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Seventh Circuit Upholds Sign Code Variance Procedure

This post was authored by Julie Tappendorf and Tyler Smith of Ancel Glink and originally posted in the Municipal Minute and reposted with permission

The Seventh Circuit Court of Appeals recently ruled against a billboard company in its First Amendment challenge to a county’s sign code. GEFT Outdoors, LLC v. Monroe County.

A billboard company sought to install a digital billboard which did not comply with the county’s sign code regulations. The company applied for a variance from the County’s Board of Zoning Appeals (BZOA). After the BZOA denied the variance request, the billboard company sued the county under a First Amendment challenge claiming the sign code contained unconstitutional content-based restrictions on speech, and that the sign code’s permit procedures and variance procedures were unconstitutional “prior restraints” on speech . The federal district court issued an injunction preventing the county from enforcing sections of its sign code, including the permit and variance procedures. However, the district court determined that the challenged provisions of the sign code were “severable” from the rest of the sign code and upheld the remaining content-neutral regulations of the county’s sign code.

On appeal, the county challenged the district court’s ruling that the sign code’s variance procedures were an impermissible prior to restraint on speech because the BZOA had broad discretion in making decisions to grant or deny a requested variance. The Seventh Circuit Court of Appeals ruled in favor of the county, finding the variance procedures to be a permissible prior to restraint on speech. The Seventh Circuit also vacated the injunction that blocked the county from enforcing its zoning variance procedures.

The Seventh Circuit also found that the billboard company had ample alternatives for speech (it could install a sign that complied with the sign code’s content-neutral restrictions), and that the variance procedures presented a low risk of censorship by the BZOA.

Finally, the Seventh Circuit upheld the district court’s ruling that the challenged permitting provisions of the sign code were severe under Indiana state law. Since the sign code’s permitting provisions were severable from the rest of the sign code, the Seventh Circuit upheld the remainder of the content-neutral regulations in the county’s sign code and sent the case back to the district court for further proceedings.

GEFT Outdoors, LLC v. Monroe County, 62 F. 4th 321 7th Sir CA 3/9/2023)