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Metropolitan Development Commission v. Worth Outdoor, LLC

Court of Appeals of Indiana

August 16, 2019

Metropolitan Development Commission, Appellant-Plaintiff,
Worth Outdoor, LLC, Appellee-Defendant

          Appeal from the Marion Superior Court Trial Court Cause No. 49D04-1708-OV-30316 The Honorable Cynthia J. Ayers, Judge.

          Attorney for Appellant Daniyal M. Habib Indianapolis, Indiana

          Attorneys for Appellee Jeffrey M. Bellamy Stephen R. Donham Thrasher Buschmann & Voelkel, P.C. Indianapolis, Indiana

          Baker, Judge.

         [¶1] Worth Outdoor, LLC (Worth), altered an existing billboard in 2015 by replacing a static sign with a digital display. Since that time, the relevant ordinances contained in the Revised City-County Code have been amended. The billboard does not comply with the amended ordinances. But Worth argues that its sign should be grandfathered in as a legally established nonconforming use.

         [¶2] The Indianapolis Metropolitan Development Commission (the MDC) appeals the trial court's order granting summary judgment in favor of Worth on the MDC's complaint for injunctive relief and fines. Finding that the billboard is not a legally established nonconforming use because it did not comply with all ordinances in effect at the time of construction, we reverse and remand for trial.


         [¶3] In 2004, Worth acquired the right to locate a static billboard sign on Pendleton Pike in Lawrence via an Access, Sign, and Utility Easement that was later recorded in 2009. In March 2009, Worth applied for and received a Sign Permit for an Advertising Sign from the MDC. Worth also sought, and received, a building permit from Lawrence in March 2009, and constructed the billboard later that year. Both sides of the billboard were static, printed displays.

         [¶4] In 2013, Worth decided to convert the northeast facing side of the billboard to a digital, animated LED sign. Worth sought (and received) permission from the Indiana Department of Transportation (INDOT) to convert the static billboard to a digital LED sign. Worth also received permits from the City of Lawrence. Worth's designated evidence does not show that it sought an Improvement Location Permit (ILP) from the MDC to alter the billboard.

         [¶5] In October 2015, Worth replaced the static display side of the billboard with a digital display. A significant amount of work was required to build the new, heavy, 378-square-foot sign and prepare it for installation. After the digital sign was built and prepared for installation, the old billboard was removed and lowered, the new sign was erected using heavy cranes and welded to the existing pole, the digital LED sign was affixed to the sign support, and the electrical work was completed. The digital sign face was installed and operational by November 2015.

         [¶6] From the time Worth began its efforts to convert its billboard to a digital display in 2013 until the time the digital installation was complete in early November 2015, the following zoning ordinances in the City-County Code were in effect: (1) Chapter 730-300, which required landowners to obtain an ILP before constructing or altering any structure in Marion County; and (2) Chapter 734, which contained two relevant provisions: a second ILP requirement and a ban on digital or animated signs in C-3 districts.

         [¶7] Contemporaneously, litigation regarding the constitutionality of Chapter 734 was ongoing in the Southern District of Indiana. GEFT Outdoor LLC v. Consol. City of Indianapolis & Cty. of Marion, Indiana, 187 F.Supp.3d 1002 (S.D. Ind. 2016). On May 20, 2016, the GEFT Court issued an opinion holding that Chapter 734, in its entirety, violated the First Amendment to the United States Constitution. Id. at 1006-07.[1] The GEFT Court explicitly invalidated the entire ordinance included in Chapter 734. Id. at 1015. Subsequently, GEFT and the City of Indianapolis entered into a stipulated final judgment, pursuant to which the City and its agencies agreed that the entire former Chapter 734 was unconstitutional and that they would not contest that ruling. Appellees' App. Vol. II p. 56-66.

         [¶8] On August 4, 2017, the MDC filed a lawsuit against Worth, claiming that Worth had violated portions of the City-County Code by operating an unpermitted billboard sign and failing to obtain an ILP before altering the billboard. The MDC sought injunctive relief and fines totaling $40, 000. The complaint did not allege that there were any violations with respect to the pole structure and foundation supporting the billboard; instead it focused solely on the display. Worth responded by arguing that because GEFT had found the sign ordinance unconstitutional and void, there was no valid requirement that it obtain an ILP before installing the digital sign.

         [¶9] On August 20, 2018, Worth moved for summary judgment. The trial court granted the motion and entered summary judgment ...

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