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ATTORNEYS FOR APPELLANT Anthony W. Overholt Jeffrey S. McQuary Office of Corporation Counsel Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Alan S. Townsend George T. Patton, Jr. Paul D. Vink Indianapolis, Indiana

________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 49S05-0511-CV-510 METRO. DEV. COMM'N OF MARION COUNTY, ET AL., Appellant (Defendant below), v. PINNACLE MEDIA, LLC, Appellee (Plaintiff below). _________________________________ Appeal from the Marion Superior Court, No. 49D02-0201-PL-000078 The Honorable Kenneth H. Johnson, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 49A05-0309-CV-465 _________________________________ November 3, 2005 Sullivan, Justice.

Pinnacle Media, LLC, seeks a declaration that a change in the zoning ordinance of the City of Indianapolis concerning billboard location permits is not applicable to its plan to erect 10 billboards in Indianapolis. Because no construction or other work that gave Pinnacle a vested interest in the billboard project had begun on the billboards at the time of the ordinance change, the ordinance change did apply to the 10 billboards.

Background

Pinnacle Media, LLC, erects and leases advertising billboards. In July, 1999, after some period of discussion, the City of Indianapolis advised Pinnacle in writing that the City's billboard location permit regulation did not apply with respect to billboards proposed to be erected in interstate highway rights-of-way because those rights-of-way were not covered by the City's zoning ordinance.

Pinnacle thereupon embarked on a plan to erect billboards without applying to the City for a permit. Its plan consisted of three steps. First, it would lease land for this purpose from Hoosier Heritage Port Authority, an entity that owned abandoned railroad rights-of-way at points where the abandoned railroad rights-of-way intersected with or were otherwise coextensive with interstate highway rights-of-way. Second, it would seek permits from State government, specifically, the Indiana Department of Transportation ("INDOT"), which is responsible for interstate highways. Third, it would erect the billboards without seeking any approval from the City. Following this plan, Pinnacle erected two billboards in 1999, after leasing rights-of-way and obtaining INDOT permits.

Shortly thereafter, Pinnacle initiated efforts to erect 15 additional billboards by securing additional leases and submitting additional applications to INDOT. The last of these applications was submitted on April 19, 2000. A period of negotiation with the State followed during which INDOT initially denied all 15 of the applications. Pinnacle appealed the denials and ultimately entered into a settlement with the State. Well over a year later, on June 18, 2001, INDOT approved 10 of the applications and Pinnacle abandoned its request for the other five in accordance with the settlement.

Meanwhile, following the erection of the two initial billboards, the City reexamined its policy in respect of excluding interstate highway rights-of-way from the coverage of its zoning ordinance. On April 26, 2000, the City officially proposed an amendment to this effect to its zoning ordinance. Pinnacle and other interested parties received notice of the proposed amendment on April 28, and were given the opportunity

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to appear at a public hearing on the matter on May 17. On July 10, 2000, the CityCounty Council enacted into law an amendment to the zoning ordinance, assigning zoning classifications to the previously un-zoned land occupied by interstate highways. Indianapolis/Marion County Rev. Code

Download Metropolitan Development Commission of Marion Co., et al v. Pinnacle Media, LLC.

Indiana Law