This post was authored by Sebastian Perez, J.D.
GEFT Outdoor (GEFT) wanted to construct two digital billboards on leased property in Fishers, Indiana. City of Fishers had sign standards billboards needed to meet under the Unified Development Ordinance (UDO) & Fishers Board of Zoning Appeals (BZA) denied GEFT’s request for a variance. GEFT then brought this action and filed a motion for a preliminary injunction.
Although GEFT had shown a likelihood of success on its arguments, the court believed they were not entitled to injunctive relief because the provisions of the UDO that were likely unconstitutional were severable from the rest of the UDO, which would still regulate GEFT’s proposed billboards. GEFT argued that two parts of the UDO violated the First Amendment because it regulated signs based on content—its definition of “sign” because it excluded religious symbols, and its section on “Post Signs” because it did not require a permit for qualifying “for sale” or “for lease” signs. Fishers countered that it was not content based because religious symbols were only excluded if accompanied by text. The court decided that both sections were content based by giving the example that GEFT could not display a “republican elephant” symbol without first meeting the UDO’s sign restrictions, but another group could have displayed a similarly sized religious symbol free from regulation. GEFT next contended that the requirement under the UDO—for a person placing a sign to first obtain an approved sign permit application—was an unconstitutional restraint on speech because it gave Fishers “unbridled discretion” to suppress speech before it occurred. Fishers responded that its permitting process was content neutral and limited to applying the UDO’s express provisions, so it was constitutional. The court decided that Fishers’ sign-permit requirement was a prior restraint on speech because it required a permit before a sign was put up. However, the court also noted that a system of prior restraint can avoid constitutional infirmity only if it took place under procedural safeguards designed to obviate the dangers of a censorship system. The extent of procedural protections required depended on whether the prior restraint was content based. If it was, then particular safeguards must generally be provided: (1) any restraint prior to judicial review could be imposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of that decision must be available and (3) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court. The court had already decided that the UDO’s “sign” definition was content based and found that Fishers failed to show that its ordinance provided the type of “expeditious judicial review” at which it would have bore the burden of proof and therefore decided that GEFT had shown a likelihood of success on its claim that Fisher’s sign-permitting schemed did not provide the required constitutional protections.
Lastly, GEFT argued that Fishers’ variance process was unconstitutional because it applied “broad, subjective, and amorphous” criteria that invited content-based discrimination. Fishers responded that entities denied variances could have pursued further review by a Board of Zoning Appeals, where appropriate safeguards would have been provided. The court found that because the variance scheme was part of the UDO’s permitting scheme, it was a prior restraint and to survive, it had to contain narrow, objective, and definite standards to guide the licensing authority. The court decided that the criteria laid out in the ordinance was vague enough that it gave a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers. The court decided that GEFT had therefore shown a likelihood of success on its claim that Fishers’ variance scheme was an unconstitutional prior restraint.
The court then analyzed whether the remainder of the UDO could have been given legal effect even if the challenged portions were severed. That would have left a standard “sign” definition that didn’t make any of the UDO’s other provisions unworkable. The same was true of Fishers’ permitting scheme. Without the severed potion, Fishers would simply have to enforce its sign standards after a sign had been erected through an ordinance enforcement procedure. It was also noted that the only effect after removal of Fishers’ variance scheme be that no variances and no discretion would be permitted—the UDO’s standards could not have been relaxed. An intent of the legislative body through UDO’s severability provision also made it clear there was a presumption that Fishers intended the remainder of UDO to stay in effect. As a result, GEFT’s proposed billboards failed to meet the unsevered portions of UDO, such as the maximum area and height limitations.
The court held that although GEFT had shown a likelihood of success on its claims that the UDO included some content-based provisions and that its permitting and variance schemes were unconstitutional prior restraints, GEFT had not shown it was entitled to a broad preliminary injunction that would have allowed GEFT to put up its proposed signs subject to no regulation. Therefore, the court concluded that GEFT’s motion for a preliminary injunction was denied.
Geft Outdoor, LLC v City of Fishers, IN, 2022 WL 3279934 (SD IN 8/11/2022)
LAW OF THE LAND 
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