U.S. Outdoor Advertising Co. v. Indiana Department of Transportation
Docket: No. 49A02-9803-CV-276
Court: Indiana Court of Appeals; August 20, 1999; Indiana; State Appellate Court
U.S. Outdoor Advertising Company, Inc. appeals the trial court's affirmation of the Indiana Department of Transportation's (INDOT) denial of two outdoor advertising sign permit applications. The case is remanded for further factual findings. U.S. Outdoor raises six issues, condensed into five primary concerns: 1) the correctness of INDOT's denial of the permit applications; 2) whether INDOT should be equitably estopped from denying the applications; 3) potential violations of U.S. Outdoor’s due process rights; 4) claims that the denial infringed on free speech and equal protection rights; and 5) allegations of an unconstitutional taking without just compensation.
The relevant facts indicate that on December 22, 1993, ABC Partners (formerly 1-69, Inc.) applied for permits for two billboards, the Shelby and Bodkin signs, located along Interstate 70 in Hancock County, Indiana. These applications were part of a required registration process for outdoor advertising signs in existence as of July 1, 1993, under the Billboard Act, which aligns with federal regulations. Both signs, erected before 1968 and within 660 feet of the highway, were subject to INDOT's registration and permit regulations.
In 1994, U.S. Outdoor reconstructed both signs, which led to disputes regarding the scope and nature of the changes. On August 19, 1994, INDOT's permit coordinator informed U.S. Outdoor that the Bodkin sign was ineligible for a permit due to its status as an existing non-conforming sign that had been replaced, while the Shelby sign was denied for being reconstructed. U.S. Outdoor appealed these denials. An administrative law judge conducted a hearing in December 1995 and recommended affirming INDOT's denial of the permit applications on May 2, 1996.
Key findings regarding the Shelby sign include that it was erected before 1968, located in a control area requiring a permit, and zoned residential. A new sign was constructed using a torsion bar design, differing from the original design that connected poles directly to the sign face. This new sign is ineligible for a permit under Indiana Administrative Code 105, 7-3-6, as the area is not zoned commercial or industrial. The original sign's pre-1968 status and location within a control area were undisputed, with evidence showing that the newly constructed sign is distinct from the original, disqualifying it as a legal sign. Despite claims of repair, testimony and photographic evidence confirmed that the new sign was built in front of the old one, indicating it is a new structure.
Regarding the Bodkin sign, it was also erected before 1968, located in a control area, and zoned residential. Significant renovations in 1994 altered its dimensions and design, including height and width increases and a shift to a torsion bar design. These modifications led to the conclusion that the sign did not remain "substantially the same," violating Indiana Administrative Code 105, 7-3-7(1), thereby rendering it ineligible for a permit.
The original sign was established before 1968 within a control area requiring a permit, and the area is zoned R-1 (residential). Testimony from witnesses Busby and Gibson indicated that the sign was repaired using original materials, but INDOT's Permits Engineer, Duane Myers, contested this, particularly regarding the original poles. However, the resolution of these disputes was deemed unnecessary because the sign underwent significant physical changes. Specifically, the height increased from 18 to 25 feet, the width of the sign face expanded from 36 to 60 feet, the height of the face rose from 12 to 20 feet, and the overall face size grew from 432 to 1200 square feet. Additionally, the number of supports reduced from 10 wooden posts to 5 steel posts, and the design shifted from poles connected directly to the sign face to a torsion bar design. These modifications resulted in the loss of the sign's nonconforming status, disqualifying it from receiving a permit under [Ind. Admin. Code 105, 7-3-7].
The ALJ noted that according to [Ind. Code 8-23-20-25(1)], permits cannot be issued for signs in adjacent areas after January 1, 1968, and argued that this does not imply a permit must be granted for signs erected before that date. Additionally, federal statutes do not differentiate between pre- and post-1968 signage in adjacent areas except concerning size and configuration, which became applicable only after a federal-state agreement in 1971. Given that the Shelby sign was replaced and the Bodkin sign was enlarged, both signs were inconsistent with the federal provisions, providing a basis for permit denial under [Ind. Admin. Code 105, 7-3-12(5)].
On September 5, 1996, INDOT Commissioner Stan C. Smith upheld the ALJ's findings and denied the permits, ordering the removal of the signs within 30 days. U.S. Outdoor petitioned for judicial review of this decision and requested a stay of the removal order, which the trial court granted on October 8, 1996. After a hearing on December 11, 1997, the trial court affirmed INDOT’s permit denial on February 25, 1998, leading U.S. Outdoor to appeal. The review of INDOT’s decision is constrained to evaluating whether there was a lack of subject matter jurisdiction, improper procedures, or whether the decision lacked substantial evidence or was arbitrary or capricious. The appellate review must favor the administrative proceeding's record and cannot reassess evidence or witness credibility.
The Court reviews administrative agency decisions, such as those made by INDOT, from the same perspective as a trial court, and it can only vacate INDOT’s decision if the overall evidence shows that its conclusions are clearly erroneous. U.S. Outdoor, challenging INDOT's decisions, bears the burden of proving their invalidity. While the Court must give some deference to INDOT's interpretations of the statutes and regulations it enforces, it retains the ultimate authority to interpret the law and is not bound by INDOT's views. Additionally, an administrative decision cannot rely solely on hearsay evidence unless it falls within established exceptions to the hearsay rule.
U.S. Outdoor contends that the Administrative Law Judge (ALJ) incorrectly interpreted relevant laws in denying permit applications for the Shelby and Bodkin signs, asserting that these signs were built before 1968 and that their maintenance in 1994 should not have hindered permit issuance. The regulations address various aspects of outdoor advertising, including size, content, distance from the interstate right-of-way, the date of construction, and the repair of nonconforming signs. The adjacent area, defined as within 660 feet of an interstate or primary highway, is significant in these regulations, which prohibit the erection or maintenance of certain signs deemed illegal or inconsistent with the governing statutes.
Furthermore, INDOT is mandated to implement a permit system for regulating outdoor advertising signs along specified highways, with certain exceptions for specific types of signs, including directional signs and those indicating property sales or leases. Signs in existence before July 1, 1993, are subject to registration and permit requirements as determined by INDOT. The department is also required to adopt rules to enforce these regulations, ensuring they align with federal guidelines.
Rules adopted under the relevant section must include:
1. A list of roadways requiring permits.
2. An appeal procedure for adverse department determinations, including judicial review provisions.
3. Permits for signs erected in adjacent areas after January 1, 1968, are contingent upon being in specified areas or obtaining a conditional permit.
4. For signs erected after June 30, 1976, outside urban areas, permits are restricted unless the sign is in specific areas or has a conditional permit.
5. Conditional permits may be issued for nonconforming signs that have not been acquired by the department, with potential revocation if the department acquires the sign later.
6. Additional provisions may be necessary for administration and compliance with federal law.
Registered signs cannot be declared unlawful until the department determines permit eligibility or until December 31, 1993. Each sign structure requires a separate registration application with specific information and a $25 fee. Signs not registered by January 1, 1994, are deemed public nuisances.
The Indiana Administrative Code outlines criteria for permit denial, specifically regarding signs erected within 660 feet of roadways after January 1, 1968, and those visible from roadways erected after June 30, 1976. Signs illegal under state laws or inconsistent with federal regulations are also ineligible for permits.
U.S. Outdoor acknowledges that certain signs were legal nonconforming signs, having been erected before 1968 and located within a control area, thus requiring permits. This stipulation was not disputed on appeal, and the finding by the Administrative Law Judge (ALJ) regarding the legality of these signs is not considered erroneous.
On September 13, 1994, Busby sent two letters to INDOT, appealing permit denials regarding two non-conforming signs. For the Bodkin sign, he noted its 25-year existence and recent reconditioning efforts to restore it to a new appearance, emphasizing that reasonable maintenance does not substantially alter its non-conforming status, as per Ind. Admin. Code 105, 7-3-7(1). He asserted that the sign is neither a hazard nor an eyesore. Concerning the Shelby sign, Busby explained that extreme repairs were necessary due to weather damage to ensure safety for the landowner and public. He reiterated that reasonable maintenance should not be deemed as altering the sign’s status.
Ind. Admin. Code 105, 7-3-7 outlines conditions for issuing permits for non-conforming signs, stating the sign must remain substantially unchanged and not be destroyed or abandoned. Definitions under Ind.Code 8-23-1-21 clarify that "erect" does not include maintenance or advertising message changes, while "maintain" means to allow existence. U.S. Outdoor contended that the Administrative Law Judge (ALJ) misinterpreted maintenance guidelines, claiming his findings were unsupported by evidence. However, even favoring U.S. Outdoor's interpretation of their work on the signs, the ALJ concluded that the alterations were significant enough to disqualify them from receiving conditional permits as legal non-conforming signs. Gibson’s testimony indicated that both signs were originally built using wood and steel substructures.
Gibson's work crew modified two signs, the Bodkin and Shelby signs, through significant structural changes. For the Bodkin sign, one original vertical steel support pole remained, while four others were relocated and set in eight-foot deep concrete-filled holes. A horizontal steel pole was added as a torsion bar for reinforcement, a feature absent in the original design. The new vertical poles were primed and painted for rust resistance. Approximately four new steel I-beam uprights were attached to the torsion bar, supporting a new 20-foot-by-60-foot metal sign face using metal stringers from the original sign. The crew replaced the old light fixtures with more cost-effective options and discarded the rotted wooden sign face and structural components.
For the Shelby sign, five vertical support poles were moved forward two feet, with another original pole installed as a torsion bar, similarly treated for rust resistance and stabilized in concrete. The original wooden sign remained attached to the remaining wooden structure during this work. The reconstruction of the Shelby sign mirrored the Bodkin sign’s process, including the installation of a new metal sign face and new lighting fixtures.
U.S. Outdoor's claims regarding the reasonableness of sign maintenance are considered inapplicable, particularly in light of previous cases cited that do not directly relate to the current dispute. The Indiana cases referenced do not align with the statutory definition of "maintain" and do not provide relevant precedents. Additionally, a case involving the Illinois Department of Transportation's regulations highlights differences in authority and requirements for sign replacement, suggesting that no similar authority was usurped by Indiana's Department of Transportation (INDOT) in this context. The Billboard Act and Indiana Administrative Code offer sufficient guidance for the current case regarding the maintenance and modification of signs.
In appeals regarding an agency's legal determinations, courts independently assess whether the agency correctly interpreted and applied the law, not bound by the agency's interpretation (Miller Brewing Co. v. Bartholomew Beverage Co. Inc.). Clear and unambiguous statutes require no interpretation, while ambiguous statutes allow for judicial construction (Indiana Dept. of Natural Resources v. Peabody Coal Co.). The primary goal in interpreting statutes is to ascertain and implement legislative intent, considering the statute's overall purpose and policy. Courts must interpret statutes as a whole, using common meanings of words, ensuring every word carries meaning and is consistent within the statute (JKB, Sr. v. Armour Pharmaceutical Co.).
Statutory construction principles also apply to administrative regulations, where ambiguity permits consideration of the consequences of interpretations (Bryant v. Indiana State Dept. of Health). Administrative decisions should rely on clear standards to ensure consistent agency actions, which should be sufficiently precise to avoid vagueness challenges (Midwest Steel Erection Co. Inc. v. Commissioner of Labor). U.S. Outdoor argues that the Billboard Act aimed to protect federal highway funding and not regulate pre-1968 signs, referencing Ind.Code. 8-23-20-1(a). Nonetheless, compliance with federal provisions is necessary for continued funding, as emphasized by the U.S. Congress regarding the control of outdoor advertising to safeguard public investments and enhance travel safety and aesthetics. The U.S. Supreme Court acknowledges that billboards pose traffic safety hazards and can be perceived as aesthetic harm (Metromedia, Inc. v. City of San Diego).
U.S. Outdoor's interpretation of “reasonable maintenance and repair” of advertising signs is based on the significant disparity between the costs incurred (approximately $5,000 per sign) and the signs' fair market value (about $90,000 per sign), as well as potential revenues from a five-year lease (ranging from $60,000 to $120,000 per sign). However, this reliance on economic factors, including tax revenues from gas station sales, is deemed misguided. U.S. Outdoor substantially altered the signs, contravening both the letter and intent of the Billboard Act, making the cost of alterations irrelevant to the legal conclusion. The Billboard Acts aim to enhance public safety and preserve natural beauty through regulation of outdoor advertising, with provisions for compensating the removal of nonconforming signs. States can impose stricter regulations than federal standards. While legal nonconforming signs may be repaired, they cannot be substantially altered or rebuilt if destroyed by natural forces, though reerection is allowed for damage caused by vandalism or criminal acts. The legislative intent is clear: to ensure compliance with safety regulations and prevent the circumvention of the Billboard Act by allowing old signs to be transformed into new ones. U.S. Outdoor's extensive modifications went beyond routine maintenance, including removing and replacing steel uprights and adding new sign faces and lighting, indicating a substantial alteration rather than mere preservation.
Complex technical formulas are unnecessary for assessing compliance with Ind. Admin. Code 105, 7-3-7(1) regarding sign maintenance and alteration. The evaluation should focus on the specific facts of each case rather than rigid rules about material reuse or minor changes, such as sign facing adjustments, provided the dimensions and content conform to the Billboard Act. INDOT’s permit engineer, Duane Myers, is commended for his flexible inspection approach, which benefits both the agency and sign owners. However, U.S. Outdoor exceeded reasonable maintenance when they significantly reconstructed signs on the Shelby and Bodkin properties.
While Ind. Admin. Code 105, 7-3-7(1) is broadly written, it should be interpretable by those familiar with the Billboard Acts. The Administrative Law Judge (ALJ) found the signs were on residentially zoned property, but significant evidence was ruled hearsay, making the zoning determination insufficiently supported. Despite some evidence regarding the signs' proximity to Interstate 70, the zoning status remains unclear. The case is remanded to determine the zoning accurately; if found residential, the signs would not qualify for permits under Ind. Admin. Code 105, 7-3-6(1) and must be removed.
U.S. Outdoor also contends that INDOT should be equitably estopped from denying permit applications based on a 1993 conversation implying that repairs were permissible without size increases. The ALJ deemed the account too vague for reasonable reliance, and for equitable estoppel to apply, U.S. Outdoor must demonstrate a lack of knowledge about relevant facts, reliance on INDOT's conduct, and prejudicial action based on that reliance.
Equitable estoppel is generally not applicable against government entities, though exceptions exist. Courts are hesitant to grant estoppel when the claimant had access to accurate information. Reliance on misinformation from government employees does not typically support estoppel, as it could hinder government functionality if bound by unauthorized statements. Furthermore, courts prefer not to apply equitable estoppel unless it serves the public interest. The Indiana Supreme Court has ruled that legislative procedures and timelines must be adhered to, regardless of unauthorized actions by state officials.
In this case, Busby did not document his interactions with INDOT employees or seek written confirmation of their guidance. The record lacks evidence that he provided detailed plans for sign reconstruction. The Administrative Law Judge (ALJ) determined that U.S. Outdoor violated INDOT's instructions by increasing the size of a sign. U.S. Outdoor, engaged in billboard advertising, is expected to be knowledgeable about relevant regulations. Despite citing Indiana law in appeals regarding permit denials, Busby did not claim reliance on INDOT's prior statements for the sign changes. U.S. Outdoor failed to demonstrate that applying equitable estoppel against INDOT would be in the public interest, and there were no compelling reasons to reverse the ALJ's decision on this matter.
U.S. Outdoor also claimed that INDOT’s denial of its permit applications violated due process by failing to provide adequate notice of the reasons for denial, lacking clear evaluation standards, and not disqualifying the ALJ and INDOT’s attorney from the proceedings. U.S. Outdoor argued that INDOT gave inconsistent reasons for the denials, with the ALJ citing additional reasons.
INDOT initially denied U.S. Outdoor's permit applications on the grounds that the signs were existing non-conforming signs that had been reconstructed. Subsequent denials referenced a 50% repair rule, which INDOT later stated was not used in the permit denial, and the Administrative Law Judge (ALJ) did not consider this rule in his decision. Regarding the Shelby sign, the ALJ concluded that a new sign could not receive a permit due to zoning issues, and even a reconstruction of the previous sign was ineligible due to significant design changes, violating Ind. Admin. Code 105, 7-3-7(1). For the Bodkin sign, modifications were deemed to have lost its nonconforming status, making it ineligible under Ind. Admin. Code 105, 7-3-7. The regulation requires that permit denial be accompanied by a clear rationale, aligning with established case law that mandates administrative decisions adhere to ascertainable standards to ensure due process.
Although the ALJ provided additional reasons for affirming INDOT's denial, U.S. Outdoor did not raise objections based on surprise or due process but only on hearsay grounds. The ALJ's decision reflected INDOT’s original denial focus on the reconstruction of nonconforming signs. U.S. Outdoor failed to demonstrate any prejudice resulting from INDOT’s notice or the ALJ’s decision, which impacted the potential for reversal of the judgment. U.S. Outdoor also argued that INDOT changed its reasoning for the denials, causing confusion regarding the rules governing billboards. However, INDOT clarified prior to the hearing that the 50% rule was not a basis for denial, and its reference in the letters, while confusing, did not mislead U.S. Outdoor during the appeal process. The argument that INDOT's standard was insufficiently clear was viewed as disingenuous, given that U.S. Outdoor applied for permits based on the old signs and ignored the regulations of the Billboard Act in its reconstruction and replacement efforts.
The purpose of 23 U.S.C. 131 and the Billboard Act is to permit sign owners to keep nonconforming billboards intact until they are either acquired and dismantled by the State or naturally deteriorate. U.S. Outdoor's reconstruction of certain billboards is perceived as an attempt to circumvent INDOT and relevant regulations. U.S. Outdoor argues that it was not afforded a neutral decision-maker due to INDOT’s attorney being appointed as an ALJ prior to the hearing. They cite Ind.Code. 4-21.5-3-10 and the Code of Judicial Conduct to claim disqualification of both the attorney and the ALJ to preserve impartiality. The State counters that U.S. Outdoor fails to provide case law supporting automatic disqualification in such circumstances. Ind.Code. 4-21.5-3-10 allows for disqualification under specific causes, while the Judicial Conduct rules prohibit practicing law in cases where a judge has served. U.S. Outdoor's assertion that the trial court ignored evidence of its due process rights is rejected, as findings indicate that the concerns were considered, even if the outcome was unfavorable. The comparison to City of Mishawaka v. Stewart is deemed inappropriate because the roles of the city attorney and the Board member differed significantly from the current case. The State argues that accepting U.S. Outdoor’s position would unjustly compromise all cases prosecuted by an attorney who later becomes an ALJ, leading to impractical outcomes. Thus, the State's interpretation of the applicable laws and conduct rules is upheld.
U.S. Outdoor contends that the Billboard Act, specifically Ind.Code 8-23-20-25, inappropriately differentiates signs based on their content, thereby violating free speech and equal protection rights under both the U.S. and Indiana Constitutions. The Act exempts certain signs from requiring permits, including directional signs and those advertising property for sale or lease. U.S. Outdoor asserts that the Bodkin and Shelby signs do not qualify for these exemptions and argues that the state's regulation of commercial speech constitutes governmental overreach and is impermissibly content-based.
The statute is presumed constitutional until proven otherwise, with the burden of proof resting on the challenger. The First Amendment protects commercial speech, albeit to a lesser degree than other forms of expression. The U.S. Supreme Court has established a four-part test for validating restrictions on commercial speech: (1) the speech must be lawful and non-misleading; (2) the restriction must serve a substantial government interest; (3) it must directly advance that interest; and (4) it must be no broader than necessary.
U.S. Outdoor maintains that its signs are lawful and non-misleading, thus prompting an examination of the remaining three prongs of the test. U.S. Outdoor argues against the state's ability to distinguish between on-site and off-site commercial signs concerning traffic safety and aesthetics. However, the Supreme Court has previously concluded that prohibiting off-site advertising relates to these objectives, noting that the state may perceive off-site advertising as presenting a greater issue due to its changing content. The state’s preference for on-site advertising over off-site advertising is acknowledged, indicating a valuation of different types of commercial speech.
The ordinance indicates the city prioritizes onsite commercial advertising interests over its own concerns for traffic safety and aesthetics. The city justifiably believes that the need for businesses to identify themselves and advertise locally outweighs its interest in regulating advertising for external commercial entities. This rationale allows for the distinction between permissible onsite commercial billboards and prohibited offsite billboards, aligning with the constitutional standards set by the Central Hudson case.
The Billboard Act, applicable statewide, differentiates commercial signs solely based on location, not content, which is constitutionally acceptable. The court does not address whether the Act restricts noncommercial speech, as its scope focuses exclusively on outdoor advertising. U.S. Outdoor has not demonstrated that the Billboard Act violates the Central Hudson test for regulating commercial speech, thus further constitutional arguments are unnecessary.
Regarding potential takings without just compensation, the court notes that the issue is not ripe for consideration since the signs have not yet been removed. Indiana Code stipulates that the relevant department is responsible for compensating the removal of nonconforming signs, and claims for compensation must be filed within 180 days post-removal. If an agreement on compensation is not reached within 120 days, the claimant may seek a civil court determination, but must file within a year of the claim. U.S. Outdoor fails to cite authority for its claim that a permit denial equates to a removal order for the sign.
U.S. Outdoor received a stay on INDOT’s order to remove the Bodkin and Shelby signs, which rendered its arguments regarding this issue premature. The company’s reliance on Ind.Code. 8-23-20-16(b) for compensation prior to removal is incorrect, as this subsection does not apply to actions taken by INDOT under the relevant chapter. The State argued successfully that U.S. Outdoor’s reconstruction of the signs transformed them from legal nonconforming to illegal signs, negating the requirement for compensation under Ind.Code. 8-23-20-10. The trial court agreed, emphasizing that the signs became illegal not due to time or the ALJ's decision, but because U.S. Outdoor voluntarily altered the signs, thus disqualifying them from compensation for noncompliance with billboard laws. U.S. Outdoor’s request for an analysis of INDOT's permit denials based on Stuckman v. Kosciusko County and Ailes v. Decatur County is declined, as those cases address the prohibition of lawful use, which does not apply here since U.S. Outdoor could have maintained compliance had it kept the signs substantially unchanged. The court remanded the case for further factual findings, with U.S. Outdoor retaining the right to petition for judicial review. The Bodkin sign is located between mile markers 99 and 100 on Interstate 70, while the Shelby sign is between mile markers 95 and 96. U.S. Outdoor submitted various registration/permit applications reflecting changes to the size, substructure, and illumination of the signs, with incomplete forms submitted by ABC Partners in 1994 and early 1995.
On April 11 and 12, 1995, letters from Dawn D. Barr, INDOT's Right-of-Way Coordinator, informed ABC Partners that permit applications for the Bodkin and Shelby signs were denied because the signs had been completely rebuilt in summer 1994. The letters indicated that non-conforming signs cannot be resized or have repairs exceeding 50% of their total structure. U.S. Outdoor's appeal stemmed from INDOT's prior denial letter dated August 19, 1994. INDOT later clarified that a “50% rule” was not adopted and did not influence the permit decisions, and the Administrative Law Judge (ALJ) did not consider this rule in affirming the denials.
Regarding the Bodkin sign, it was noted that it held a non-conforming status as it was erected before 1968, beyond the 660-foot right-of-way limit, and thus was grandfathered in. Testimony indicated both signs are over 660 feet from Interstate 70, but prior applications claimed they were within this distance, leading to inconsistencies. The ALJ did not explicitly determine the signs' distances but acknowledged they were within a control area relevant to zoning regulations. Although evidence on the signs' distances was conflicting, the ALJ’s decision was supported by substantial evidence, and the Court refrained from reweighing this evidence. The quality of photographic evidence in the record was deemed inadequate. The Court recognized Judge Price's comprehensive findings of fact and conclusions of law. Indiana Code 8-23-1-44 defines an "urban area" based on census designations and population criteria, while Code 8-23-1-43(a) outlines further relevant definitions.
An "unzoned commercial or industrial area" refers to a nearby area lacking state or local zoning designations, containing one or more permanent structures used for commercial or industrial purposes, or where such activities occur. This area extends 600 feet from the edge of the commercial or industrial activity and is located along either side of an interstate or primary highway, excluding land designated as scenic. Under Ind.Code. 8-23-20-7, signs may be erected beyond 660 feet from the highway's right-of-way, including directional signs, property sale or lease signs, and business identification signs. Concerns have been raised about the regulation of pre-1968 billboards along Indiana’s interstates, prompting a recommendation for the General Assembly and INDOT to review the Billboard Act to clarify the status of these signs. Ind.Code. 8-23-20-25(d) mandates that signs existing as of July 1, 1993, comply with a registration system. The ALJ considered letters from INDOT employee Deborah K. Hommel regarding permit denials for the Bodkin and Shelby signs, noting that while these letters were not formally introduced as evidence, they were acknowledged in the record. Ind. Admin. Code 105, 7-3-7(2) states that signs destroyed by vandalism or criminal acts may be reerected. The ALJ found a new sign at the Shelby location was ineligible for a permit due to zoning issues and reinforced this conclusion regardless of whether the sign was a reconstruction. The case is remanded to determine the zoning designations for both properties in question. Ind.Code. 8-23-1-21 defines “erect” as to construct or build.
The excerpt addresses the legal implications of U.S. Outdoor's recent alterations to its signs on the Shelby property and the Bodkin sign. It confirms that U.S. Outdoor erected a new sign and made substantial changes beyond routine maintenance or simple message updates. The discussion highlights the necessity for outdoor advertising sign owners to seek approval from the Indiana Department of Transportation (INDOT) before undertaking any modifications, including detailing proposed changes and securing written documentation of communications with INDOT.
The dissent argues that U.S. Outdoor's changes disqualified the signs from being considered non-conforming under Indiana law, thus preventing permit issuance. However, it points out that according to Indiana Administrative Code 105, a permit cannot be issued for signs within 660 feet of a roadway if they were erected after January 1, 1968, unless in commercial or industrial zones. The evidence used to classify the Bodkin and Shelby properties as residential is deemed hearsay, and the ruling emphasizes that zoning status is critical for permit eligibility. Consequently, the case is remanded to INDOT for a hearing to properly determine zoning.
Additionally, the trial court's mention of a conversation with an INDOT employee is noted, and it is clarified that this case is not published in Indiana Reports. U.S. Outdoor's claims of bias against the Administrative Law Judge (ALJ) due to reliance on hearsay are dismissed as unfounded, with reference to Indiana law permitting hearsay evidence. U.S. Outdoor's constitutional arguments regarding the Billboard Act are considered weak, particularly since the signs in question displayed commercial messages when permits were denied.
