Seventh Circuit Upholds Sign Code Variance Procedure

This post was written by Julie Tappendorf and Tyler Smith of Ancel Glink and originally posted on Municipal Minute and reposted with permission.

The Seventh Circuit Court of Appeals recently ruled against billboard companies in a First Amendment challenge to county sign codes. GEFT Outdoors, LLC v. Monroe County.

A billboard company attempted to install digital signage that did not comply with local signage regulations. The company filed a variant from the District Zoning Appeals Board (BZOA). After the BZOA rejected a variance request, the billboard company sued the county under a First Amendment challenge claiming that the sign code contained unconstitutional content-based restrictions on speech, and that the sign code clearance and variance procedures were unconstitutional “prior restraints” on speech. . . The federal district court issued an injunction preventing the county from enforcing parts of its code of signatures, including the permitting and variance procedures. However, the district court ruled that the challenged code mark provisions were “separable” from other mark codes and upheld the content-neutral provisions of the district mark codes.

On appeal, the county challenged the district court’s ruling that the coded variance procedure was a previously disallowed restraint on speech because the BZOA has broad discretion in making decisions to grant or deny the requested variance. The Seventh Circuit Court of Appeals ruled in favor of the county, finding the variance procedure a previous restraint allowed to speak. The Seventh Circuit also vacated an injunction blocking the county from enforcing its variant zoning procedure.

The Seventh Circuit also found that billboard companies had many alternatives to speak out (can post signs that adhere to sign code-neutral content restrictions), and that variance procedures presented a low risk of censorship by the BZOA.

Finally, the Seventh Circuit upheld a district court ruling that the contested licensing provisions of the flag code could be separated under Indiana state law. Because the sign code licensing provisions can be separated from other sign codes, the Seventh Circuit enforced the remainder of the content-neutral regulations in the area sign codes and sent the case back to the district court for further proceedings.

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