Libertarians argue First Amendment violations

MOORESVILLE — The Libertarian Party of Morgan County, Indiana (LPMCIN) is threatening a possible lawsuit against the town of Mooresville in the ongoing saga related to the placement — and removal — of signs in Mooresville rights-of-way.

Going back to the spring, the town has been removing signs in town rights-of-way, justifying the action by citing Mooresville’s unified development ordinance (UDO).

Attorney Mark Rutherford, from the law firm Thrasher Buschmann & Voelkel, sent a letter dated Sept. 28 to the Mooresville Town Council and the town’s legal counsel, Chou-il Lee, asking that the town “rectify” its ruling or face a possible lawsuit.

One of the main topics of controversy has been the placement of political signs in the town’s rights-of-way.

“The Town of Mooresville is ignoring the ruling of the United States Supreme Court concerning regulation of political signs,” Rutherford stated in his letter. “Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015) is highly critical of such restrictions and perhaps should be reviewed and studied by the Town Council of Mooresville.”

In the Reed case, the Supreme Court determined that a sign ordinance in the Arizona city, which placed stricter limitations on signs for religious services, was a violation of the First Amendment of the U.S. Constitution.

The three-page letter goes on to note that the town’s restrictions of political signs are “discriminatory” towards the county’s Libertarian Party, and lists examples of that discrimination.

“In one instance, the LPMCIN installed a ‘Rainwater for Indiana’ sign in the median of Indianapolis Road in Mooresville,” Rutherford notes in his letter. “That sign was placed on May 19, 2020, next to a commercial sign that had been placed there prior to April 18, 2020. Soon thereafter derogatory public comments about the Rainwater sign were made by Town Council President Shane Williams, and the LPMCIN was asked to remove it less than a day later.”

The letter then notes that both the Rainwater sign and commercial sign were removed, with Rutherford going on to write that “only a political sign was subject to derogatory public comments.”

“(T)he Town’s enforcement of its Ordinance is illegal and demonstrates an active and illegal effort to silence LPMCIN and apparently and reluctantly one commercial sign,” the letter notes, while pointing out that other commercial signs remain in place throughout Mooresville.

The letter also points to the fact that the town recently gave permission to a local sorority to place signs for an event it was hosting, and the Mooresville Parks Department also placed a sign in a right-of-way at Samuel Moore Parkway and Indianapolis Road.

On July 13, the town’s public works superintendent Dave Moore gave Delta Theta Tau permission to place signs for its annual Flag Town 5K Run/Walk after a representative from the sorority sent Moore an email.

Then, on July 21, the Mooresville Parks Department was granted by the town council to install a sign in order to advertise concerts at Pioneer Park.

Following the controversy in the spring related to political signs, Morgan County’s political parties were asked to bring up their request to install signs to the town’s Board of Zoning Appeals.

In August, the BZA denied the parties’ variance request to install signs in rights-of-way.

“Apparently, political parties have a heightened standard and must ask permission from the Board of Zoning Appeals first and then to the Town Council if there is a negative decision,” Rutherford’s letter notes. “A sorority only need to email the head of the street department. The parks department can go directly to the Town Council. This discrimination is content-based (political speech) and thus unconstitutional.”

Apparently, political parties have a heightened standard and must ask permission from the Board of Zoning Appeals first and then to the Town Council if there is a negative decision,” Rutherford’s letter notes. “A sorority only need to email the head of the street department. The parks department can go directly to the Town Council. This discrimination is content-based (political speech) and thus unconstitutional.”

The Mooresville-Decatur Times reached out to both LPMCIN chairman Danny Lundy and Williams to get their comments on this matter.

Lundy said that it was unfortunate that the situation has led to the letter being sent, adding that the fight is not about the Libertarian Party.

“It is really about protecting everybody’s rights in town,” Lundy said. “If you can’t put a ‘Just Be Kind’ sign out by your mailbox, I mean, that is an infringement.”

Williams offered a comment through attorney Beth Copeland, who practices in the same firm as the town’s legal counsel.

“The Town of Mooresville is in receipt of the letter from the Libertarian Party of Morgan County and stands by the actions it has taken thus far involving the issue of signs,” the statement reads. “Given the Libertarian Party of Morgan County is threatening to sue the Town for decisions it has made, the town has no further comment on the matter.”

Rutherford’s letter ends by noting that “if action is not taken within 14 days” he would recommend that the Libertarian Party consider legal action against the town of Mooresville.

~ By Lance Gideon | Reporter | Published October 2, 2020 in The Mooresville Times

** On November 5th, 2020 a response was Taft law firm issued a response to the letter. You can read that here.

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COLUMN: A no win scenario

The Mooresville Unified Development Ordinance (UDO) states that signs may not be installed “In any public right-of-way, unless specifically authorized by the legislative body or their designee”.

What that means is that no sign can be placed in any public right-of-way without town council permission.

Anyone who wants to place a garage sale sign, vacation bible school sign, little league sign or a political sign, must first go to the town council and ask permission.

“Right-of-Way” also refers to that space in front of your house between the sidewalk and the street.

Imagine how burdensome it must be for realtors that have to go beg the town council to put a sign out by the street for every listing, or for downtown businesses to be forced to get permission to put out a sandwich board on the sidewalk with today’s specials.

This law is unduly burdensome, and it needs fixed.

At the town council meeting on July 21, our own parks department had to be granted permission to place signs inside the park, or maybe they didn’t need permission?

The town attorney struggled to find a clear answer because the law wasn’t clear enough to provide one.

Eventually, the council voted on it just to be sure.

At that same meeting councilman Tom Warthen attempted to approve political signage because we have an election coming up in November.

The town attorney stopped him, advising that the way the law was written they are not allowed to approve a ‘type’ of sign, they can only approve people who come and ask permission. T

his law places the town in a no-win scenario.

Approval of a type of sign is against the law and could be considered discrimination against other types of signs.

Suppose business A requests to put out signs and is approved, but business B is denied, isn’t that also discrimination?

What if the town council approves candidate A, but not Candidate B?

By default, when you approve any sign you are giving them advantage over all other signs.

Should the town council even have that kind of power?

Conversely then, it seems the town council’s only non-discriminatory option under this law is to ban all signs everywhere and never approve any for placement.

That’s what they have been attempting since March.

No more garage sale signs and no more church signs, no businesses can advertise in right-of-way’s in front of their business.

‘Just be Kind’ and ‘slow children at play’ signs have already been removed to enforce this law universally in every corner of our town.

A quick drive around town will tell you it is not working. Signs are still in our town’s rights-of-way.

This law is unenforceable in any practical sense.

Taxpayers would literally need to hire and fund sign police in order to properly enforce this law.

But if they don’t universally enforce it, they are then selectively enforcing the law against some people, and not others.

They are picking winners and losers.

Thus, deciding who gets punished and who gets ignored.

Should the town council even have that kind of power?

Under this law, no matter what the town chooses to do, someone is being unfairly discriminated against.

They are creating a legal liability that someone will eventually call them on.

The town council should not be able to micro-manage advertising.

This law creates a no-win scenario and is unduly burdensome.

Fixing this law to allow for small signage, and removing the town council’s ability to pick winners and losers, is the only proper course forward.

~ By Danny Lundy | Guest Column | Published August 18, 2020 in The Mooresville Times

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Town BZA denies sign variance

MOORESVILLE — It was a long night for members of the Mooresville Board of Zoning Appeals and Mooresville Plan Commission. Combined, both groups met for more than three hours and they continued two items until next month.

First, the town’s BZA heard a request from Morgan County Libertarian Party Chairman Danny Lundy for a variance from the town’s sign ordinance that prohibits all signs, including political, from the town’s right of way.

Republican Party Chairman Daniel Elliott was also on the agenda to speak, but due to miscommunication on the time, he did not show up until 6:30 p.m. which was after the discussion on signs.

At issue is the section in the town’s ordinance that prohibits all signs from being placed in the space between the curb and sidewalk, space that is normally considered a public right-of-way.

While in some cases the homeowner does not “own” the area between the curb and sidewalk, they must keep it maintained.

Lundy asked the board to consider granting a variance allowing the placement of political signs in the area.

There was discussion on weather the BZA was the proper agency to hear the request or if the board could hear it because no formal request for the variance had been filed.

The board’s attorney, who was a substitute for the board’s regular attorney, said it could hear the request. She gave a brief history of the ordinance regulating signs.

Basically, the town passed the ordinance in 2018 and it took effect Jan. 1 of 2019.

Lundy said the town began enforcing it in 2020. He felt the ordinance was being selectively enforced by the town.

Town council president Shane Williams said he was told in 2019 he had to remove his signs from the right-of-way.

After discussing the matter at length, the board decided to deny the request. Members felt the ordinance should be reviewed at a later date and possibly be changed after the review.

Storage units cause anger

A request by MS Holdings LLC for three variances for the construction of storage units at 451 E. County Line Road resulted in a group of angry residents who told the board they did not want the project.

Local engineer Ross Holloway represented the company during the meeting.

Holloway said the property is currently zoned Industrial-2 which he said does allow for the construction of storage units. It also allows some industrial uses that would not be compatible with the neighborhood he said.

He said the company wants to rezone the land to Business-3 which is more restrictive in what can be placed on the property. He said the company was going to ask the plan commission, which met after the BZA meeting, to give a favorable recommendation for the rezoning.

Holloway noted if the company did not get the rezoning, it would not need the variances. Holloway said the company wanted to be good neighbors with the residents in the area.

Several neighbors spoke about the request and all were in opposition.

Their reasons included:

• The project would destroy property values.
• The land is zoned agricultural, not industrial.
• The concerns about drainage.
• The project would take away an area used by wildlife.
• The “fence” some residents shared with the property would be removed.
• The units would bring crime to the area.
• The neighbors did not want to look at the back of the buildings.
• The project would bring more traffic to the area.

Holloway assured the neighbors the property is zoned for industrial use, not for agriculture.

He said the company would have to meet the town’s drainage ordinance requirements and not allow their water to run off the property.

Holloway added the company would leave the existing fences in place, and according to the Mooresville Police Department, there is very little crime reported around storage units in the area.

He reminded both the board and the neighbors that under the industrial zoning, they could go ahead and place the storage units on the property, the company just has to get approval from the drainage board and meet the requirements of the industrial zoning section.

After nearly an hour of discussion, the board voted to table the matter until next month to allow Holloway to give them more information.

Plan Commission

A request to replat and rezone land near the intersection of Northeast Street and Indianapolis Road brought anger from a resident who did not want to see a multi-family apartment constructed on the land.

According to John Larrison, from Holloway Engineering and Surveying, the property is completely useless as it sits now. It consists of two small lots, each one too small to build on.

The owner wants, Larrison said, to combine the two lots into one lot, then rezone it to Residential-3 to allow construction of a three unit apartment on it.

One person expressed opposition to the rezone request. He did not want the board to allow a multi-family rental unit in an area that had single family homes.

He cited the city of Martinsville which, he said, had around 47 to 48 percent rental properties. He said Mooresville is currently around 33 to 35 percent rentals.

He said many of those apartments have low income families who can bring problems to the area.

After much discussion, commission members approved the replat but it decided to send the rezone request to the town council with no recommendation.

A request to replat several lots on Arrival Parkway in North Madison Crossing brought an angry resident to the meeting.

At issue is a request to combine two lots, one that is too small to build on, into one lot. The resident said the commission was making changes that will affect the homeowner’s association effort to collect fees from property owners. He asked if the new owner would pay two fees because he has two lots or will he pay one fee for both lots.

There was some discussion about past commission actions that may have had an effect on the subdivision.

He was told the commission does not enforce homeowner association rules and regulations.

The commission approved the replatting.

The next scheduled meetings for both the Mooresville BZA is at 6 p.m. on Thursday, Sept. 10 with the plan commission meeting taking place after.

Both meetings will take place at the Mooresville Government Center, 4 E. Harrison St.

~ By Keith Rhoades | Reporter | Published August 14, 2020 in The Mooresville Times

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Signs discussed at Tuesday council meeting

MOORESVILLE — The Mooresville Unified Development Ordinance (UDO), specifically with regards to signage in town rights-of-way and property, was a topic of discussion at Tuesday night’s town council meeting.

Mooresville parks superintendent Brent Callahan said that there was a sign located at the intersection of Indianapolis Road and Samuel Moore Parkway that advertised a concert series at Pioneer Park.

That sign, Callahan noted, was in violation of the town UDO but the parks was not aware it was actually in violation.

The UDO states that signs cannot be placed in public rights-of-way unless authorized by the town council or its designee.

The ordinance also bans signs from public parks.

Callahan said that the sign was a moveable-letter sign that the parks have used for a number of years to advertise different activities.

He also noted that the parks have been putting signs on its property requesting that visitors maintain a six-foot distance during the COVID-19 pandemic.

The parks superintendent was asking permission to reinstall the moveable letter sign to advertise park events, and to install the temporary signs that request the six-foot distance.

Mooresville Town Council President Shane Williams said that the ordinance was passed in 2018 and went into effect in 2019.

Williams said that in 2019, he was told that he could not install campaign signs on public property when he ran for his current seat.

Town councilman Dustin Stanley asked Williams who in the town told him that he could not install campaign signs on public property.

“I didn’t come to the council, I came to the administrator,” Williams responded.

Williams then noted that he emailed Mooresville Building Official Tim Bennett.

The council president later noted that Mooresville Public Works Superintendent Dave Moore was the administrator.

Williams also said that it is up to the town’s board of zoning appeals to grant a variance to the UDO.

Stanley then asked town councilman Tom Warthen to discuss the UDO and how it relates to signs.

Warthen said that a UDO is a living, breathing document and that when the council approved the ordinance it intended to have campaigns and political parties ask permission place signs in rights-of-way.

He also noted that campaigns did install signs in public rights-of-way through the town in 2019, just not at the island near Samuel Moore Parkway and Indianapolis Road.

“The intentions were to give a set of guidelines that ‘yes you can put your political signs with the state’ and they have to match the state’s requirements at all times, which are also ever-changing,” Warthen said.

Warthen also noted that he believes anybody should be able to put a sign on their property, as long as it meets certain standards, including the town of Mooresville.

Williams responded that the ordinance does not matter how it is interpreted, it’s how it is written.

“I disagree with that,” town councilman Jeff Cook responded pointing to a discussion of a nepotism policy at the July 7 meeting. “It was good before, but not today. So yesterday it was good, but not today. We’re finding that out with all of these. It is how you interpret it.”

Attorney Beth Copeland said that she was having a hard time believing that the UDO does not allow a Mooresville governmental entity like the parks needing to ask permission from the town council to install signage on its own property.

During the meeting, the council voted 4-1 in favor of allowing the moveable letter sign to be installed in the public right-of-way by the park.

“I’m going to vote no, because I think we need to be consistent,” Williams said after the vote.

Members of the council also discussed their want to potentially amend the town’s UDO concerning signs.

The council also voted to allow the parks to install signs on park property, 4-1.

“I’m voting no for the same reason, I think the ordinance needs amended,” Williams said.

Public comment

Later in the meeting, local resident Justin Sprinkle discussed the recent removal of signs in town rights-of-way throughout the town — including strips of grass between a sidewalk and town street.

“This is the first time we have seen this ordinance enforced on such a grand scale,” Sprinkle said. “And I think any reasonable person seeing a ‘Just Be Kind’ sign removed from a small garden next to a mail box or a ‘Drive Slow Children Playing’ sign being removed is left shaking their heads that something is wrong here.”

Sprinkle argued that while a strip of grass between a sidewalk and town street may technically be a town right-of-way, it is generally maintained by the property owner on the other side of the sidewalk.

“While this current body may not be responsible for the crafting and passing of these laws, you are responsible for the decision to enforce these laws,” Sprinkle said.

He thanked members of the council for wanting to look into amending the ordinance.

“We should not live in a town where you can’t put a “Just Be Kind’ sign next to your mailbox,” Sprinkle said. “I hope you look at that as you guys look at this ordinance in the future.”

~ Staff Report | Published July 24, 2020 in The Reporter Times

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