Geft Outdoor, LLC v. Monroe Cnty.

• Decision Date: 23 November 2021
• Docket Number: 1:19-cv-01257-JRS-MPB
• Parties: GEFT OUTDOOR, L.L.C., Plaintiff, v. MONROE COUNTY, INDIANA, MONROE COUNTY BOARD OF ZONING APPEALS, Defendants.
• Court: U.S. District Court — Southern District of Indiana

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

November 23, 2021

ENTRY ON MOTION FOR RECONSIDERATION, MOTION FOR PERMANENT INJUNCTION, AND MOTION TO STAY CASE

JAMES R. SWEENEY II, JUDGE UNITED STATES DISTRICT COURT

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 moved for partial summary judgment on all claims other than that for damages. (ECF No. 53.) The County moved for summary judgment on all claims. (ECF No. 63.)

On August 10, 2021, the Court issued its Order on Motions for Summary Judgment, granting in part and denying in part the cross-motions for summary judgment. The Court enjoined the County "from (1) enforcing the exemptions in Ordinance § 807-3(C)(2) and (3)-i.e., continuing to exempt those kinds of signs from the permit requirement-and (2) applying the variance process in Chapter 812 to

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variances from the sign requirements in Chapter 807." (Order on Motions for Summary Judgment, 42, ECF No. 90.)

On August 18, 2021, GEFT filed a Motion for Permanent Injunction, (ECF No. 93), seeking a separate order permanently enjoining the County as ordered in the Order on Motions for Summary Judgment. GEFT also filed a Motion for Reconsideration, (ECF No. 94), requesting the Court to reconsider portions of the Order on Motions for Summary Judgment and filed an Unopposed Motion to Stay Case Pending Ruling on the motion to reconsider and/or appeal, (ECF No. 107). GEFT correctly states that the Court's decision focused on the commercial aspects of the regulations and did not address GEFT's claim that the permitting scheme was an impermissible prior restraint on speech. Further, since the Court issued its Order on Motions for Summary Judgment, a jurisdictional issue caught the Court's attention. Accordingly, the Motion for Reconsideration is granted, the previous Order on Motions for Summary Judgment, (ECF No. 90), is vacated, and the Court issues this Entry ruling on the cross-motions for summary judgment.

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 (1) "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 (2) "improving pedestrian

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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:

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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; [and]

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 forty-eight (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.

A section of the Sign Standards called "Prohibited Signs," bans certain categories of signs even if the sign would otherwise be allowed:

(1) Portable signs are prohibited.

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(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 use and design 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

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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:"

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(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,

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