Opinion
No. 3:19-cv-00141-JRS-MPB
2023-01-12
GEFT OUTDOOR, L.L.C., Plaintiff, v. CITY OF EVANSVILLE, Defendant.
A. Richard M. Blaiklock, Charles R. Whybrew, Lewis Wagner, LLP, Indianapolis, IN, for Plaintiff. Dirck H. Stahl, Ziemer Stayman Weitzel & Shoulders, Evansville, IN, Laura Katherine Boren, Stoll Keenon Ogden PLLC, Evansville, IN, for Defendant.
A. Richard M. Blaiklock, Charles R. Whybrew, Lewis Wagner, LLP, Indianapolis, IN, for Plaintiff. Dirck H. Stahl, Ziemer Stayman Weitzel & Shoulders, Evansville, IN, Laura Katherine Boren, Stoll Keenon Ogden PLLC, Evansville, IN, for Defendant.
Entry on Amended Motions for Summary Judgment
JAMES R. SWEENEY II, JUDGE
GEFT Outdoor L.L.C. ("GEFT"), an outdoor sign advertiser, challenges the Zoning Ordinance (the "Ordinance") of the City of Evansville (the "City"), Indiana. GEFT intended to erect a digital billboard on property in Evansville and sought a variance from the Ordinance governing signs in order to do so. The Board of Zoning Appeals (the "Board") denied GEFT variances. GEFT sued alleging that the Ordinance violates the First Amendment as incorporated against the states under the Fourteenth Amendment. GEFT claims that the Ordinance is unconstitutional on its face because it contains content-based regulations and that the permitting and variance procedures for signs are unconstitutional prior restraints on GEFT's free speech rights.
The Court previously granted GEFT partial summary judgment. The Court decided that the Sign Standards in the Ordinance were an unconstitutional content-based restriction on speech and that the Sign Standards' permitting and the variance processes as applied to signs were an unconstitutional prior restraint on speech. A permanent injunction was entered declaring Chapter 18.140 of the Ordinance unconstitutional in its entirety and the City was enjoined from enforcing that Chapter. The City appealed, and the case was stayed pending the appeal. Following the Supreme Court's decision in City of Austin v. Reagan National Advertising of Austin, LLC, 596 U.S. 61, 142 S. Ct. 1464, 212 L.Ed.2d 418 (2022), the Seventh Circuit vacated this Court's judgment except for the terms of the permanent injunction and remanded for reconsideration in light of City of Austin.
The parties have filed amended motions for summary judgment, and the City has moved to vacate the permanent injunction. The Court has reconsidered its judgment and decides as follows.
I. Background
Outdoor signs in the City must comply with the City's sign ordinance ("Sign Standards"), which limits the size and location of signs. GEFT buys or leases land upon which to construct, maintain, and/or operate signs to be used for the dissemination of both commercial and noncommercial speech. (Aff. of Jeffrey Lee, ¶ 3, ECF No. 95-1.) The owner of real property in the City on Oak Grove Road, which property is adjacent to I-69, a major thoroughfare, leased a portion of that property to GEFT. (Id. ¶ 4.) GEFT intended to erect a digital billboard displaying both commercial and noncommercial speech on the property. (Id. ¶¶ 5, 7.) GEFT sought variances from the requirements for height of off-premises signs, spacing between off-premises signs, and placement of off-premises signs on certain subdivision plats. (Lee Aff. ¶ 11, ECF No. 95-1; Compl., Ex. A, ECF No. 59-1; see also VAR-2019-033, Doc. 43-1 at 6.) GEFT sought relaxation of the spacing requirements due to a pipeline running through part of the property and sought relaxation of the height requirement because of an overpass on a nearby highway, which limited the line of sight of northbound travelers. (ECF No. 43-1 at 16.)
The Sign Standards require a permit for many signs: "Except as otherwise provided for in this chapter, it shall be unlawful for any person to erect, construct, enlarge or move any sign, or cause the same to be done without first obtaining an improvement location permit (also known as a 'sign permit') issued by the Planning Department." Ord., Ch. 18.140.020(B)(1). The Sign Standards exempt certain signs from the permit requirement, including "public signs," "political signs," and "construction signs" (the "Exemptions"). Ord., Ch. 18.140.030(C), (D). An exempt sign must still comply with the other Sign Standards such as height, size, and spacing limitations. Ord., Ch. 18.140.030(A). A sign permit application does not ask the applicant about the content of the proposed sign. (See Off-Premises Sign Permit Application, ECF No. 166-1; On-Premises Sign Permit Application, ECF No. 166-2.)
An applicant desiring a variance from the Sign Standards can petition the Board for a variance. Ord., Ch. 18.165.010(A). The Board decides whether to grant petitions for variances from the Sign Standards. Ord., Ch. 18.165.010(B). The Board may not approve a variance unless it finds in writing that:
(1) The approval will not be injurious to the public health, safety, morals, and general welfare of the community.Ord., Ch. 18.165.010(B); see also Ind. Code § 36-7-4-918.5(a). In granting a variance, the Board may impose "whatever conditions or limitations are necessary to protect adjacent properties and the surrounding neighborhood and effectuate the purposes of [the Ordinance]." Ord., Ch. 18.165.010(D).
(2) The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner.
(3) The strict application of the terms of this title will result in practical difficulties in the use of the property.
(4) The variance is not a variance of the use of the property.
(5) The petitioner's property is not located in a planned unit development.
(6) The need for the variance is not created by the applicant.
The Board held a hearing on GEFT's variance petition at which several remonstrators appeared and argued against the variance request. The Board denied the variance petition upon finding that the variance failed to satisfy all the factors identified in Chapter 18.165.010. (Board Record, at 43-45, ECF No. 43-1; Lee Aff. ¶ 12, ECF No. 95-1.) The Board issued detailed findings regarding the denial. (Board Record 134-45, ECF No. 43-1.) GEFT's lease required it to erect a digital billboard within one year of the effective date of the lease; the lease was terminated as a result of the denial of the variances. (Lee Aff. ¶¶ 13-15, ECF No. 95-1.)
GEFT sued the City, alleging that the Ordinance constitutes an unlawful content-based regulation and an unlawful prior restraint in violation of the First Amendment. The parties' cross-motions for summary judgment are before the Court for ruling.
II. Discussion
A. Legal Standard
Summary judgment is appropriate if the moving party shows there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). When deciding cross-motions for summary judgment, the court reviews the evidence and draws all reasonable inferences "in favor of the party against whom the motion under consideration is made." Dunnet Bay Constr. Co. v. Borggren, 799 F.3d 676, 688 (7th Cir. 2015).
B. Standing
GEFT argues that the Ordinance violates the First Amendment in two ways: (1) the Ordinance is an improper content-based regulation, and (2) the Ordinance amounts to a prior restraint that vests unbridled discretion in the government officials making permit and variance decisions and lacks procedural safeguards.
The Court first considers GEFT's standing because that is jurisdictional. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ("[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III."). Standing contains three elements: (1) an injury in fact, (2) fairly traceable to the defendant's challenged conduct, and (3) likely to be redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, 578 U.S. 330, 338, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) (citations omitted).
GEFT brings a facial First Amendment challenge to the City's Ordinance. Such challenges lie where a statute "substantially suppresses otherwise protected speech vis-à-vis its plainly legitimate sweep." Bell v. Keating, 697 F.3d 445, 456 (7th Cir. 2012) (cleaned up). "Facial challenges to overly broad statutes are allowed not primarily for the benefit of the litigant, but for the benefit of society—to prevent the statute from chilling the First Amendment rights of other parties not before the court." Secretary of State of Md. v. Munson, 467 U.S. 947, 958, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984).
Still, a plaintiff must have standing to facially attack a statute. Harp Advert. Ill., Inc. v. Village of Chi. Ridge, 9 F.3d 1290, 1291 (7th Cir. 1993). In Harp Advertising, the plaintiff brought a facial challenge to a sign ordinance on First Amendment grounds but failed to challenge size restrictions that would have independently blocked the plaintiff's large sign from being built. Id. at 1291-92. The Seventh Circuit wrote, "[a]n injunction against the portions of the sign and zoning codes that [the plaintiff] has challenged would not let it erect the proposed sign[.]" Id. at 1292. Therefore, the claims failed the redressability prong of standing. Id.
Likewise, in Leibundguth Storage & Van Service, Inc. v. Village of Downers Grove, 939 F.3d 859 (7th Cir. 2019), the plaintiff brought as-applied and facial challenges to a municipality's sign ordinance, claiming that the ordinance was a content-based regulation of speech. Id. at 860. But the plaintiff failed to show that the physical standards its sign violated were impermissible time, place, and manner restrictions. Id. at 862. The Seventh Circuit held that the plaintiff failed to establish that success in the suit would redress the non-compliance of its sign. Id. Although its opinion did not speak in terms of standing, the court wrote, "Leibundguth's problems come from the ordinance's size and surface limits, not from any content distinctions." Id. at 861.
Several courts applying Harp have found that severability of an ordinance is properly addressed during the jurisdictional inquiry for purposes of analyzing the redressability prong of standing. See, e.g., Paramount Media Grp., Inc. v. Village of Bellwood, No. 13-C-3994, 2017 WL 590281, at *6 (N.D. Ill. Feb. 14, 2017), aff'd on other grounds, 929 F.3d 914 (7th Cir. 2019). Thus, the Court considers severability of the challenged portions of the Ordinance to determine whether GEFT has standing.
GEFT argues that the Ordinance is content based and presumptively unconstitutional based on the explicit Exemptions to the permit requirement and the fact that permits are not required for non-commercial signs—what GEFT calls the "Non-Commercial Exemption." According to GEFT, the City of Austin does not alter this Court's prior ruling that the Ordinance was content-based. GEFT is incorrect.
In City of Austin, the Supreme Court considered whether a municipal prohibition on off-premises signs and billboards constituted a content-based regulation. The Fifth Circuit held that the regulation was content based because it required officials to read the sign. The Supreme Court reversed, explaining that a regulation of speech is content based and subject to strict scrutiny only "if it 'target[s] speech based on its communicative content'—that is, if it 'applies to particular speech because of the topic discussed or the idea or message expressed.' " 142 S. Ct. at 1471 (quoting Reed v. Town of Gilbert, 576 U.S. 155, 163, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015)). Because the city's on-/off-premises distinction "require[d] an examination of speech only in service of drawing neutral, location-based lines," the Court concluded that the distinction was content neutral, absent a content-based purpose or justification. Id. The Supreme Court treated the on-/off-premises distinctions as ordinary time, place, or manner restrictions, subject to intermediate scrutiny. Id. at 1471-73. The Seventh Circuit applied City of Austin in Adams Outdoor Advertising Limited Partnership v. City of Madison, 56 F.4th 1111, 1119-21 (7th Cir. 2023) (affirming grant of summary judgment for city on grounds that ordinance banning digital displays was subject to intermediate scrutiny and did not violate First Amendment), and GEFT Outdoor, LLC v. City of Westfield, 39 F. 4th 821, 824-25 (7th Cir. 2022) (concluding that the off-premises ban in city's sign ordinance was not a facially content-based speech restriction).
City of Austin requires reconsideration of this Court's prior conclusion that the on/-off premises distinction is content based, subject to strict scrutiny. The Court's prior conclusion is, in light of City of Austin, "unsound." Adams, 56 F.4th at 1120. Applying City of Austin, then, the Court concludes that the on-/off-premises distinctions in the Sign Standards are content neutral. The Court's prior conclusion that GEFT had standing to challenge the Sign Standards as a content-based regulation of speech hinged on the determination that the on-/off-premises distinctions were content based. (Entry on Cross-Motions for Summ. J. 14-15, 16, ECF No. 122.) So, now, the Court must revisit its conclusion regarding GEFT's standing.
The prior ruling on the Exemptions remains applicable. Even if content based, the Exemptions are severable from the rest of the Ordinance. (Entry on Cross-Motions for Summ. J. 11-14, ECF No. 122.) The Court's prior analysis and reasoning are incorporated here. GEFT further asserts that the so-called Non-Commercial Exemption is content based. Even if so, like the express Exemptions, such an exemption would be severable. (See id.)
Like the plaintiff in Leibundguth, GEFT's inability to erect its proposed billboard come from the Ordinance's size and other physical restrictions, "not from any content distinctions." 939 F.3d at 861. And unlike the Leibundguth plaintiff, GEFT has not challenged those size and other physical restrictions. Instead, GEFT is like the plaintiff in Harp who failed to challenge size restrictions that would have independently blocked its sign from being built. 9 F.3d at 1291-92. GEFT's challenge to the Ordinance as an unconstitutional content-based regulation on speech therefore fails the redressability prong of standing. See id. The content-based provisions of the Sign Standards do not affect GEFT and do not prohibit GEFT from constructing its billboard. Even if those portions of the Ordinance were unconstitutional, GEFT still would not be able to erect its proposed billboard because the physical standards prevent it from doing so.
GEFT maintains that Leibundguth is distinguishable because the plaintiff there only sought to display commercial speech, whereas GEFT seeks to display on its billboard both commercial and non-commercial speech. When a regulation affects both, GEFT says, standing is analyzed differently. As a result, GEFT argues it has standing to assert the rights of non-commercial speakers affected by the Exemptions and/or the Non-Commercial Exemption.
The Court is unpersuaded. As the district judge in Leibundguth said: "The overbreadth doctrine is designed to give a litigant, who has been injured under one provision of an ordinance, standing to bring a facial challenge to vindicate the constitutional rights of another litigant not currently before the court who may also have been injured under that same provision." Peterson v. Village of Downers Grove, 150 F. Supp. 3d 910, 933 (N.D. Ill. 2015) (citing Alexander v. United States, 509 U.S. 544, 555, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993)) (emphasis added), aff'd, Leibundguth Storage & Van Service, Inc. v. Village of Downers Grove, 939 F.3d 859 (7th Cir. 2019). The Exemptions do not prevent GEFT from erecting its billboard; nor would they prevent non-commercial speakers from putting up a sign. That prohibition is found in the height, size, and other physical restrictions in the Sign Standards that go unchallenged by GEFT.
The Exemptions and Non-Commercial Exemption, if unconstitutional, can be severed from the remainder of the Ordinance. As a result, neither GEFT nor any other non-commercial speaker would be affected by the severed provisions. GEFT still would not be able to put up its proposed billboard. Even exempt signs must comply with the objective, physical standards such as height and size restrictions in the Ordinance, and GEFT's proposed billboard does not. Accordingly, the Court determines that GEFT lacks standing to challenge the Ordinance as an unconstitutional content-based regulation of speech.
The Court reaffirms its determination that GEFT has standing to challenge the permitting and variance provisions as unconstitutional prior restraints and incorporates its reasoning here. (See Entry on Cross-Motions for Summ. J. 15-16, ECF No. 122.)
But if GEFT has standing, the Court would find that the height, size, and other physical restrictions (applying to both commercial and noncommercial speech) that prevented GEFT from erecting its billboard were content-neutral, time, place, and manner regulations subject to intermediate scrutiny under the First Amendment. See, e.g., City of Austin, 142 S. Ct. at 1475-76 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)) (concluding the government may impose content-neutral time, place, or manner restrictions on speech if the restrictions "are narrowly tailored to serve a significant governmental interest . . . and . . . leave open ample alternative channels for communication"); Adams Outdoor Advert., 56 F.4th at 1119-21 (noting the Ward standard aligns with the intermediate scrutiny test for commercial-speech regulations applied in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), and Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981)); Leibundguth, 939 F.3d at 862 (holding ordinance limiting the size and location of signs on buildings was "a standard time, place, and manner rule, a form of aesthetic zoning . . . compatible with the First Amendment"). The height, size, and other physical restrictions do not have any relation to the content of the signs; these restrictions are content neutral and intermediate scrutiny applies.
The Sign Standards serve the City's stated goals of promoting traffic safety and aesthetics, and "[i]t's well-established that these are significant governmental interests." Adams Outdoor Advert., 56 F.4th at 1120 (citing Metromedia, 453 U.S. at 507-08, 101 S.Ct. 2882) (holding that "traffic safety and the appearance of the city . . . are substantial governmental goals"). The City need not produce empirical evidence linking billboards to aesthetic or safety-related harms. " '[B]illboards by their very nature . . . can be perceived as an [a]esthetic harm,' . . . and the City 'need not try to prove that [its] aesthetic judgments are right' " Id. (quoting Metromedia, 453 U.S. at 510, 101 S.Ct. 2882, and Leibundguth, 939 F.3d at 862). So, too, "the connection between billboards and traffic safety is too obvious to require empirical proof." Id. ("the presence of overhead signs and banners is bound to cause some drivers to slow down in order to read the sign") (quotation and citation omitted). And the Sign Standards leave open ample alternative channels for communication, including the ability to erect signs such as billboards that comply with the physical restrictions in the standards. GEFT could erect a smaller, compliant sign in a slightly different geographical location yet still within sight of travelers on I-69.
C. Prior Restraint
GEFT argues that the City's permitting and variance scheme is a prior restraint on speech that lacks the substantive and procedural safeguards required. The City responds that the decision to grant or deny a permit is based on objective standards and is ministerial and that the variance process is not an unconstitutional prior restraint.
"The term 'prior restraint' is used to describe 'administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.' " Samuelson v. LaPorte Cmty. Sch. Corp., 526 F.3d 1046, 1051 (7th Cir. 2008) (quoting Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993)). "A restriction is a prior restraint if it meets four elements: (1) the speaker must apply to the decision maker before engaging in the proposed communication; (2) the decision maker is empowered to determine whether the applicant should be granted permission on the basis of its review of the content of the communication; (3) approval of the application requires the decision maker's affirmative action; and (4) approval is not a matter of routine, but involves 'appraisal of facts, the exercise of judgment, and the formation of an opinion' by the decision maker." Id. at 1051-52 (quoting Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 554, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) and citing Thomas v. Chicago Park Dist., 534 U.S. 316, 321, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940)); see also Dye v. City of Bloomington, Ind., 580 F. Supp. 3d 560, 572 (S.D. Ind. 2022). The concern underlying the prior restraint doctrine is censorship by the decisionmaker based on content or viewpoint. Thomas, 534 U.S. at 320-21, 122 S.Ct. 775; Southeastern, 420 U.S. at 559, 95 S.Ct. 1239.
In its prior summary judgment ruling, this Court concluded that the City's sign permitting and variance schemes as applied to sign regulations were a prior restraint; that decision requires reconsideration. In reaching this conclusion, the Court did not consider whether the permitting and variance schemes satisfy the elements of a prior restraint identified in Southeastern and other Supreme Court cases or Samuelson and other Seventh Circuit cases. Instead, the conclusion was premised only on the fact that "[e]xcept as otherwise provided," no sign could be published unless the City first issues a sign permit. Ord., Ch. 18.140.020(B). That fact may be necessary to finding a prior restraint, but it is not sufficient. A restriction must satisfy all elements of a prior restraint. The permitting and variance schemes here do not.
Approval of permit applications has nothing to do with the content of the proposed signs. The permit application does not even ask the applicant for the content of the proposed sign. Approval of a permit application is not subject to any discretion of the decisionmaker. The permit decisionmaker need not decide whether a sign is exempt or non-commercial—neither exempt signs nor non-commercial signs require permits before they may be erected. The only requirements are that the permit application be complete and that the proposed sign comply with the objective physical requirements in the Sign Standards, including size, height, and location. The Sign Standards do not authorize the denial of a permit application based on the content of the proposed sign or the identity of the speaker. In theory, the decisionmaker could deny a permit based on the speaker's identity (which would be known from the variance application) or sign content (if that were disclosed during the variance application process). But "the relevant question is whether the [Sign Standards] authorize[ ] the suppression of speech in advance of its expression." Ward v. Rock Against Racism, 491 U.S. 781, 795 n.5, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); see also Thomas, 534 U.S. at 322, 122 S.Ct. 775 (holding ordinance was a content-neutral and did not have to contain procedural safeguards where the ordinance "does not authorize a licensor to pass judgment on the content of speech" and "[n]one of the grounds for denying a permit has anything to do with what a speaker might say"). The permit requirement here does not.
When a permit application is complete and meets all requirements of the Sign Standards, the permit must be issued within twelve business days after the permit application was filed, as provided by statute. Ind. Code § 36-7-4-1109. The decision whether to approve a permit application—whether applicants receive permission to put up their proposed sign—is not based on the content of that proposed sign or the identify of the speaker. Therefore, the permit scheme is a content-neutral time, place, and manner regulation of speech and is not considered a prior restraint on speech.
The same is true of the variance procedure. The Ordinance does not authorize the Board to deny a variance request based on the content of the sign or the identity of the speaker. GEFT worries that the Board could grant or deny a variance based solely on whether the Board likes or dislikes the content or viewpoint of a proposed sign or the speaker. Although the Board might apply the statutory factors in such a way as to permit whatever speech or speaker it favored and prohibit whatever speech or speaker it disfavored, that risk is not unique to the Ordinance—there is always the risk of unconstitutional application of an ordinance or other law. The mere possibility of unconstitutional application does not make the variance procedure a prior restraint on speech. Thomas, 534 U.S. at 325, 122 S.Ct. 775 (explaining that any potential granting of waivers to favored speakers or denial of waivers to disfavored speakers "must be dealt with if and when a pattern of unlawful favoritism appears"); Forsyth Cnty., Ga. v. Nationalist Movement, 505 U.S. 123, 133-34, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) (noting the ordinance at issue "contains more than the possibility of censorship [of speech] through uncontrolled discretion"). Thus, the procedural protections for content-based prior restrictions announced in Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) are not required.
The Board's denial of GEFT's one variance request fails to raise a reasonable inference of any pattern of unlawful favoritism.
In any event, "prior restraints are not per se unconstitutional." GEFT Outdoor, LLC v. City of Westfield, 39 F.4th 821, 825 (7th Cir. 2022) (quotation omitted). All prior restraints—even content-neutral time, place, and manner regulations—must "contain adequate standards to guide the official's decision and render it subject to effective judicial review." Thomas, 534 U.S. at 323, 122 S.Ct. 775; see also Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (a prior restraint must guide the government's discretion with "narrow, objective, and definite standards"). GEFT argues that the Ordinance lacks any criteria that preclude the danger of content-based discrimination, thus making it an unconstitutional prior restraint.
The Court disagrees. As noted, a permit application must be approved if the application is complete and the proposed sign complies with the physical requirements. There is no exercise of discretion in the permitting decision. And the Board may grant a variance only if it finds that all six of the criteria set forth in the Ordinance are satisfied. Ord., Ch. 18.165.010(B). These criteria narrowly identify the City's standards by which a variance may be granted, including: public health, safety, morals; substantially adverse effect on the use and value of the adjacent area; and practical difficulties in the use of the property. Ord., Ch. 18.165.010(B). While these criteria may be flexible and provide the Board with considerable discretion, they do not vest unbridled discretion in the Board. Unlike the ordinance in City of Lakewood v. Plain Dealer Publishing Co. that contained no explicit, textual limitation on the mayor's authority to grant or deny a permit for news racks on public property and was unconstitutional, 486 U.S. 750, 769-70, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988), the stated criteria in the Sign Standards constrain the Board's exercise of discretion. On reconsideration, the Court concludes that these criteria provide "adequate standards to guide the official's decision and render it subject to effective judicial review." Thomas, 534 U.S. at 322, 122 S.Ct. 775. The Board's variance decision is subject to judicial review, Ind. Code § 36-7-4-1016, and the stated variance criteria provide for effective review of the Board's decision.
Previously, the Court was troubled by the Board's authority to impose "whatever conditions or limitations" it finds "necessary to protect adjacent properties and the surrounding neighborhood and effectuate the purposes of the Ordinance. Ord., Ch. 18.165.010(D). But this is not unfettered discretion like the mayor's discretion in granting a permit to impose "such other terms and conditions [he] deemed necessary and reasonable" in City of Lakewood, 486 U.S. at 769-70, 108 S.Ct. 2138. Rather, the Board's authority is cabined by the "necessary to protect" language as well as the "effectuate the purposes of language, and the purposes of the Ordinances are clearly stated and definite. On reconsideration, the Court believes that the permitting and variance schemes survive constitutional challenge.
GEFT has not established that the permitting and variance schemes constitute unconstitutional prior restraints on speech. Accordingly, the City will be granted summary judgment on its First Amendment prior-restraint claim in Count II.
D. The Injunction
The City moves to vacate and dissolve the Permanent Injunction. GEFT opposes the motion.
As Chief Judge Pratt recently wrote: "The test for determining whether to modify or vacate an injunction is whether the conditions that made the injunction appropriate have changed to such an extent that the injunction no longer serves the purpose for which it was initially granted." Geft Outdoor, L.L.C. v. City of Westfield, Hamilton Cnty., No. 1:17-cv-04063-TWP-TAB, 2022 WL 3541867, at *2 (S.D. Ind. Aug. 18, 2022) (citing United States v. Swift & Co., 286 U.S. 106, 118-19, 52 S.Ct. 460, 76 L.Ed. 999 (1932)). "Courts consider 'whether [the movant] has demonstrated that changed circumstances make the continuation of the injunction inequitable.' " Id. (quoting Winterland Concessions Co. v. Trela, 735 F.2d 257, 260 (7th Cir. 1984)).
This Court's Permanent Injunction was premised upon the Court's conclusions that the Sign Standards are: (1) a content-based regulation of speech that fails strict scrutiny and (2) an impermissible prior restraint on speech. On reconsideration in light of the Supreme Court's recent decision in City of Austin and for the other reasons articulated in this Entry, that conclusion was in error. The Court's judgment has been reconsidered and the Court now finds in favor of the City on GEFT's First Amendment claims. Applying the injunction going forward would be inequitable. Thus, to do anything short of vacating the injunction would be an abuse of the Court's discretion. The City's Motion to Vacate and Dissolve the Injunction, (ECF No. 167), is granted and the Permanent Injunction, (ECF No. 123), is vacated.
III. Conclusion
GEFT's Amended Motion for Summary Judgment, (ECF No. 162), on the claim that the City's Ordinance violates GEFT's First Amendment rights is denied; the City's Amended Motion for Summary Judgment, (ECF No. 165), is granted; and the City's Motion to Vacate Permanent Injunction, (ECF No. 167), is granted. The Order Entering Permanent Injunction, (ECF No. 123), issued December 13, 2021, is hereby vacated.
SO ORDERED.