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Tuesday, November 15, 2005

Ind. Decisions - More on City orders billboards down by Dec. 10

Following up on the ILB entry from 11/10/05 on the Indiana Supreme Court ruling 11/3/05 in Metropolitan Development Commission of Marion Co., et al v. Pinnacle Media, Jon Ketzenberger writes today in the Indianapolis Star, in a column titled "Billboard battle still showing signs of life," that:

Pinnacle Media doesn't think the high court understood the implications of its decision, which could make it easier for government to nix projects already out of the starting gate. "There is a lot more to this than just 10 signs," said Philip Nicely, an attorney and part-owner of Pinnacle.

Attorneys for the company will ask the court to reconsider its decision because they believe it erodes a 46-year-old precedent that protects landowners' rights to proceed with construction once they've received government permission. But Pinnacle's permission came from the state, not the city. That distinction has been the source of much consternation for city leaders who thought Pinnacle was trying to go around them.

Still, the court's ruling "opens the door to change the rules of the game on a landowner prior to the landowner's project coming out of the ground," said Zeff Weiss, a real estate attorney with Ice Miller.

In 1999, Pinnacle received permission from the Indiana Department of Transportation to build two signs near the I-69/465 interchange. It didn't need city permission because the signs were on former public rights of way that weren't zoned. The company sought permission to build 15 more signs -- and that's when the fight began.

A week after the applications were made in April 2000, the city began the process of changing its zoning ordinances to forbid the billboards. By the time state approval was granted for 10 signs in July 2001, the new city rules were in place. Pinnacle went ahead with construction, and the battle entered the courts. Pinnacle won the first two rounds, and then the Supreme Court ruled in the city's favor.

The court said zoning ordinances can be changed as long as construction on a project hasn't actually begun. Leaning on its state permits, Pinnacle didn't erect its signs until after the city had banned them.

The ruling puts Indiana law on par with "most of the rest of the country," said Kobi Wright, the city's attorney. If a developer "sat on his rights and the zoning laws change, then that (development) right never vested," Wright said.

Pinnacle has until Dec. 5 to ask the high court to rehear the case. Company attorney Alan Townsend understands his chances for victory are slim. The Supreme Court has only agreed to rehear one civil case in the last two fiscal years for which information is available.

And another point: The Supreme Court's ruling earlier this month was unanimous.

Posted by Marcia Oddi on November 15, 2005 07:58 AM
Posted to Ind. Sup.Ct. Decisions