                                                                         FILED
                                                                 Aug 16 2019, 8:50 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Daniyal M. Habib                                           Jeffrey M. Bellamy
Indianapolis, Indiana                                      Stephen R. Donham
                                                           Thrasher Buschmann &
                                                           Voelkel, P.C.
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Metropolitan Development                                   August 16, 2019
Commission,                                                Court of Appeals Case No.
Appellant-Plaintiff,                                       19A-OV-212
                                                           Appeal from the Marion Superior
        v.                                                 Court
                                                           The Honorable Cynthia J. Ayers,
Worth Outdoor, LLC,                                        Judge
Appellee-Defendant                                         Trial Court Cause No.
                                                           49D04-1708-OV-30316



Baker, Judge.




Court of Appeals of Indiana | Opinion 19A-OV-212 | August 16, 2019                           Page 1 of 9
[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.


                                                      Facts
[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

      Court of Appeals of Indiana | Opinion 19A-OV-212 | August 16, 2019            Page 2 of 9
      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


      Court of Appeals of Indiana | Opinion 19A-OV-212 | August 16, 2019         Page 3 of 9
      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 on October 23, 2018. The

      MDC now appeals.




      1
       The GEFT Court also considered an amended version of Chapter 734 and found that the amended version
      passed constitutional muster. Id. at 1007. That amendment, however, was passed on November 30, 2015,
      meaning that it does not affect the course of events in this appeal.

      Court of Appeals of Indiana | Opinion 19A-OV-212 | August 16, 2019                         Page 4 of 9
                                     Discussion and Decision
[10]   Our standard of review on summary judgment is well established:


               We review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of . . . the non-moving parties, summary judgment is
               appropriate ‘if the designated evidentiary matter shows that there
               is no genuine issue as to any material fact and that the moving
               party is entitled to judgment as a matter of law.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
               fact is ‘material’ if its resolution would affect the outcome of the
               case, and an issue is ‘genuine’ if a trier of fact is required to
               resolve the parties’ differing accounts of the truth, or if the
               undisputed material facts support conflicting reasonable
               inferences.” Id. (internal citations omitted).


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


[11]   It is undisputed that Worth’s digital billboard does not comply with current

       provisions of the Revised City-County Code. Worth argues, however, that its

       billboard constitutes a legally established nonconforming use and should be

       permitted to remain. In layman’s terms, Worth argues that its billboard should

       be grandfathered into the current code. To be a legally established

       nonconforming use, the construction, enlargement, extension, reconstruction,

       or relocation “must have been done in conformity with the Zoning Ordinance

       in place at the time and have been done for uses permitted at the time.” Rev.

       Code § 740-601(B)(2); see also Metro. Dev. Comm’n of Marion Cty. v. Pinnacle

       Media, LLC, 836 N.E.2d 422, 425 (Ind. 2005) (holding that “a nonconforming

       use is a use of property that lawfully existed prior to the enactment of a zoning

       Court of Appeals of Indiana | Opinion 19A-OV-212 | August 16, 2019         Page 5 of 9
       ordinance that continues after the ordinance’s effective date even though it does

       not comply with the ordinance’s restrictions”).


[12]   At the time Worth sought permission for and installed its digital billboard, two

       relevant ordinances were in effect. One—Chapter 734—was found

       unconstitutional and void by GEFT. The other—Chapter 730—was not

       affected by the GEFT decision. Worth argues that GEFT implicitly voided “any

       applicable zoning ordinance for signs in Marion County,” including Chapter

       730 along with 734. Appellee’s Br. p. 30. We disagree, as the GEFT Court

       quite explicitly addressed only Chapter 734. 187 F. Supp. 3d at 1005 (defining

       Chapter 734 as “the Sign Ordinance), and 1015 (holding that the “Sign

       Ordinance violates the First Amendment”). Inasmuch as we endeavor to

       narrowly construe holdings finding constitutional violations, we decline to

       extend GEFT beyond its explicit holding.


[13]   Chapter 730 stated, in relevant part, as follows:


               No structure shall be located, erected, altered or repaired upon any
               land within Marion County, Indiana, until an [ILP] has been
               applied for by the owner (or authorized agent) thereof and issued
               by the [MDC].


       Rev. Code § 730-300(b)(1) (1998) (emphasis added). The term “structure” was

       defined as follows:


               . . . a “structure,” for which an [ILP] shall be required, shall
               include any building, sign, or other structure, constructed or
               erected, the use of which requires a more or less specific location

       Court of Appeals of Indiana | Opinion 19A-OV-212 | August 16, 2019             Page 6 of 9
                upon the ground, whether permanently affixed to the ground,
                temporary or mobile.


       Rev. Code § 730-307(b) (1998) (emphasis added). Additionally, a “‘structure’

       includes any part thereof.” Id. at -307(a)(5).


[14]   Here, Worth’s billboard is a sign that requires a specific location upon, and is

       permanently affixed to, the ground. In other words, it is a “structure” within

       the meaning of former Section 730-300(b)(1).2 Worth sought to convert its

       billboard from a static display to a digital sign. Reasonable people could

       dispute whether this process was a new sign being erected or an old sign being

       altered, but either way, former Section 730-300(b)(1) plainly requires that the

       owner apply for, and receive, an ILP. The language is clear and unambiguous,

       and would have applied even if the new, bigger, heavier billboard installed by

       Worth was another static, non-digital display.3




       2
        Worth argues that this ordinance governs only where the billboard pole is located rather than the structure
       affixed to the top of the pole. This argument has no support in the plain language of the ordinance, which
       explicitly states that a “structure” includes a “sign” and that a “structure” includes any part thereof.
       Similarly, Worth argues that because the City did not argue below that Worth’s “pole structure” did not
       comply with relevant ordinances, it may not raise that argument here. Appellee’s Br. p. 21 (arguing that the
       City is now litigating a “pole case” along with its “sign case”). Worth obfuscates the City’s argument, which
       is, and always has been, that the sign itself required an ILP at the time it was altered. This is not a new
       argument requiring different evidence or development of a different record, it is simply a legal argument
       based in the plain language of relevant ordinances.
       3
        We agree with the MDC that there are good reasons for requiring the ILP. In this specific case, the ILP
       process would have enabled the City to ensure that the new billboard was safe, answering questions such as,
       “[i]s the pole constructed to hold a static vinyl face structurally sound enough to hold a massive, heavy 378-
       square-foot digital display? Did Worth do proper engineering to determine things like increased wind loads
       on the larger display? We simply don’t know[.]” Appellant’s Br. p. 21 n.3.

       Court of Appeals of Indiana | Opinion 19A-OV-212 | August 16, 2019                                  Page 7 of 9
[15]   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. 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. See Ind. Code § 36-7-4-1109(c) (giving statutory vested rights to a

       person who filed a complete application as required by the effective ordinances

       of a local government agency).4


[16]   With respect to GEFT and former Chapter 734, the City argues that the opinion

       does not bind this Court. Whether or not it binds us, we see no reason to

       question or disturb a holding of a sister court and would choose to abide by it.

       But we need not even reach GEFT because we find, under former Chapter 730,

       that Worth has failed to show that its new billboard constitutes a legally

       established nonconforming use.


[17]   Because Worth has not showed that its billboard constitutes a legally

       established nonconforming use, the billboard is subject to the current

       ordinances. Summary judgment should not have been granted in its favor.




       4
        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.

       Court of Appeals of Indiana | Opinion 19A-OV-212 | August 16, 2019                            Page 8 of 9
[18]   The judgment of the trial court is reversed and remanded for trial.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 19A-OV-212 | August 16, 2019    Page 9 of 9
