Feb. 15—The yearslong legal battle between the city of Kokomo and Burkhart Advertising has come to an end after both parties came to a resolution and agreed to dismiss the lawsuit.

The two parties reached a settlement agreement and subsequently filed a joint stipulation of dismissal Dec. 20, 2022, stating that the dismissal would be with prejudice, meaning it is dismissed permanently and Burkhart cannot refile the same claim again. The dismissal was accepted by Howard County Superior Court II Judge Brant Parry shortly thereafter, on Dec. 26.

The settlement and dismissal ends a nearly decadelong battle between the city and Burkhart over various billboards the company operates around the city and the city's attempts to remove some of them. Per usual with settlements, neither side admits any guilt to any of the claims made.

In the end, Burkhart did end up removing some of the billboards in question after the Indiana Court of Appeals in October ruled against the advertising company. The company agreed to not rebuild them and paid the city $75,000, a portion of the city's legal costs, according to Kokomo City Attorney TJ Rethlake. Those billboards included 408 S. Washington St., 400 E. Smith Road, 3005 S. Apperson Way and 1619 Rank Parkway, according to the settlement agreement acquired by the Tribune through a public records request.

Lamar Advertising's acquisition of Burkhart in May of 2022 also appears to have worked in the city's favor and likely expedited the ending of the legal battle.

Since the acquisition and after the city filed a motion for summary judgment, Burkhart filed nothing but motions to extend its deadline to reply to the city's motion for summary judgment up until the dismissal, according to the online court docket.

Rethlake said he didn't want to speak on Lamar Advertising's behalf when asked if the company was not interested in inheriting the legal case, but he did say the acquisition "definitely reopened negotiations."

The attorney for Lamar Advertising did not respond to a request for comment.

Per the settlement agreement, Lamar's remaining billboards within the city limits will be classified as "legal, nonconforming" signs, and to any extent the current billboards violate a zoning ordinance, the city agrees to not enforce any violation, though the city can enforce a new violation that may occur in the future.

Also, Lamar is expected to perform "routine improvements and maintenance" on its existing billboards, and any existing sign face being replaced must be replaced with one that is similar. The agreement also stipulates that signs can't be converted to digital or electronic signs.

Kokomo Mayor Tyler Moore said the city was "pleased" that both sides reached an "amicable resolution."

"Since the lawsuit with Burkhart Advertising was one we inherited when I took office, the City was pleased to see both sides come to an amicable resolution to the situation that will allow us to further address the billboards in question and to now move forward," Moore said in an emailed statement.

HOW WE GOT HERE

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 that they advertised. The amendment was part of the city's effort to reduce the number of billboards within its limits.

The ban did not affect 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 tornadoes that tore through the city damaged 11 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 afterward, the city provided Burkhart with a list of signs they alleged no longer complied with the zoning ordinance.

Burkhart and the city then negotiated and reached an agreement to work toward 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 the company refused to do so. The city then notified the company of violations relating to four of its billboards and informed Burkhart 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 because the company intended to repair the damaged signs. 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.

Tyler Juranovich can be reached at 765-454-8577, by email at tyler.juranovich@kokomotribune.com or on Twitter at @tylerjuranovich.