EVANSVILLE — A portion of Evansville’s zoning code has been ruled to violate the First Amendment by a judge in the Indiana Southern District Court.
GEFT Outdoor LLC, an outdoor advertising company, filed suit against the City of Evansville in 2019 after it was denied a variance to install a digital billboard on Oak Grove Road.
The company requested relaxation of the minimum spacing distance between billboards; the maximum height of the sign; and the code that states placement of the billboard on any subdivision plat with less than 10 lots cannot occur until work has started on a least half.
Count I of the suit alleges the exemptions of the sign standards violate free speech clauses; Count II alleges the ordinance contains unconstitutional prior restraints; Count III petitions for a review of the BZA’s decision. The company is also seeking financial compensation, including attorney fees.
U.S. District Judge James R. Sweeney II granted GEFT’s request for summary judgement on Counts I and II last week. The judge has requested a meeting with the parties to discuss Count III, which neither requested summary judgement for, as well as GEFT’s damages.
The variance request was unanimously denied by the Board of Zoning Appeals after hearing testimony from GEFT representatives and remonstrators at its June 20, 2019, meeting.
At the meeting, GEFT attorney Chuck Whybrew said the request should be approved and the standards which the BZA was basing its decisions on were subjective, and would violate the company’s First Amendment rights.
“It’s hard for us to even come before you because we don’t know what injurious to public health means, or all those other subjective issues contained with that variance proceeding,” Whybrew told the board.
Following Whybrew’s comments, BZA member Becky Kasha asked about the board’s responsibility on determining constitutional questions.
“That seems a little beyond our realm,” she said. “... Unless I’m missing something, I don’t know I’m supposed to make a decision on a constitutional argument."
Board attorney Dirck Stahl replied: “I think Mr. Whybrew is simply advising you he’s going to sue you if you vote against him."
The suit was filed July 22, 2019, about a month after the board meeting.
“The sign standards are an unconstitutional content-based restriction on speech,” Sweeney wrote in his filing. “The sign standards permitting process and the variance process as applied to signs lack any procedural safeguards or adequate standards to guide the City’s decisions and are an unconstitutional prior restraint on speech.”
Sweeney also instructed Evansville to not enforce the sign standards against GEFT or anyone else.
In a statement to the Courier & Press, Lewis Wagner, LLP attorney Richard M. Blaiklock said GEFT is pleased with the ruling.
"The ruling recognizes the importance of First Amendment rights in our country," Blaiklock wrote. "GEFT looks forward to seeking the full measure of its damages at the trial in February, which includes its reasonable attorney fees and costs."
Stahl had not returned a request for comment from the Courier & Press by publication time.