A nice place to ride: Cyclists spend a Saturday morning traveling along the Ohio River near Utica in southen Indiana on a stretch of scenic highway passing beneath the Indiana 265 bridge. CNHI News Indiana photo by Scott L. Miley
A nice place to ride: Cyclists spend a Saturday morning traveling along the Ohio River near Utica in southen Indiana on a stretch of scenic highway passing beneath the Indiana 265 bridge. CNHI News Indiana photo by Scott L. Miley
The concept seemed worthy: Designate State Road 265 in southern Indiana as a scenic byway.

The highway helps drivers avoid busy Louisville, starting at the Ohio River and running westward to near New Albany in a semi-circle that is partially an interstate.

State Road 265 comprises about a three-mile stretch of the route from the river to Ind. 62.

While mostly a shadeless expanse of concrete, the road finds a pleasant view in crossing the Ohio River along the Lewis & Clark Bridge, a few miles upstream from where the explorers met to prepare for their 1803 expedition.

While that history sets up what could be a scenic vista for some travelers, seeking the designation of a “scenic byway” can apparently be used as a way to intimidate another group, according to a recent court case.

The case led to a Clark County Circuit judge awarding $237,440 in attorney fees against a southern Indiana development group that opposed roadside billboards because the judge found the group's conduct was in “bad faith” and “harassing.” In July, the Indiana Court of Appeals reversed the judgment.

Two years earlier, the nine-county Kentuckiana Regional Planning and Development Agency asked the Indiana Department of Transportation to name a section of Ind. 265 as a scenic byway.

The Scenic Byways Program is by all accounts an effort to avoid the intrusion of “garish” stores and ads along historic routes.

The designation, though, has seldom been sought since its inception in 1997. There are 13 corridors with the designation, including the Wabash River Scenic Byway in western Indiana, the Historic National Road along U.S. 40 and the Oldenburg-Barnesville Loop Route.

“The benefits of the program have largely been in respect to marketing and tourism for local communities that are building brands and value propositions around historic, natural, or cultural assets that are tied to or accessed by a given roadway,” INDOT spokesman Scott Manning said.

Requests come in from county or municipal tourism agencies or preservation grounds. INDOT helps by installing byway signs and marking them on state maps.

There are no environment protections offered under the program. But it does limit new development adjacent to rights-of-way that could negatively impact the historic, cultural or natural significance of the route, according to Manning.

“This helps to preserve property near byways for natural areas, wildlife habitat and/or recreational opportunities when they otherwise might have been used for other purposes,” he said.

Billboards not permitted

New billboards are not permitted on designated byways. Existing billboards that meet regulations before a byways designation is approved are allowed to remain.

The program had been essentially unused before the State Road 265 issue request came up, Jay Mitchell of INDOT told the Indiana Scenic Byway Committee in March 2018.

The most recent request at the time, Mitchell said, was connected to Indiana Bicentennial community projects in 2016.

The proposed State Road 265 section would be added to the existing Ohio River Scenic Byway.

The mayor of Jeffersonville supported the designation, as did local economic development and tourism groups.

So did Jerry Acy, executive director of the of River Ridge Development Authority, a group reworking nearly 6,000 acres of former military property for business and manufacturing, most notably as the River Ridge Commerce Center.

But in April 2017, landowners along 265 entered into an agreement with outdoor advertiser Outfront to construct seven LED or halogen-illuminated billboards not far from the entrance to River Ridge.

River Ridge opposed the billboards.

“It would be a travesty if the pastoral, natural views enjoyed by our pioneer forbears (sic) are spoiled by garish billboards which advertise everything from hamburgers to adult bookstores along the roadway," Acy wrote in an August 2017 email to the Kentuckiana Regional Planning and Development Agency.

INDOT, however, approved the billboard request. The agency also runs the Scenic Byways Program.

The scenic byway committee determined that the significance of the Ohio River, connection to Lewis and Clark, the historic lime kilns nearby and the recreational opportunity with a new bike trail over the river supported the designation, Manning said.

River Ridge filed a lawsuit in Clark County Circuit Court in part challenging zoning elements of the billboard decision and calling the outdoor advertising a public nuisance. The lawsuit also noted that billboards are not usually allowed along state and federal scenic byways.

The targets of the lawsuit, including the town of Utica, the landowners and Outfront, filed motions to dismiss it.

River Ridge decided to retract its lawsuit April 30, 2018. That was the same day that INDOT approved the scenic byway destination for State Road 265.

The local judge said, “The fact that (River Ridge) dismissed its lawsuit with prejudice the very same day the scenic byway commission recommended approval of the byway designation, despite the motions to dismiss being fully briefed, demonstrates that (River Ridge) knew its lawsuit was without merit.”

The appellate court, however, said there was no evidence to show River Ridge’s lawsuit was without merit.

A marketing tool

But perhaps more telling — beyond the seemingly “scenic byway” marking — is the way some use the scenic byways program as a marketing tool.

River Ridge "recently invested approximately $25 million in an entrance to its 6,000-acre facility from State Road 265. To protect its investors and its ability to market the park, it was important ... that this corridor be free from the billboards that crowd so many other roadways in that region,” River Ridge attorneys wrote in a court brief.

In September 2018, Special Judge Richard Striegel ruled that Outfront, the outdoor advertising company, should be awarded legal fees.

“This court, in consideration of the factual and procedural history, finds that (River Ridge) brought a meritless lawsuit, inflicting significant costs on a small town and business entities, to stop fully permitted billboards from being constructed. This is an abuse of the judicial process, and (River Ridge's) litigation was in bad faith, harassing, obdurate and the lawsuit was groundless.”

Ten months later, the Indiana Court of Appeals reversed Striegel's decision.

Since July, attorneys for Outfront Media, the landowners and the town of Utica have asked that one aspect of the case be transferred to the Indiana Supreme Court to evaluate whether those attorneys should be awarded legal fees. They claim $650,000 was incurred before River Ridge retracted its lawsuit.
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