people to public and quasi-public facilities; and signs no larger than 18 square feet, placed by a charitable county-wide beautification organization at a landscaped site identifying an adopter of an adopt-a-spot location.

(5) Emergency Signs. On-premises or off-premises emergency signs, such as those used by the fire or police departments.

(6) Political Signs. On-premises or off-premises political campaign signs.

(7) Utility Marker Signs. Utility signs necessary to mark cables and lines for public and private utilities unless such signs are determined to be a hazard by the Executive Director of the Planning Department or by any other governmental agency.

(8) Sandwich Board Signs. For commercial businesses only, one sandwich board sign per business use located on a property does not require a sign permit if it meets the following requirements ...

(9) Directional Signs. On-premises directional signs are allowed without a sign permit if they meet the following requirements ...

(10) Window Signs. Window signs are allowed without a sign permit; provided, that all window signs displayed at any one time do not cover more than 25 percent of the total window area for each business use.

(11) Real Estate Signs.

(12) Auction Signs.

(13) Banners.

(14) Pennants, Streamers, Inflatables.

(15) Garage Sale Signs.

(16) Construction Signs.

(17) Sponsorship Signs.

(18) Special Event Signs.

(19) Electronic/Digital Signs that display Time and Temperature or Gas Prices.

Ord., Ch. 18.140.030(C), (D). Some of these terms are defined in the Sign Standards. For example, "construction sign" is defined as a "sign that contains a message relating to construction work that is in progress or upcoming on the premises where the sign is displayed ...." Ord., Ch. 18.140.020(A)(1)(i).

The meaning of other terms is subject to interpretation. The Zoning Administrator for the APC testified that a "political campaign sign" is a sign showing that a person is running for office. (Donna Holderfield Dep. 10, ECF No. 110-2.)¹ The Zoning Administrator also testified that whether a sign is a political campaign sign or a noncommercial sign turns on the content of the sign and that the decisionmaker's personal judgment comes into play in determining whether a sign is exempt. (Id. at 14–15.)

An applicant who is denied a sign permit can petition the BZA for a variance. Ord., Ch. 18.165.010(A). The BZA decides whether to grant all petitions for a variance, including petitions for variances from the Sign Standards. Ord., Ch. 18.165.010(B). The BZA may grant a variance if it finds the following:

(1) The approval will not be injurious to the public health, safety, morals, and general welfare of the community.

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

(3) The strict application of the terms of this title will result in practical difficulties in the use of the property.

(4) The variance is not a variance of the use of the property.

(5) The petitioner's property is not located in a planned unit development.

(6) The need for the variance is not created by the applicant.

Ord., Ch. 18.165.010(B) (emphases added). The terms emphasized above are not defined in the Ordinance and their meanings are subject to differences of opinion. (London Dep. 28–29, 31, ECF No. 110-1.) In granting a variance, the BZA may impose "whatever conditions or limitations are necessary to protect adjacent properties and the surrounding neighborhood and effectuate the purposes of [the Ordinance]." Ord., Ch. 18.165.010(D). Although a statute requires the BZA to "fix a reasonable time for the hearing" of a variance, neither the statute nor the Ordinance contains a specific time limitation for the BZA to decide whether to approve or deny a variance application. (City's Answer to Interrogs., No. 7, ECF No. 95-6; London Dep. 9, ECF No. 110-1.)

If the BZA denies a petition for a variance, the applicant has a right to appeal the decision. (London Dep. 50, ECF No. 110-1.) The applicant bears the burden of proof on appeal, and no time limit is provided within which the appeal must be decided. Ind. Code § 36-7-4-1600 et seq.

GEFT buys or leases land upon which to construct, maintain, and/or operate signs to be used for the dissemination of both commercial and noncommercial speech. (Aff. of Jeffrey Lee, ¶ 3, ECF No. 95-1.) The owner of real property located on Oak Grove Road in the City previously leased to GEFT a portion of that property, which is adjacent to I-69, a major thoroughfare in the City. (Id. ¶ 4.) GEFT intended to erect a digital billboard displaying both commercial and noncommercial speech on the property. (Id. ¶¶ 5, 7.) GEFT had a permit from the State of Indiana to erect the digital billboard. (Id. ¶ 6.)

On April 11, 2019, GEFT sought variances for construction of the digital billboard. (Lee Aff. ¶ 11, ECF No. 95-1; Compl., Ex. A, ECF No. 59-1.) Specifically, the variances were from the minimum spacing distance between off-premise signs, the maximum height of an off-premise sign, and the restriction on an off-premise sign on any...