Ballard May Have To Face Showdown On Billboards

It didn't have to be this way, but as a result of last-minute maneuvering at the end of the Peterson administration, Mayor Greg Ballard will have to decide if 10 billboards that Pinnacle Media erected years ago without city approval will have to finally be torn down. The Marion County Environmental Court has already ordered the company to tear down the 10 billboards it constructed along the city's interstate highways inside the I-465 loop nearly 7 years ago. The Indiana Supreme Court on three separate occasions blocked legal attempts by the company to avoid a 7-year-old city ordinance barring the signs. A compliance hearing originally scheduled for today to confirm the company had complied with an earlier court order and removed the billboards, however, has been extended until next Wednesday, January 9, with the concurrence of the City's corporation counsel office and the Ballard transition team.

Tom Williams of Citizens Against Billboard Blight is disturbed by the latest turn of events in this long-raging community interest battle against the billboard company. He complains that someone within the Ballard transition team agreed to the move to defer the compliance hearing until next week. According to Williams, the 10 signs in question have still not been torn down, and he fears the owners may believe they have a more supportive mayor in Greg Ballard. Outgoing Corporation Counsel Kobi Wright directed city attorneys to concur with a request to provide the billboard owners another week on their hearing. Pinnacle is represented by Allen Townsend, an attorney with Bose McKinney. Wright formerly worked for Bose McKinney before becoming Corporation Counsel. He departed his position at the end of the year and is being replaced by a member of the Daniels administration, Chris Cotterill.

After Pinnacle's third attempt in the courts to save the billboards failed, the company faced an October order to remove the sign faces and tear down the structures within 30 days. At a compliance hearing on November 26, 2007, the court ordered Pinnacle to remove all advertising from the signs no later than December 1, 2007. The court denied a request by Pinnacle to delay the effective date of the order until the end of January, 2008 to provide the company additional time to find a buyer for the signs. It set a compliance hearing at that time for January 2, 2008. The Court made it clear Pinnacle could face sanctions if the structures and faces were not removed by today's date.

It is now apparent that Pinnacle is not at all willing to accept defeat. Quite to the contrary, the company, according to City-County Council sources, initiated efforts through Marion Co. GOP Chairman Tom John, an attorney, to fast-track a proposed ordinance at the end of last year, which would have grandfathered-in Pinnacle's 10 billboards, through the council prior to the January 2 hearing date. Sources say John originally approached Councilors Lance Langsford (R) and Jackie Nytes (D) to sponsor the ordinance. Although Langsford originally agreed to sponsor the ordinance proposal, he later withdrew his sponsorship after he heard from concerned community activists, and Nytes never agreed to sign on. Scott Schneider, who like Langsford did not seek re-election to his council seat, agreed to sponsor the proposal.

Members of the City-County Council received unusual letters from two Republican state representatives lobbying for passage of the Pinnacle ordinance. On November 30, 2007, Rep. David Wolkins (R-Winona Lake) wrote to councilors asking them to adopt Schneider's proposed ordinance "as a means of implementing Indiana Code 36-7-4-1109 and as a means of acknowledging the property rights of Pinnacle Media." Referring to the legislative enactment as the "Pinnacle Bill," he explained that he sponsored the bill because he believed the Indiana Supreme Court had "overturned the long standing recognition that 'property rights' vest with respect to permitted uses of property at the time a property owner applies for any required permit" in Metropolitan Development Commission v. Pinnacle Media, LLC, 836 N.E.2d 422 (Ind. 2005). He continued, "The Pinnacle Bill was the general assembly's attempt to quickly overturn this judicially adopted and very vague, 'property rights' standard with respect to permitted uses of property." Days later, Rep. Phyllis Pond (R-New Haven) followed up Wolkins' letter with one of her own lobbying for passage of the Schneider proposal. "There seems to be some misunderstanding, as the intention of the General Assembly in adopting this statute was to finally resolve the Pinnacle litigation," she wrote. "I encourage the City-County Council to adopt this proposed ordinance . . . " Despite the lawmakers' pleas on Pinnacles' behalf, the Rules & Public Policy Committee tabled the ordinance last month in the face of opposition from the Peterson administration and community activists.

By way of explanation, Pinnacle Media first sought to exploit a loophole in Indianapolis' billboard ordinance back in 1999. An older version of the city's ordinance did not regulate placement of billboards along interstate highways within the County. As Pinnacle began leasing property rights along abandoned railroads from the Hoosier Heritage Port Authority and applying with the state's Department of Transportation for a permit to erect billboards, the City-County Council adopted an ordinance in 2000, which extended the city's ordinance to include interstate right of ways. The state initially turned down 15 requested permits for the company but later reached a settlement allowing the company to construct 10 billboards. When the company began constructing billboards in the county without seeking permits from the city, the Department of Metropolitan Development placed stop work orders on their construction, which began the battle that has continued to this date. Despite the city's opposition, the company constructed and built all 10 billboards, which have been in use all these years.

Pinnacle won first legal rounds against the city at the trial court level and the Court of Appeals, but the Supreme Court overturned those decisions, holding that Pinnacle had no vested property rights "where no work has been commenced, or where only preliminary work had been done." 836 N.E.2d at 429-30. Pinnacle petitioned the Supreme Court for rehearing, and while the matter was still pending, succeeding in obtaining passage of the so-called Pinnacle Bill sponsored by Rep. Wolkins. [Note, I found no evidence anyone filed a registration with the state's Lobby Registration Commission on behalf of Pinnacle to lobby for this special legislation]. In a second opinion, the Supreme Court sustained its earlier ruling and refused to apply the new statutory enactment to Pinnacle's benefit, noting that there was "nothing in the legislation evidencing an intent on the part of the Legislature that it have retroactive effect." In yet a third attempt, Pinnacle tried unsuccessfully to avoid summary judgment as ordered by the Supreme Court by amending its original complaint. The trial court and the Court of Appeals ruled that the doctrine of res judicata barred Pinnacle's new claims, and the Supreme Court denied transfer of the case.

While all this litigation was in process, Pinnacle Media sold its assets to Lamar, one of the nation's largest billboard companies, for approximately $10.4 million on June 25, 2004, according to documents Lamar filed with the SEC. A source tells me that a substantial amount of the purchase price was escrowed, pending the final resolution of the litigation pertaining to the 10 Indianapolis billboards. The source says the escrowed amount will be retained by Lamar if the company is not allowed to maintain the billboards; however, Pinnacle turned over management of the signs to Lamar as soon as the sale went through. Interestingly, in documents filed by Pinnacle's attorneys with the Court, Pinnacle urged the Court to give it more time because it no longer had any equipment to remove the signs or facilities to store signs. That may be the case, but Lamar, which is also now a party in the litigation, does have the equipment and facilities. One source conservatively estimates that the billboards in question generate at least $2 million in revenues annually. That gives you an idea how much money is on the line here for Pinnacle and Lamar.

The Ballard administration officially began its first full work day today following his noon inauguration yesterday. Opponents fear Pinnacle, through Tom John, will exert influence on the Ballard administration to reverse the city's long-standing opposition to the billboards. The opponents note that Pinnacle's owner, Phil Nicely, has been a generous contributor to Republicans. He contributed at least $8,500 to Gov. Mitch Daniels' campaign over the past several years, and he made a $1,000 contribution to the Greater Indianapolis Republican Finance Committee on September 10, 2007. An employee of John's firm, John Cochran, has been named special counsel to Mayor Ballard. A former colleague of John's at the Secretary of State's office, Paul Okeson, is the Mayor's new chief of staff. And John is believed to have close ties to the new Corporation Counsel, Chris Cotterrill, who will have the job of instructing city attorneys on how to deal with the matter at next week's compliance hearing.

Opponents fear that Pinnacle's supporters will reintroduce the grandfathering ordinance at next week's first council meeting on January 7, two days before the compliance hearing. I spoke to CCC President Bob Cockrum this afternoon about the matter. He is quite familiar with the proposal as he was present at the Rules and Public Policy Committee last month when the Schneider proposal was tabled. Cockrum told me that he had not been contacted by John about the ordinance, and that he had not been advised by any members of an effort to reintroduce the proposal.

In Pinnacle's request for an additional week, it told the Court it "needs additional time to finalize its plans to remove the ten outdoor signs," but it knew at the Court's November 26, 2007 hearing in this matter it was expected to have that accomplished no later than today to avoid sanctions. If the one-week continuance of the compliance hearing had not been granted, the city's attorney would have shown up in Court today asking the Court to find Pinnacle in contempt of its earlier order for failing to remove the billboards. Because of the continuance, the Ballard administration has waded into a controversy the opponents rightfully felt they had finally won fair and square. The city has spent countless time, energy and expense protecting our city's neighborhoods from the blight posed by these billboards. Why would anyone want to throw all of that away to benefit a wealthy campaign contributor who, unlike most property owners, has a deep pocket to game the legal system. As one of the city's attorney's argued in a legal brief, it is time to bring an end to "this unrelenting and unnecessary . . . litigation."

Mayor Ballard has no choice but to make a decision in this matter now. If he believes in being a partner with the neighborhoods as he pledged during the campaign, he'll tell Pinnacle the game is over and demand one hundred percent compliance with the order the city fought all these year to attain on behalf of the city's neighborhoods. If he or the Republican-controlled council chooses any other course, they will deservedly raise the ire of MCANA and risk losing the good will he brings to office with him. I, for one, am confident Mayor Ballard will make the right decision.