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Geft Outdoor L.L.C. v. Consolidated City of Indianapolis and County of Marion

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

January 10, 2017

GEFT OUTDOOR, L.L.C. Plaintiff
v.
CONSOLIDATED CITY OF INDIANAPOLIS AND COUNTY OF MARION, INDIANA, DEPARTMENT OF METROPOLITAN DEVELOPMENT, DEPARTMENT OF CODE ENFORCEMENT, AND METROPOLITAN BOARD OF ZONING APPEALS, DIVISION 1, Defendants.

          A. RICHARD M. BLAIKLOCK, #20031-49 CHARLES R. WHYBREW, #21148-49 Counsel for GEFT Outdoor, L.L.C. LEWIS WAGNER, LLP Donald Morgan, No. 30776-49 Daniel Bowman, No. 31691-49 Office of Corporation Counsel City of Indianapolis Counsel for Defendants

          STIPULATED FINAL JUDGMENT AND ORDER FOR PERMANENT INJUNCTION

          SARAH EVANS BARKER, JUDGE

         Plaintiff, GEFT OUTDOOR, L.L.C. (“GEFT”) filed its Second Amended Complaint for Damages, Declaratory Relief, and Permanent Injunction, and Petition for Judicial Review (“Complaint”) against Defendants Consolidated City of Indianapolis and County of Marion, Indiana; the Department of Metropolitan Development, Department of Code Enforcement, and Metropolitan Board of Zoning Appeals, Division 1 (collectively, the “City”), pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201 (“Lawsuit”). GEFT and the City stipulate to entry of this Stipulated Final Judgment and Order for Permanent Injunction to resolve all matters in dispute in this Lawsuit and to avoid the uncertainty and expense of further litigation.

         NOW THEREFORE, GEFT and the City, having requested the Court to enter this Order, and the Court having considered the agreements reached by the parties as set forth in this Order, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED as follows:

         FINDINGS

         1. GEFT is a domestic limited liability company organized and existing under the laws of the State of Indiana and has a principal place of business in the City of Indianapolis, Marion County, State of Indiana.

         2. The City is a consolidated city, organized and existing under the laws of and within the State of Indiana, and is authorized to sue and be sued.

         3. GEFT is in the business of buying or leasing land upon which to construct, maintain, and/or operate signs.

         4. GEFT holds a valid leasehold interest in a sign located at 700 West Morris Street, Indianapolis, Indiana 46225, also known as Local Parcel # 1090263 (“South Sign”). The South Sign is governed by variance petition 97-V2-49, granted by the Board of Zoning Appeals (“BZA”) on June 10, 1997 ("South Variance"). GEFT desires to display on-premises signs, off-premises commercial signs, and noncommercial opinion signs on the South Sign but has been prevented from doing so by the City's enforcement of the South Variance and/or the Old Sign Ordinance.[1]

         5. GEFT holds a valid leasehold interest in real property located at 4305 West Morris Street, Indianapolis, Indiana 46241, also known as Local Parcel # 9042890, also known as State Parcel # 49-11-17-111-021.000-900 (“West Property”). GEFT owns, maintains, and operates a properly permitted outdoor advertising sign upon its leasehold interest in the West Property (“West Sign”).

         6. GEFT holds a valid leasehold interest in real property located at 5780 East 25thStreet, Indianapolis, Indiana 46218, also known as Local Parcel # 7005589, also known as State Parcel # 49-07-27-123-031.000-701 (“East Property”). GEFT owns, maintains, and operates an outdoor advertising sign upon its leasehold interest in the East Property (“East Sign, ” and together with the West Sign, the “GEFT East/West Signs”).

         7. GEFT desires to display digital content on the GEFT East/West Signs, but was prevented from doing so based, in part, on the City's enforcement of the Old Sign Ordinance.

         8. GEFT possesses valid state permits for digital advertising on the GEFT East/West Signs.

         9. On July 28, 2015, GEFT filed petition 2015-DV1-048 for a variance, under the Old Sign Ordinance, of development standards with the City, seeking permission to install an LED component and display digital content on the West Sign (“West Variance”).

         10. Also on July 28, 2015, GEFT filed petition 2015-DV1-047 for a variance, under the Old Sign Ordinance, of development standards with the City, seeking permission to install an LED component and display digital content on the East Sign (“East Variance”) (The West Variance and East Variance shall be collectively referred to as, the “Variances”).

         11. On November 5, 2015, the City denied the Variances, and on December 1, 2015, the City issued findings in support of the denial of the Variances. The City's denial of the Variances was based on the provisions of the Old Sign Ordinance.

         12. GEFT commenced this action pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201 seeking injunctive relief, declaratory relief, compensatory damages, as well as costs and attorneys' fees, alleging that the Old Sign Ordinance and New Sign Ordinance were unconstitutional, both facially and as applied to GEFT. GEFT also appealed the denial of the Variances, pursuant to Ind. Code § 36-7-4-1600, et seq.

         13. The Court has subject matter jurisdiction over Plaintiff's claims pursuant to 28 U.S.C. §§1331, 1343(a)(3), and 1367, the First Amendment and Fourteenth Amendment of the United States Constitution, ...


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