The Indiana Court of Appeals has upheld a ruling to dismiss complaints filed by Burkhart Advertising against the City of Kokomo following a yearslong legal battle over its billboards.
In May 2013, the city amended its zoning ordinance to ban all billboards from being erected unless they were placed on the property of the business which they advertised.
The ban did not effect billboards that had already been constructed unless the city’s Plan Commission director determined they were “dilapidated, decayed, or in rotten condition,” and had become dangerous to public or private safety.
On Nov. 17, 2013, the tornados that tore through the city damaged eleven of Burkhart’s Kokomo-area billboards. Four days later, the city notified Burkhart that those billboards had become dilapidated and were in violation of the new zoning ordinance.
Shortly afterwards, the city provided Burkhart with a list of signs that they alleged no longer complied with the zoning ordinance.
Burkhart and the city then negotiated and reached an agreement to work towards implementing legislation that would allow companies like Burkhart to remove some of their signs while upgrading others.
In the meantime, the city agreed not to cite Burkhart for any violations of the zoning ordinance.
However, efforts to reach an agreement on the new legislation stalled and was never passed in Kokomo. In January 2017, the city informed Burkhart that the planned update to the zoning ordinance was not a priority.
The city soon requested that Burkhart remove one of its billboards, but he refused to do so. The city then notified the company of violations relating to four of its billboards, and informed Burkhart that it would be fined $2,000 per day for each sign if it didn’t remedy the violations.
Burkhart filed an appeal with the Board of Zoning Appeals arguing the billboards didn’t violate the ordinance and shouldn’t be fined. The Board denied the appeal and ruled in favor of the city in January 2019.
Burkhart filed a complaint and verified petition for judicial review of the BZA decision in Howard Superior Court II. The filling listed nine complaints against the BZA.
The city filed a motion to dismiss Burkhart’s complaint. Judge Brant Parry ended up dismissing seven of the counts because Burkhart failed to file the certified copy of the BZA record in its complaint filing, which violates state code.
Burkhart appealed the decision, saying it filed a certified copy of the administrative record with its complaint.
The Court of Appeals last month ruled the administrative record was not the same as the BZA record, and upheld the dismissal of the seven counts.
However, three counts filed in Burkhart’s complaint were not dismissed and still stand in court.
One count alleges when the city issued citations on the signs, it breached its contractual agreement saying it wouldn’t issue citations while it worked towards new legislation.
The two other counts allege the billboard ban is unconstitutional, violating the First and Fourteenth Amendment. The complaint argues the ban violates the Fourteenth Amendment specifically due to the city’s zoning ordinance “use of vague, undefined terms like ‘obsolete,’ ‘dilapidated,’ and ‘decayed.’”