Dave Stafford for www.theindianalawyer.com
A judgment in favor a sign company that converted a large billboard in Lawrence to a digital display was reversed on appeal Friday. The Indiana Court of Appeals remanded a lawsuit brought by the city of Indianapolis, setting the stage for a possible trial over whether the digital billboard may remain.
At issue in Metropolitan Development Commission v. Worth Outdoor LLC, 19A-OV-212, is a two-sided billboard towering over the Oaklandon Commons shopping center at 11915 Pendleton Pike, just northeast of Oaklandon Road. In 2015, sign owner Worth Outdoor converted the northeast-facing half of the sign to a digital display. Since then, Indianapolis ordinances governing digital billboards in the Revised City-County Code were amended, largely banning them. Separately, the city reached a federal court settlement with another billboard company, GEFT, allowing two digital displays to remain in GEFT Outdoor LLC v. Consol. City of Indianapolis & Cty. of Marion, Indiana, 187 F. Supp. 3d 1002 (S.D. Ind. 2016)
But in the case of Worth’s sign on Pendleton Pike, the city persuaded the appellate court to overturn summary judgment for Worth granted by Marion Superior Judge Cynthia Ayers.
“…Worth argues that its sign should be grandfathered in as a legally established nonconforming use,” Judge John Baker wrote for the appeals panel. “…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.”
Baker wrote that the static billboard was originally built in 2009, and while Worth received permission for the digital conversion from the Indiana Department of Transportation and permits from the city of Lawrence, “Worth’s designated evidence does not show that it sought an Improvement Location Permit (ILP) from the (Metropolitan Development Commission) to alter the billboard.”
Because of this, the court held that neither the city’s amended ordinances nor the federal court settlement in GEFT provide cover for Worth. The panel found dispositive that the relevant ordinances at the time of the billboard’s conversion required a permit from the MDC for construction or alteration of a billboard.
“There is no evidence in the record that Worth ever applied for an ILP at the time it sought permission for, and completed, installation of the new billboard. As such, this process did not comply with the ordinances in place at the time and cannot be a legally established nonconforming use,” Baker wrote. “Similarly, because the digital billboard never lawfully existed and its permit application process was incomplete, Worth cannot make a successful claim that it has vested rights in that billboard.”
Likewise, the panel observed in a footnote, “Nor can Worth argue that it acted in good faith by relying on GEFT. GEFT was decided six months after Worth completed construction and installation of the digital billboard.”