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Shaw v. City of Bedford

United States District Court, S.D. Indiana, New Albany Division

July 6, 2017

SAMUEL SHAW, Plaintiff,
v.
CITY OF BEDFORD, INDIANA, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

          SARAH EVANS BARKER, JUDGE

         This cause is before the Court on Plaintiff's Motion for Preliminary Injunction [Docket No. 8], filed on November 3, 2016. Plaintiff Samuel Shaw seeks to have Defendant, the City of Bedford, Indiana (“the City”), enjoined from enforcing Sections II(III)(A)(2)(a), II(III)(A)(3), II(III)(A)(4), II(III)(A)(5), and II(III)(A)(6) of City Ordinance 34-2016 (“the Sign Ordinance”), [1] alleging that these provisions on their face violate the First Amendment to the United States Constitution. The Court conducted a hearing on May 17, 2017 at which both parties presented oral argument and submitted exhibits and the City presented witness testimony. Having considered the witness testimony, counsel's arguments, and the parties' written submissions and evidence, we hereby DENY Plaintiff's motion for preliminary injunctive relief.

         Factual Background

         The provisions of the City's Sign Ordinance that are the subject of this litigation govern the manner in which signs may be displayed on residential property. Plaintiff challenges the Sign Ordinance's classification and regulation of the following three types of residential signs: (1) flags; (2) temporary signs; and (3) permanent signs. Section I of the Sign Ordinance defines a flag as “[a] sign made of fabric, bunting, or similar material, attached along one side to a single pole that is either freestanding or attached to a building.” Permanent signs are defined by the ordinance as signs that are “permanently attached to the ground.” A temporary sign is a sign that “is not permanently attached to the ground.”

         Each of these three sign types is regulated differently under the Sign Ordinance. In this litigation, Plaintiff challenges the Sign Ordinance's individual and cumulative square footage limits for each sign type, the height and setback requirements for residential signs set forth in the ordinance, and the ordinance's prohibition of permanent signs in residential districts, except for residential developments. Specifically, the Sign Ordinance restricts flags displayed at an individual residence to a combined surface area of 60 square feet, with a limit of 15 square feet per flag, while temporary signs are restricted to a combined surface area of 36 feet, with a limit of 6 square feet per sign. The Sign Ordinance prohibits permanent signs in residential districts, except at entrances to residential developments. The allowable square footage of such permanent signs varies depending on the size of the residential development. For example, residential developments that are four acres or less are permitted to have permanent signs with a total combined square footage of no more than 32 square feet; developments between four and forty acres in area are permitted up to 48 square feet of signage; and developments of forty acres or more are allowed signs of a total square footage of up to 102 square feet. Finally, the Sign Ordinance provides that, if “ground-mounted, ” (which the ordinance defines as any sign that “extends from the ground, or has support which places the bottom of the sign less than two (2) feet from the ground”), the top of the sign cannot exceed 4 feet above the ground and must be located at least 10 feet away from any City right-of-way.

         The preamble to the Sign Ordinance explains, in relevant part, the City's stated reasons for its sign regulations, including its desire to:

Maintain high quality districts of all land uses, and attractive public and private facilities of all types … to eliminate any conflict between traffic control signs and other signs which would be hazardous to the safety of the motoring public or pedestrians; and to control the design and size of all signs so that their appearance will be aesthetically harmonious with an overall urban design for the area, in accordance with commonly accepted community planning and design practices, and the City's Comprehensive Plan.

         See City Ordinance 34-2016, Second “Whereas” Claus.

         Plaintiff owns property in a residential district in Bedford. He has for a number of years placed various signs on his property expressing his political and ideological views. Mr. Shaw's signs have a signature style, to wit, they typically are made of a sheet of wood paneling that is painted white, bearing handwritten lettering in red paint. In September 2016, when Mr. Shaw last had his full complement of signs displayed on his property, he had approximately twelve signs of various heights and sizes ranging from four (4) square feet to thirty-two (32) square feet. Mr. Shaw removed all non-conforming signs from his property on September 23, 2016, in response to a letter from the City informing him that he was not in compliance with the City's residential sign regulations and was subject to a $300.00 per day fine.

         On October 31, 2016, Mr. Shaw filed his Complaint in this action alleging that the City's sign ordinance then in effect contained content-based restrictions that violated the First Amendment. Since that time, the City's two rounds of amendments to its ordinance have narrowed Mr. Shaw's lawsuit to the current First Amendment challenge to the City's content-neutral time, place, and manner restrictions on residential signs.

         Legal Analysis

         I. Standard of Review

         To obtain a preliminary injunction, the moving party must demonstrate: (1) a reasonable likelihood of success on the merits; (2) no adequate remedy at law; and (3) irreparable harm absent the injunction. Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Dept. of Health, 699 F.3d 962, 972 (7th Cir. 2012). If the moving party fails to demonstrate any one of these three threshold requirements, the injunctive relief must be denied. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the United States, Inc., 549 F.3d 1079, 1086 (7th Cir. 2008) (citing Abbot Labs. v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992)). However, if these threshold conditions are met, the Court must then assess the balance of the harm - the harm to Plaintiffs if the injunction is not issued against the harm to Defendants if it is issued - and determine the effect of an injunction on the public interest. Id. “The more likely it is that [the moving party] will win its case on the merits, the less the balance of harms need weigh in its favor.” Id. at 1100.

         II. ...


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