View Outdoor Advertising, LLC v. Town of Schererville Board of Zoning Appeals
Docket: Cause No. 2:13 CV 219-PPS
Court: District Court, N.D. Indiana; January 21, 2015; Federal District Court
View Outdoor Advertising seeks to erect a billboard in Schererville but faces obstacles due to a recent ordinance banning all billboards. View argues this ordinance infringes on its free speech rights, lacks due process regarding its variance request, and asserts that the denial of the variance was arbitrary. The Town of Schererville, its Board of Zoning Appeals, and certain individuals are collectively referred to as 'the Town,' which has moved for summary judgment on all claims. The court grants the Town's motion in part, dismissing View's federal claims while remanding its state law claims to Lake Superior Court.
In 2011, View contracted for land to build a billboard, previously occupied by billboards owned by Lamar Advertising. After Lamar's leases expired and the billboards were removed, View applied for a building permit but was denied due to proximity to vacant buildings. Following the demolition of those buildings at a significant cost, View was informed that the zoning (C-3 PUD) prohibited billboards outright. After successfully rezoning the parcel, View learned that a new ordinance, effective January 1, 2012, prohibited all new billboards in Schererville, rendering its efforts moot. The new ordinance, aimed at enhancing aesthetics and quality of life, allows existing billboards to remain but bans all new installations.
View subsequently appealed the permit denial and filed a Petition for Variance with the Board of Zoning Appeals (BZA). During the BZA hearing, View presented evidence and engaged in discussions regarding its variance request.
View's challenges in obtaining zoning and permits were discussed at a hearing where BZA Chairman William Jarvis proposed a thirty-day continuation due to the lengthy history of these issues. Board member Robert Pharazyn opposed this, moving instead for an unfavorable recommendation to the Town Council, citing that View's request was not compliant with the Town of Schererville's comprehensive plan, one of the five criteria for variance approval under Indiana law. The BZA unanimously voted in favor of Pharazyn's motion, which was then forwarded to the Town Council. Notably, View did not receive notice of the April 24, 2013 Town Council meeting, a fact both parties acknowledged, resulting in the meeting proceeding without View and the BZA's recommendation being upheld without additional arguments or evidence.
Following this, View filed a "Verified Petition for Judicial Review" in state court, seeking relief under Indiana Code I.C. 36-7-4-1003 for judicial review of zoning board decisions. The case was later removed to federal court due to constitutional claims included in the petition. View also discovered that a competitor, Lamar Advertising Company, had been granted a variance for a billboard nearby, contingent on Lamar removing three other billboards. View contended that the ordinance banning billboards violated its First Amendment right to commercial speech and that its due process rights were infringed by the lack of notice for the Council meeting. Additionally, View alleged that the actions of the BZA and Town Council were arbitrary and capricious.
The Town is seeking summary judgment, asserting that there is no genuine issue of material fact warranting a trial. View’s First Amendment claim challenges the constitutionality of an ordinance prohibiting all billboards and outdoor advertising, arguing that the prohibition violates its rights to commercial free speech. While the government can regulate the non-communicative aspects of billboards, any such regulation must carefully balance governmental interests against First Amendment protections, necessitating the application of the four-part test from Central Hudson Gas & Electric Corp. v. Public Service Commission of New York.
The First Amendment protects commercial speech related to lawful activities and that is not misleading. Restrictions on such speech are valid if they serve a substantial governmental interest, directly advance that interest, and are narrowly tailored. In this case, the ordinance bans all billboards, and the discussion assumes it applies only to commercial speech. The initial factors concerning legality and substantial government interest are agreed upon, focusing the dispute on whether the ordinance effectively advances the Town's aesthetic goals and is narrowly tailored to achieve them.
View argues that the Town must provide evidence of the ordinance's effectiveness in improving aesthetics; however, the Court has established that subjective interests like aesthetics do not require detailed proof. Billboards are inherently perceived as aesthetically harmful, supporting the ordinance as a valid measure to enhance the Town's appearance. The ordinance is deemed narrowly tailored, as a complete ban is the most effective means of addressing the aesthetic issues posed by billboards.
While View suggests that a less restrictive ordinance could achieve the same goals, the existence of alternative approaches does not render the current ordinance unconstitutional. Additionally, View's argument that a variance granted to Lamar indicates the ordinance's underinclusiveness is deemed irrelevant, as past applications do not impact the determination of the ordinance's constitutionality. Overall, the ordinance is affirmed as fulfilling its intended purpose of enhancing the Town's aesthetics.
The ordinance in question aims to improve aesthetics by implementing a total ban on billboards, which differs from the underinclusive approach found in City of Cincinnati v. Discovery Network, where only select news racks were removed. The Town's action is supported by a rational basis, as evidenced by the variance granted to Lamar Advertising in exchange for the removal of three billboards, making it a justified distinction from View. View's assertion of an equal protection violation is unfounded, as no equal protection claim was raised.
Regarding the due process claim under the 14th Amendment, View argues that it was denied notice and an opportunity to be heard when its variance petition was rejected. However, the Town contends that View received adequate process during a prior Board of Zoning Appeals (BZA) hearing. The claim's basis appears to stem from a failure to follow state procedures rather than a constitutional violation, suggesting it is more appropriate for state court. Although View claims a valid property interest in the billboard, the legal clarity on this point is ambiguous. The court does not need to determine the validity of this property interest, as it finds no due process violation occurred. The role of federal courts in zoning matters is limited, emphasizing minimal procedural requirements. Consequently, all federal claims are dismissed, and any remaining state law claims will be remanded to the Lake Superior Court.
Seventh Circuit precedent supports providing some minimal due process in zoning cases, particularly for parties seeking zoning variances. Due process typically includes notice and the opportunity to be heard before a property interest is deprived, with the opportunity to be heard being crucial. Courts assess three factors to determine due process violations: (1) the private interest affected by government action; (2) the risk of erroneous deprivation through the existing procedures; and (3) the government’s interests, including the administrative and fiscal implications of changing procedures. Generally, the private interest in zoning variances is deemed lower than the government's land use regulation interests.
In the case concerning View, the procedures followed by the Board of Zoning Appeals (BZA) did not pose a significant risk of erroneous deprivation of property rights, as View received notice and a substantial opportunity to present its case. View's counsel effectively engaged with the BZA, and the Town Council later reviewed the same evidence before reaching a decision, which aligns with the minimal due process requirements for zoning appeals.
The relevant case, *City of Hobart Common Council v. Behavioral Institute of Indiana*, highlights that due process is violated if a party is not notified of subsequent proceedings after providing input to the BZA, particularly if new evidence is introduced. However, in View’s instance, the Town Council did not rely on any new evidence, thus fulfilling due process obligations.
Even if the procedures were deemed inadequate, View retains post-deprivation remedies available under state law, which have been recognized by the Seventh Circuit as sufficient to meet due process standards. Additionally, View's claims of intentional failure by the Town to provide notice of the council meeting do not constitute a material fact to preclude summary judgment, as there is no evidence of intentional misconduct in the record. No substantial argument or legal authority has been provided by View to suggest that the nature of the alleged failure impacts the due process assessment. Overall, View has received adequate process in accordance with the 14th Amendment’s requirements.
View was not entitled to notice of the council’s meeting as it had previously been given an opportunity to be heard, and no new evidence was introduced. Consequently, the Town's reasons for not providing notice were deemed irrelevant and immaterial. In Count III, View claimed the Town's denial of its zoning variance request was arbitrary and capricious, which challenges the decisions made by the Board of Zoning Appeals (BZA) and the Council. While this issue generally falls under state court jurisdiction, the court declined to exercise supplemental jurisdiction since all federal claims were dismissed. As a result, this claim, along with any remaining state law claims, was remanded to the Lake Superior Court.
In conclusion, the court granted in part the defendants' motion for summary judgment, resulting in the following outcomes:
1) Dismissal of Count I (First Amendment) of the Complaint.
2) Dismissal of the federal due process claim in Count II, while remanding any remaining state law due process claims to the Lake Superior Court.
3) Remand of Count III (arbitrary and capricious) to the Lake Superior Court.
Judgment was entered in favor of the defendants on the federal claims, including those under the First and Fourteenth Amendments. The reference to Metromedia illustrates a legal precedent regarding commercial speech and billboards, noting that the specific issue of content-based distinctions is not relevant to this case.
