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7th Circuit: No due process violations against rejected billboard company

April 26, 2019

The 7th Circuit Court of Appeals has affirmed the denial of a digital billboard company’s motion for preliminary injunction against the City of Westfield, finding its due process rights were not violated when the city ordered construction on a billboard to stop.

Billboard company GEFT Outdoors, LLC received immediate opposition from the City of Westfield when it began building a digital billboard on property it leases in Westfield in November 2017, without a first obtaining a sign permit pursuant to city ordinance. Westfield sign standards requires permits for most signs and prohibits 12 types of signs entirely, including “off-premise” signs and “pole” signs.

Violations of these standards are considered common nuisances, which can result in the issuance of a “stop work” order. Such an order was issued to GEFT, which received the order after it began construction.

One day after breaking ground, GEFT sued the city in the Indiana Southern District Court, challenging two portions of the Westfield’s sign standards, the permit exceptions and the off-premises ban, as unconstitutional content‐based speech restrictions it argued rendered the ordinance non-existent.

Meanwhile, the city issued stop work orders and physically appeared on site demanding an end to the construction, to no avail. But GEFT halted its construction after the city’s contract attorney threatened to arrest GEFT’s representatives if work continued, resulting in both parties filing preliminary injunction motions.  

Southern District Court Judge Tanya Walton Pratt ultimately ruled in favor of the city. In that decision, Pratt found GEFT had not shown it was reasonably likely to succeed on the merits of its claim and ordered the company to refrain from installing the billboard until the case regarding the ordinance was resolved. Pratt also found a preliminary injunction in GEFT’s favor was unwarranted “based upon the timing and procedural history of GEFT’s and Westfield’s legal steps taken.”

GEFT later set aside its issue of the constitutionality of Westfield’s sign standards, arguing instead before the 7th Circuit that its due process rights were violated when the city stopped it from finishing construction.

But the appellate court rejected that argument in GEFT Outdoors, LLC v. City of Westfield, 18-3236, finding the billboard company was not entitled to its requested preliminary injunction based on its procedural due process claims.

There, the 7th Circuit found the city’s failure to list certain requirement information in its stop work order did not render the order unenforceable. It also noted the stop work notices could not have deprived GEFT of its property because construction ceased as a result of arrest threats, not the issued order.

“Even if the Stop Work Notices themselves halted further work on the Billboard, and assuming this work stoppage ‘deprived’ GEFT of its leasehold interest, GEFT’s only complaint about these notices is that they did not comply with the (unified developed ordinance’s) requirements,” Judge Joel Flaum wrote. “But there is no constitutional procedural due process right to state‐mandated procedures.”

The 7th Circuit also found the company’s substantive due process claims had no likelihood of succeeding on the merits, noting that although the threats of arrest were “certainly inappropriate” because Indiana law does not provide a basis to arrest someone for violating a municipal ordinance, the threats were “a far cry from the type of conduct recognized as conscience shocking.”

The 7th Circuit further found the district court did not abuse its discretion when faced with a situation where GEFT invoked the court’s power over its dispute with Westfield, and then unilaterally acted in violation of a still‐valid ordinance. Thus, in addressing Westfield’s claims, the 7th Circuit found no abuse of discretion in enjoining GEFT from continuing construction until the court had ruled on the sign permit issue and affirmed the district court’s ruling in favor of Westfield.

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