Geft Outdoor, L.L.C. v. City of Evansville

650 F.Supp.3d 660

GEFT OUTDOOR, L.L.C., Plaintiff, v. CITY OF EVANSVILLE, Defendant.

No. 3:19-cv-00141-JRS-MPB

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

Signed January 12, 2023

A. Richard M. Blaiklock, Charles R. Whybrew, Lewis Wagner, LLP, Indianapolis, IN, for Plaintiff.

Dirck H. Stahl, Ziemer Stayman Weitzel & Shoulders, Evansville, IN, Laura Katherine Boren, Stoll Keenon Ogden PLLC, Evansville, IN, for Defendant.

Entry on Amended Motions for Summary Judgment

JAMES R. SWEENEY II, JUDGE

GEFT Outdoor L.L.C. ("GEFT"), an outdoor sign advertiser, challenges the Zoning Ordinance (the "Ordinance") of the City of Evansville (the "City"), Indiana. GEFT intended to erect a digital billboard on property in Evansville and sought a variance from the Ordinance governing signs in order to do so. The Board of Zoning Appeals (the "Board") denied GEFT variances. GEFT sued alleging that the Ordinance violates the First Amendment as incorporated against the states under the Fourteenth Amendment. GEFT claims that the Ordinance is unconstitutional on its face because it contains content-based regulations and that the permitting and variance procedures for signs are unconstitutional prior restraints on GEFT's free speech rights.

The Court previously granted GEFT partial summary judgment. The Court decided that the Sign Standards in the Ordinance were an unconstitutional content-based restriction on speech and that the Sign Standards' permitting and the variance processes as applied to signs were an unconstitutional prior restraint on speech. A permanent injunction was entered declaring Chapter 18.140 of the Ordinance unconstitutional in its entirety and the City was enjoined from enforcing that Chapter. The City appealed, and the case was stayed pending the appeal. Following the Supreme Court's decision in City of Austin v. Reagan National Advertising of Austin, LLC, 596 U.S. 61, 142 S. Ct. 1464, 212 L.Ed.2d 418 (2022), the Seventh Circuit vacated this Court's judgment except for the terms of the permanent injunction and remanded for reconsideration in light of City of Austin.

The parties have filed amended motions for summary judgment, and the City has moved to vacate the permanent injunction. The Court has reconsidered its judgment and decides as follows.

I. Background

Outdoor signs in the City must comply with the City's sign ordinance ("Sign Standards"), which limits the size and location of signs. GEFT buys or leases land upon which to construct, maintain, and/or operate signs to be used for the dissemination of both commercial and noncommercial speech. (Aff. of Jeffrey Lee, ¶ 3, ECF No. 95-1.) The owner of real property in the City on Oak Grove Road, which property is adjacent to I-69, a major thoroughfare, leased a portion of that property to GEFT. (Id. ¶ 4.) GEFT intended to erect a digital billboard displaying both commercial and noncommercial speech on the property. (Id. ¶¶ 5, 7.) GEFT sought variances from the requirements for height of off-premises signs, spacing between off-premises signs, and placement of off-premises signs on certain subdivision plats. (Lee Aff. ¶ 11, ECF No. 95-1; Compl., Ex. A, ECF No. 59-1; see also VAR-2019-033, Doc. 43-1 at 6.) GEFT sought relaxation of the spacing requirements due to a pipeline running through part of the property and sought relaxation of the height requirement because of an overpass on a nearby highway, which limited the line of sight of northbound travelers. (ECF No. 43-1 at 16.)

The Sign Standards require a permit for many signs: "Except as otherwise provided for in this chapter, it shall be unlawful for any person to erect, construct, enlarge or move any sign, or cause the same to be done without first obtaining an improvement location permit (also known as a 'sign permit') issued by the Planning Department." Ord., Ch. 18.140.020(B)(1). The Sign Standards exempt certain signs from the permit requirement, including "public signs," "political signs," and "construction signs" (the "Exemptions"). Ord., Ch. 18.140.030(C), (D). An exempt sign must still comply with the other Sign Standards such as height, size, and spacing limitations. Ord., Ch. 18.140.030(A). A sign permit application does not ask the applicant about the content of the proposed sign. (See Off-Premises Sign Permit Application, ECF No. 166-1; On-Premises Sign Permit Application, ECF No. 166-2.)

An applicant desiring a variance from the Sign Standards can petition the Board for a variance. Ord., Ch. 18.165.010(A). The Board decides whether to grant petitions for variances from the Sign Standards. Ord., Ch. 18.165.010(B). The Board may not approve a variance unless it finds in writing that:

(1) The approval will not be injurious to the public health, safety, morals, and general welfare of the community.

(2) The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner.

(3) The strict application of the terms of this title will result in practical difficulties in the use of the property.

(4) The variance is not a variance of the use of the property.

(5) The petitioner's property is not located in a planned unit development.

(6) The need for the variance is not created by the applicant.

Ord., Ch. 18.165.010(B); see also Ind. Code § 36-7-4-918.5(a). In granting a variance, the Board may impose "whatever conditions or limitations are necessary to protect adjacent properties and the surrounding neighborhood and effectuate the purposes of [the Ordinance]." Ord., Ch. 18.165.010(D).

The Board held a hearing on GEFT's variance petition at which several remonstrators appeared and argued against the variance request. The Board denied the variance petition upon finding that the variance failed to satisfy all the factors identified in Chapter 18.165.010. (Board Record, at 43-45, ECF No. 43-1; Lee Aff. ¶ 12, ECF No. 95-1.) The Board issued detailed findings regarding the denial. (Board Record 134-45, ECF No. 43-1.) GEFT's lease required it to erect a digital billboard within one year of the effective date of the lease; the lease was terminated as a result of the denial of the variances. (Lee Aff. ¶¶ 13-15, ECF No. 95-1.)

GEFT sued the City, alleging that the Ordinance constitutes an unlawful content-based regulation and an unlawful prior restraint in violation of the First Amendment. The parties' cross-motions for summary judgment are before the Court for ruling.

II. Discussion

A. Legal Standard

Summary judgment is appropriate if the moving party shows there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). When deciding cross-motions for summary judgment, the court reviews the evidence and draws all reasonable inferences "in favor of the party against whom the motion under consideration is made." Dunnet Bay Constr. Co. v. Borggren, 799 F.3d 676, 688 (7th Cir. 2015).

B. Standing

GEFT argues that the Ordinance violates the First Amendment in two ways: (1) the Ordinance is an improper content-based regulation, and (2) the Ordinance amounts to a prior restraint that vests unbridled discretion in the government officials making permit and variance decisions and lacks procedural safeguards.

The Court first considers GEFT's standing because that is jurisdictional. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ("[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III."). Standing contains three elements: (1) an injury in fact, (2) fairly traceable to the defendant's challenged conduct, and (3) likely to be redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, 578 U.S. 330, 338, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) (citations omitted).

GEFT brings a facial First Amendment challenge to the City's Ordinance. Such challenges lie where a statute "substantially suppresses otherwise protected speech vis-à-vis its plainly legitimate sweep." Bell v. Keating, 697 F.3d 445, 456 (7th Cir. 2012) (cleaned up). "Facial challenges to overly broad statutes are allowed not primarily for the benefit of the litigant, but for the benefit of society—to prevent the statute from chilling the First Amendment rights of other parties not before the court." Secretary of State of Md. v. Munson, 467 U.S. 947, 958, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984).

Still, a plaintiff must have standing to facially attack a statute. Harp Advert. Ill., Inc. v. Village of Chi. Ridge, 9 F.3d 1290, 1291 (7th Cir. 1993). In Harp Advertising, the plaintiff brought a facial challenge to a sign ordinance on First Amendment grounds but failed to challenge size restrictions that would have independently blocked the plaintiff's large sign from being built. Id. at 1291-92. The Seventh Circuit wrote, "[a]n injunction against the portions of the sign and zoning codes that [the plaintiff] has challenged would not let it erect the proposed sign[.]" Id. at 1292. Therefore, the claims failed the redressability prong of standing. Id.

Likewise, in Leibundguth Storage & Van Service, Inc. v. Village of Downers Grove, 939 F.3d 859 (7th Cir. 2019), the plaintiff brought as-applied and facial challenges to a municipality's sign ordinance, claiming that the ordinance was a content-based regulation of speech. Id. at 860. But the plaintiff failed to show that the physical standards its sign violated were impermissible time, place, and manner restrictions. Id. at 862. The Seventh Circuit held that the plaintiff failed to establish that success in the suit would redress the non-compliance of its sign. Id. Although its opinion did not speak in terms of standing, the court wrote, "Leibundguth's problems come from the ordinance's size and surface limits, not from any content distinctions." Id. at 861.

Several courts applying Harp have found that severability of an ordinance is properly addressed during the...