View Outdoor Adver., LLC v. Town of Schererville Bd. of Zoning Appeals

• Decision Date: 22 January 2015
• Docket Number: Cause No. 2:13 CV 219–PPS.
• Citation: 86 F.Supp.3d 891
• Parties: VIEW OUTDOOR ADVERTISING, LLC, Plaintiff, v. TOWN OF SCHERERVILLE BOARD OF ZONING APPEALS, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

86 F.Supp.3d 891

VIEW OUTDOOR ADVERTISING, LLC, Plaintiff

v.TOWN OF SCHERERVILLE BOARD OF ZONING APPEALS, et al., Defendants.

Cause No. 2:13 CV 219–PPS.

United States District Court, N.D. Indiana, Hammond Division.

Signed Jan. 22, 2015.

James L. Wieser, Wieser & Wyllie LLP, Schererville, IN, Timothy E. Ochs, Zeff A. Weiss, Ice Miller LLP, Indianapolis, IN, for Plaintiff.

Byron D. Knight, William W. Kurnik, Knight Hoppe Kurnik & Knight Ltd., Rosemont, IL, Elizabeth A. Knight, Knight Hoppe Kurnik & Knight Ltd., Schererville, IN, for Defendants.

OPINION AND ORDER

PHILIP P. SIMON, Chief Judge.

View Outdoor Advertising wants to erect a billboard in the Town of Schererville, but has been blocked from doing so by a relatively new ordinance prohibiting all billboards. View claims this ordinance violates its free speech rights, that it did not receive proper due process regarding its request for a variance, and that the Defendants' decision to deny the variance was arbitrary and capricious. The Defendants are the Town of Schererville, its Board of Zoning Appeals, and a number of individuals, but for convenience sake I will refer to them collectively as “the Town.” The Town has moved for summary judgment on all three claims. Because the ordinance in question directly advances the Town's interests in aesthetics, and for other reasons discussed below, the Town's motion for summary judgment will be GRANTED–IN–PART. View's federal claims will be DISMISSED. But View's remaining state law claims will be REMANDED to the Lake Superior Court.

Background

In early 2011, View contracted with the owner of a parcel of land in Schererville to erect a billboard on the property. (DE 35, Ex. 1 at ¶ 8) That parcel is located near the very busy intersection of U.S. Route 41 and U.S. Highway 30. (Id. at ¶ 5) At the time of View's contract, the parcel contained two billboards owned by Lamar Advertising, but Lamar's billboard leases were set to expire soon. (Id. at ¶ 8) Once the leases expired, Lamar removed its billboards from the land and shortly thereafter, View applied for a building permit to erect a single, new billboard on the parcel. (Id. at ¶¶ 9, 11)

The Town denied View's application because the proposed billboard would be within 200 feet of two existing vacant buildings, which violated the Town's then-existing ordinance. (Id. at ¶ 12) In response, View had the buildings demolished, at a cost of approximately $21,900. (Id. at ¶ 14) After the demolition, instead of issuing the permit, the Town then informed View that the parcel's zoning prohibited any billboards from being built on the property. (Id. at ¶ 15) The parcel was zoned C–3 PUD, and billboards could be erected only on parcels zoned C–3 (but not C–3 PUD). (Id. ) The permit application was therefore again denied. (Id. )

Over the next year or so, View went through the process of getting the land rezoned to allow it to erect the billboard. (DE 36 at 3–4) Despite various delays by the Town, View was ultimately successful in getting the parcel rezoned. But it still needed a permit to erect the billboard. In February 2012, View applied for its building permit, but was then informed that a new ordinance had been passed prohibiting all new advertising billboards anywhere in the Town of Schererville. (DE 35, Ex. 1 at ¶ 26) Unbeknownst to View, that ordinance became effective on January 1, 2012. (Id. at ¶¶ 26–28) So the work that View did in attempting to erect the billboard—including demolishing two buildings at a substantial cost—was all for naught. The new ordinance superseded one that was enacted in the late 1980's. Under the prior ordinance, billboards were prohibited everywhere in the Town except in the Route 41/Route 30 corridor. Under the new ordinance, billboards are prohibited everywhere in town, but existing billboards—those erected under the earlier ordinance—may remain in place; they're grandfathered in.

The ordinance states that it is “intended to improve aesthetics and preserve the quality of life in the Town by eliminating signage that is incompatible within individual Zoning Districts.” (DE 28–1 at 43). According to the Town, there was overwhelming support from the public to ban billboards because they are unattractive and distracting. The new ordinance specifically prohibits “Billboards, outdoor advertising structures, and similar free standing signage.” (Id. at 47, ¶ O)

During the next year, View went through the process of appealing the denial of its permit. (DE 36 at 4–5) After receiving its final denial, View then filed a Petition for Variance of Use with the Schererville Board of Zoning Appeals (BZA). (Id. at 5) The next step in the process to obtain a variance is presenting evidence to the BZA, who then submits a recommendation to the Town Council on whether the variance should be granted. The BZA held a hearing on View's request. (Id. ) At the hearing, counsel for View presented evidence and argument, and engaged in an extensive back-and-forth discussion with the BZA. (See generally DE 35, Ex. 2 at 15–26) The history of View's difficulties with obtaining its needed zoning and permits was discussed at the hearing, and due to this long history, BZA Chairman William Jarvis suggested that the matter be continued for thirty days. (Id. at 21) Board member Robert Pharazyn disagreed that any additional time was needed and moved for an unfavorable recommendation to the Town Council. (Id. ) Before voting on the motion, the BZA discussed the fact that the Indiana Code lists five factors that a petitioner must meet in order to be granted a variance. (Id. at 21–22) Mr. Pharazyn based his motion on the fact that View's request was not in compliance with the comprehensive plan of the Town of Schererville—which is one of the five factors. (Id. at 22) Pharazyn's motion was brought to a vote of the BZA and passed unanimously. (Id. at 23)

From there, it was on to the Town Council. Normally, View had received notice of any public meetings or hearings regarding its various requests. (DE 35, Ex. 1 at 45) That appears to be the Town's general practice. This time, however, View did not receive any notice of the April 24, 2013 Town Council meeting—a fact the parties do not dispute. (Id. at ¶ 46; DE 28 at 5) The meeting therefore proceeded without View, and the BZA's recommendation to deny the variance was upheld without the Council hearing any additional argument or taking additional evidence. (DE 28 at 5)

About a month later, View filed this case in state court. In its initial filing, which View called a “Verified Petition for Judicial Review,” View sought relief from the state court under the provision of state law—in particular, I.C. § 36–7–4–1003 —that allows for judicial review of decisions of boards of zoning appeal. (DE 1) But because the Petition is also peppered with claims arising out of the United States Constitution, the Town timely removed the case to federal court. (DE 2)

In the meantime, View learned that the BZA approved a variance for Lamar Advertising Company—one of View's competitors—for a billboard blocks away from the real estate parcel where View's proposed billboard was contemplated. (DE 36 at 78) The Town claims that variance was granted because Lamar agreed to take down three billboards and maintain certain easements. (DE 39 at 2) Counsel for View attended Lamar's hearing before the BZA. (Id. )

View claims that the ordinance violates its First Amendment right to commercial speech by banning all billboards. View further claims that its due process rights were violated when it did not receive notice of the meeting before the Council. And finally, View Claims that the BZA and Council's actions were arbitrary and capricious. The Town now seeks summary judgment.

Discussion

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A genuine dispute about a material fact exists only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

First Amendment Claim (Count I)

View makes a First Amendment challenge to the constitutionality of Section 4(O ) of the Ordinance, which prohibits all “[b]illboards, outdoor advertising structures, and similar free standing signage.” (DE 28–1 at 47) According to View, this prohibition infringes its commercial free speech rights under the First Amendment.

Billboards are large, immobile structures generally subject to regulation. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 502, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981).¹ As such, the government has a legitimate interest in controlling the noncommunicative aspects of the medium. Id. Yet, because the regulations of the noncommunicative aspects of a billboard run the risk of impinging on the communicative aspects protected by the First Amendment, the government must balance that interest with First Amendment considerations. Id. As the parties point out, that means applying the four-part test set forth by the Supreme Court in Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), which was reiterated in Metromedia:

(1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it (2) seeks to implement a substantial governmental interest, (3) directly advances that interest, and (4) reaches no further than necessary to accomplish the given objective.

Metromedia, 453 U.S. at 507, 101 S.Ct. 2882. As this quote makes clear, these factors are used to evaluate commercial speech. The parties don't actually address whether the ordinance is geared towards

...