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