Comments on Advance Indiana™: Ballard May Have To Face Showdown On Billboards

I'm surprised that no one has pointed out that the...

2008-01-07T13:54:00.000-05:00

I'm surprised that no one has pointed out that the "Hoosier Heritage Port Authority" is a creation of Hamilton County, Noblesville, and Fishers. Does that change anyone's view of what's happening?

Why is everyone so married to the idea that every ...

2008-01-05T00:04:00.000-05:00

Why is everyone so married to the idea that every disagreement, every legal case, every situation of differing opinion is automatically Democrat vs. Republican? It's absurd.

Aside from that, I would strenuously challenge the characterization implied by Anon 1154 that IN property rights as being a “long standing rule that property rights vest upon applying for any necessary permit”. That is simply not the case. In fact, that is what the simple-minded legislature changed it to – radically changing property rights law in Indiana forever; giving Indiana one of the most anti-home-rule atmospheres in the nation.

For people not familiar with property rights and the state legislature’s response to Pinnacle, I’ll use the gas pump and gas prices as a parallel comparison to illustrate the new property rights legislation: under this property rights scheme of logic, if you bought a car and got tags to drive that car in 2001, you would be vested for 3 years and that vesting would freeze EVERYTHING – all rules, prices, etc. – so you should be entitled to 2001 gas prices, speed limits, insurance, EVERYTHING! But wait, this luxury only applies to those developing land - - sorry. Let’s apply this logic, this fairness and this ‘right thing’ to another real world scenario: medical insurance. Consumer buys insurance in 2006; consumer gets sick in 2006; cure is developed in 2007; oops – sorry, insurance company says we are not paying because for 3 years, all rules, etc are frozen to 2006 protocols. This all seems absurd, right? It is absurd. It is absurd to think that Indiana passed a law that says that if a developer (or billboard company) sends in a letter stating that they are intending to do something, that the rules are frozen for 3 years. That’s absurd.

If a community wants to exercise its RIGHT to rule itself and legally pass an ordinance to regulate how they want their community to be, they are HOG-TIED for 3 years! And you call that “the fair and right thing” – I certainly do not.

Developers capitalize on communities (read: markets), but they resent the idea that property is NOT an isolated commodity but rather a part of a community; they resist the idea that every piece of property affects its surrounding properties and beyond. That very community has a recognized RIGHT to regulate itself.
The Indianapolis community has been clear and consistent for the past 4 decades in its direction and desire on the issue of billboards: No Thank You.

The Supreme Court made the RIGHT decision. The signs need to come down.

Anon 1116, To answer your question, first, please ...

2008-01-04T22:54:00.000-05:00

Anon 1116, To answer your question, first, please read the regulation a little closer. Signs can be oriented to I-465, not to I-65, I-74, and I-70 within I-465.
These 10 signs are the only exception to this regulation.
In fact, numerous trade-offs have been given to get rid of billboards inside the beltway in exchange for signs along the beltway.

I'm sorry - if it were truly a case of property ri...

2008-01-04T14:17:00.000-05:00

I'm sorry - if it were truly a case of property rights, the courts would have recognized that once of the THREE times they ruled on the matter.

The billboard company put three of the ten billboards up when there was a "grey area" about whether they had the right to do so, knowing darned well that they may not be legal.

Then AFTER they were ruled illegal, they went ahead put up the other seven.

Now they're whining that their "property" - that would be the boards, not the land, is in jeopardy.

Well, they put their damned property in jeopardy, knowing full well it might get taken down. I have no sympathy.

The notion that this has something to do with Peterson is CRAP. The Democrats have been consistently against the billboards from the beginning.

It's two different sets of Republicans doing all the shenanigans and back-room dealing here.

Anon. 11:54, thank you for shedding more light on ...

2008-01-04T13:54:00.000-05:00

Anon. 11:54, thank you for shedding more light on this issue. It certainly isn't as one-sided as has been portrayed by CABB and others. They have been blaming Pinnacle and Republicans of shady dealings, but the truth is the shady dealings came from the City, Mayor Peterson and others.

This is an issue of property rights and I hope Mayor Ballard recognizes it as such and acts accordingly.

There are rumors Scott Keller is going to be the n...

2008-01-03T15:23:00.000-05:00

There are rumors Scott Keller is going to be the new DMD director. Wouldn't that be peachy? The guy has gone bankrupt several times, skipped out on creditors and fled the country for a period of time.

Nicely/Pinnacle have been told by 3 court decision...

2008-01-03T15:09:00.000-05:00

Nicely/Pinnacle have been told by 3 court decisions to take down the 10 billboards. Time's up !

If they want a special deal from the new Mayor, it will be pure politics and not land use or zoning or any other high-fallutin' issue. Can you say "backroom deal"?

By the way - Ballard made another bum decision already in his few days in office - he did let Maury Plambeck go as head of DMD. So, we'll be watching to see what kind of a Mayor Ballard will be.

Gary, You seem to have obtained an inside scoop f...

2008-01-03T11:54:00.000-05:00

Gary, You seem to have obtained an inside scoop from some member of the Peterson administration who would like to spin this matter into a product of GOP making. You have that backward. This matter was the product of backroom dealing between staff of the department of metropolitan development under the Peterson administration and staff of the department of transportation under the Kernan administration. In fact, after the DMD sent Pinnacle a letter expressly stating “this office lacks jurisdiction to issue, or to require an improvement location permit” for the signs Pinnacle asked to construct, it contacted INDOT and asked it to slow the state permitting process down. INDOT obliged and sent a memorandum to its right of way permit coordinator, indicating that it’s staff could “find no billboard rule or regulation that would prohibit their construction,” but instructing it staff that “due to the time element I recommend that these signs all be denied.”

Although the normal INDOT sign-permitting process takes 30-60 days, Pinnacle was forced to sue INDOT to obtain its state sign permits and finally obtained them fifteen months later. During this time the DMD managed to push through a sign ordinance to ex post facto prohibit Pinnacle’s construction the signs it had a perfect right to construct just months before. The trial court actually referred to this “gamesmanship” when it sanctioned the City for maintaining a “frivolous” defense to Pinnacle’s efforts to construct its billboards and awarded Pinnacle its attorney fees.

Although the award of attorney fees was reversed on appeal, the Indiana Appellate Court affirmed the trial court’s ruling that Pinnacle had a “vested right” to construct it signs. Apart from the questionable dealings between the Peterson and Kernan administrations, that’s what this matter is all about – basic property rights. Billboards might not be everyone’s preferred use of property, but Pinnacle had the right to use it property just like anyone else.

Contrary to what some of the posts to your blog indicate, Pinnacle constructed these signs only after the Indiana Appellate Court declared that Pinnacle had a legal right to do so. In this context, Pinnacle’s construction of it signs could hardly be characterized as “illegal” in any traditional sense.

But wait, it gets better. While Pinnacle was attempting to assert it property rights in a legal manner, the City brought the Association of Cities and Towns into the fray, which filed a belated amicus brief with the Supreme Court. ACT had its own agenda – to make it easier for cities and towns to belatedly respond to “big box” construction projects, such a Walmart. ACT introduced new issues which had not previously been presented by Pinnacle or the City and persuaded the Indiana Supreme to change its long standing rule that property rights vest upon applying for any necessary permit.

It was in this context that Simon and Associates, the Builder’s Association of Greater Indianapolis and many other developers (not Pinnacle) lobbied the Indiana General Assembly to quickly change the rule back. Unfortunately for Pinnacle, which was not a direct part of this lobbying effort, the General Assembly did not make its legislation retroactive and Pinnacle appears to be the only property owner caught by Supreme Court’s short lived new rule that property rights only vest after some “significant” amount of construction had been undertaken. Pinnacle, having played the “poster boy” for the building industry in having the “Pinnacle Bill” enacted, was the only one not to benefit from the Pinnacle Bill.

All that being said, Tom John, Representatives Pond and Wolkins and other GOP members are not playing favorites and are not doling out private favors to the well connected. They are simply trying to do the fair and right thing. The City’s conduct in this matter was heavy-handed and indifferent to the ten or so people who lost their jobs and to a business that lost its business and other assets.

Hopefully the Ballard administration will recognize that good governance is about fair dealing and a respect for basic property and other rights, even if those property rights belong to a sign company.

Interesting postings, all. As an attorney I’ve be...

2008-01-03T11:33:00.000-05:00

Interesting postings, all. As an attorney I’ve been following this case since it’s beginning and I am shocked at it’s bizarre twists and turns. I’m not much of a fan of billboards, but that’s really beside the point. The case is all about property rights, as the General Assembly properly addressed in overturning the Supreme Court’s decision (unanimously in the Senate and with only three dissenting votes in the House).

As a self-described Reagan Republican, Gary, I’m surprised that you don’t recognize the issues of property rights and fairness in this case. You seem to be suggesting that this is about Republican skulduggery. The truth of the matter is the exact opposite. The collusion--if not corruption--was between the former Mayor’s office and the Kernan Administration’s Department of Transportation.

City administrators twice told Pinnacle in writing that the property they were seeking to erect billboards on was unzoned and that it didn’t have the authority to issue or deny permits. So Pinnacle went to the State seeking permission to do so. Administrators at INDOT granted two of the permits but letters and phone calls from the City caused them to delay acting on the others, which gave Mayor Peterson time to orchestrate a rezoning of the property and, therefore, a basis for ordering Pinnacle to stop construction. The trail court even went so far as to award Pinnacle attorney fees based on the “gamesmanship” that went on between the City and State.

I’m also surprised that so much credence is being given to this McCANA group. Anyone who has ever been to some of these neighborhood association groups that McCANA represents must recognize that they are often run and attended by a small number of people who have narrow self-interests in mind and a lot of spare time on their hands. You’re a downtowner, Gary. Have you ever attended a Chatham Arch or Lockerbie neighborhood meeting? Do you disagree with my assessment?

Let me ask this: who would buy a lot to build a home if a local zoning board could come in at any time and impose new requirements on it’s size, shape, color or landscaping? What company would acquire land to build business if the county government could vote to take that property with no compensation and put in, say, a landfill. State legislators understood that the Supreme Court’s bizarre decision would be a killer for Indiana businesses and an enormous blow to citizens’ property rights and immediately took action to correct it.

Anonoymous at 11:04 hits it on the head that all “zoning ordinances including sign regulations involve property rights.” And had the property been zoned to prohibit the signs in the first place they wouldn’t have been erected. But for the City to take away someone’s property without compensation after the fact is theft.

Just because the Peterson Administration didn’t like something doesn’t give them the right to take what belongs to others.

There’s a whole lot more to this story than whether or not one finds billboards aesthetically pleasing and I sure hope that people dig into it. As much as many partisans and pundits don’t like it, voters decided they were tired of the Imperial Mayor Peterson and chose to elect someone who has promised transparency in all government dealings. What a refreshing change.

Incidentally, for all of this talk of GOP meddling and the clear animus on the part of some of this forum’s participants toward Tom John and Phil Nicely, I for one am pleased that someone is sticking up for this Indianapolis-based business and, by extension, the property rights of all of our citizens. Let’s hope the Ballard Adminstration rights this wrong of the prior administration, and surely others that are yet to come to light.

anonymous 1104, that is very interesting, as i am...

2008-01-03T11:16:00.000-05:00

anonymous 1104, that is very interesting, as i am aware the city has in the past, during the lugar, hudnut, and goldsmith administrations, granted variances for signs within the entire area circumscribed by the interior right-of-way line of the Outer Belt Highway commonly identified as I-465 so as to be oriented to traffic on said Highway. why the sudden change?

Not sure what tape you watched, because you’re rea...

2008-01-03T11:04:00.000-05:00

Not sure what tape you watched, because you’re reading more into body language than there is. And most of those people speaking against the signs were R’s. But the upshot is no one was hiding anything.

Since 1971 the Signs Regulations have said: “No advertising sign shall be erected or otherwise located within six hundred (600) feet of the right-of-way of a Highway, as herein defined, located within the entire area circumscribed by the interior right-of-way line of the Outer Belt Highway commonly identified as I-465 so as to be oriented to traffic on said Highway.”

The loophole came regarding the Interstate rights-of-ways. It is long held that State/Federal jurisdiction trumps local regulation; therefore, the interstates were never zoned (under the Republican Hudnut, mind you). Where the railroad rights-of-way cross the interstate system, the railroad apparently trumps the interstate so the railroad could give consent for a billboard. The billboard could be erected because the interstate was not zoned.

Pinnacle applied for 3 sign permits from the INDOT before the city zoned the interstates; the others were applied for afterwards. None of the permits had been acted upon (i.e. no signs built) before the city changed the zoning. Pinnacle was made aware of the zoning changes that were happening and yet they did not construct the signs; who knows why they delayed construction. So under the law of the land, the signs were not legal when they were built.

So, one loophole was yanked closed by another loophole. If a corporation can take advantage of a loophole, why can’t a government agency? Particularly when the intent was very clear and longstanding. As the saying goes, ‘if you live by the loophole, you die by the loophole’ or perhaps ‘there’s no such thing as a free lunch’….

I only mention the R’s and D’s to illustrate that this isn’t a party-line political blame issue: there are R’s and D’s on both sides of this one, now and in the past.

BTW, all zoning ordinances inc. sign regulations always involve property rights, so saying there’s a difference is just ‘spin’.

Another tidbit, Phil Nicely, partner in Bose McKinney, is/was one of the owners of Pinnacle Media. He is well-known for despising government land use regulation – I’m not sure why he remains here instead of relocating to Texas…

This is just an excellent post, and fine work, Gar...

2008-01-03T10:51:00.000-05:00

This is just an excellent post, and fine work, Gary....I have more than a passing knowledge of this issue.

Of all the posts, the Anon 10:00 hit the nail squarely on the head.

Ballard has a choice to make. At this writing, he hasn't decided if he'll keep Maury Plambach as director of DMD, but: all the neighborhood liaisons were told to clean out their desks Monday.

Which is a crying shame, because I've worked with many of them, and honestly, I don't know their politics. They divided their work by township, and it took Peterson long enough to figure it out, but by about 2005, he had a system that worked for everyone.

Phil Nicely is such a scumbag. This was never a property rights issue. The city always had the right to reasonably regulate the billboards. I have never understood why City Legal didn't take a more active approach in some of these issues.

Like this one, and the illegal and improper construction at two Bill Mays-owned nightclubs...the list goes on.

It certainly makes you wonder if political contributions or other checkbook issues, have anything to do with it. It's hard to escape that conclusion, although the professional planners involved are upright and decent.

But they do have bosses.

Seven years of ignoring the law seems pretty outrageous...the permits should neve rhave been issued, and although Nicely got a favorable initial court ruling, it was a matter of time until the right side won out.

The jog's up, Phil. Don't let the door hit you...

Yadda yadda yadda.Dirty Bookstores are and were bu...

2008-01-03T10:45:00.000-05:00

Yadda yadda yadda.

Dirty Bookstores are and were built on private property. Who wants one of them or a billboard in their neighborhood.

A civil society has to have rules and regulation and PINNACLE made a business choice to bend the law and now has lost. And the Indiana Supreme Court has said so THREE times.

Mayor Ballard enforce the law remove the illegal billboards!

1)The signs should never have been constructed by ...

2008-01-03T10:25:00.000-05:00

1)The signs should never have been constructed by law.

2) The signs should have been taken down.

The signs were erected in violation of the law and were not taken down as ordered under the law.

What's there to discuss? Take the damn signs down.
Ballard's got no nickle on this dime whatsoever regardless of the barnacles that have attached themselves to him of late.

If he's going to be Mayor he needs to act like one and just put this issue to rest.

Gary, read the all three court records. You shoul...

2008-01-03T10:14:00.000-05:00

Gary, read the all three court records. You should be outraged as a lawyer.

James W. Scott

The Supreme Court set out the facts as follows:"Fi...

2008-01-03T10:13:00.000-05:00

The Supreme Court set out the facts as follows:

"First, it would lease land for this purpose from Hoosier Heritage Port Authority, an entity that owned abandoned railroad right-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, which is responsible for interstate highways. Third, it would erect billboards without seek any approval from the city.

Disgusting how many insiders can get special trea...

2008-01-03T10:10:00.000-05:00

Disgusting how many insiders can get special treatment and perks. This is not the first time that Pinnacle Media has broken the law. They erected a biilboard on Indy's Northside in the White River floodplain and never had a permit from the city. After the city ordered them to remove the billboard they turned to the Indiana Department of Natural Resources and were granted a permit thru them. Seems they have worked the system before and beat it.

Billboard Blight has everything to do with crime...urban/sign blight fosters urban decay which fosters crime.

If Pinnacle this time is saved by Mayor Ballard, he will be a one term wonder.

Didn't he say that he did not want hidden agenda's...this is political / supporter agenda !

The court documents clearly state that Pinnacle le...

2008-01-03T10:08:00.000-05:00

The court documents clearly state that Pinnacle leased abandoned railroad land from the Hoosier Heritage Port Authority for the signs.

Mike, you are correct, these signs were built on ...

2008-01-03T10:05:00.000-05:00

Mike, you are correct, these signs were built on private property, CSX rail. How do i know, i am the one who leased and obtained all necessary permits. you are correct their is more if people will just look.

Gary, after reading your past posts i would have thought you would have been more thorough and more astute as to the real issues at play.

James W. Scott

"Rep. Wolkins and Rep. Ponds letters were in suppo...

2008-01-03T10:02:00.000-05:00

"Rep. Wolkins and Rep. Ponds letters were in support of property rights, not the signs."

I've read their letters. Neither one of them understand the facts of this case. They were obviously taken in by the propaganda put out by Pinnacle. I was appalled by their admission that they specifically enacted a badly-worded state statute for this one billboard owner who contributes generously to Republican candidates. Their explanation of the Supreme Court's ruling was completely off base.

The legislation in question was on eminent domain ...

2008-01-03T10:00:00.000-05:00

The legislation in question was on eminent domain and the Pinnacle issue was a last minute footnote no doubt added as a favor to Nicely and his group.

Whether you like Peterson or Ballard isn't the issue. It is that for decades, under various Mayors, the City has banned billboards from within 600 feet of the Interstates inside I-465.

Nicely pulled his stunt under the Peterson administration and, to his credit, Peterson fought those billboards. Now, due to more ethically challenged maneuvering by Nicely, this issue is landing in Ballard's lap.

A lot of community groups will be watching what Ballard's response is and use it as a bellweather for his ability to be a good Mayor.

A mess created by the past administration, you b...

2008-01-03T09:49:00.000-05:00

A mess created by the past administration, you bet. While attending this meeting, for another issue, i was shocked to see how city employees and the dems were trying to hide documents showing discussions between the city, dmd and the state, indot. if you actualy watch the tape of the hearing you will know this is not a sign issue, but rather an issue of property rights. Rep. Wolkins and Rep. Ponds letters were in support of property rights, not the signs. I don't like signs, but it looks to me these were built on a private rail line, not the public right of way as the city suggests,councilor borst said it correctly pinnacle had the legal right to build, i wish i had more time to really look at this because something is just not right.

Mike, the billboards in question were constructed ...

2008-01-03T08:40:00.000-05:00

Mike, the billboards in question were constructed on public right of ways.

Maybe the reason Indy is a mess is that the City s...

2008-01-03T08:31:00.000-05:00

Maybe the reason Indy is a mess is that the City spends this much effort focusing on billboards, rather than actual problems like crime or the budget. Clean up the Phoenix? Nah- we have a serious billboard problem!

If the billboards are on private property, they are speech and should be free from government intervention. Simple. Move on.

McANA does not back any political candidate, regar...

2008-01-03T01:26:00.000-05:00

McANA does not back any political candidate, regardless of party. It is--and states every month in its opening statement read on WCTY in front of those attending the open forum on the 3rd Saturday of the month--that it is a nonpartisan nonprofit organization. It is truly beholden to NO one (including anyone holding any purse strings)except its members which are exclusively neighborhood associations, not individuals at a cost of annual dues of $20. Every board member and officer are volunteers with zero recompense for their time, energy and efforts on behalf of all neighborhood associations wishing to have McANA advocate for them.