City of Oakbrook Terrace v. Suburban Bank

• Decision Date: 24 March 2006
• Docket Number: No. 2-04-0719.,2-04-0719.
• Citation: 845 N.E.2d 1000
• Parties: The CITY OF OAKBROOK TERRACE, Plaintiff-Appellant, v. SUBURBAN BANK AND TRUST COMPANY, as Trustee under Trust Agreement dated July 1, 1996, and Known as Trust No. 1122; Paramount Media Group, Inc.; Carolyn B. Robinette, as Successor Trustee of the Clayburn B. Robinette Declaration of Trust dated November 15, 1980; The Estate of Rose Alma Robinette; and National Advertising Company, d/b/a Outdoor Systems Advertising, Defendants-Appellees (Public Storage, Inc.; Mad Outdoor, Inc.; and Eller Media Company, Defendants).
• Court: United States Appellate Court of Illinois

Page 1000

845 N.E.2d 1000

The CITY OF OAKBROOK TERRACE, Plaintiff-Appellant, v. SUBURBAN BANK AND TRUST COMPANY, as Trustee under Trust Agreement dated July 1, 1996, and Known as Trust No. 1122; Paramount Media Group, Inc.; Carolyn B. Robinette, as Successor Trustee of the Clayburn B. Robinette Declaration of Trust dated November 15, 1980; The Estate of Rose Alma Robinette; and National Advertising Company, d/b/a Outdoor Systems Advertising, Defendants-Appellees (Public Storage, Inc.; Mad Outdoor, Inc.; and Eller Media Company, Defendants).

No. 2-04-0719.

Appellate Court of Illinois, Second District.

March 24, 2006.

COPYRIGHT MATERIAL OMITTED

Barbara J. Gosselar, Kenneth T. Kubiesa, Kubiesa, Spiroff, Gosselar, Acker & Kern, P.C., Elmhurst, for City of Oakbrook Terrace.

Edward P. Graham, Melissa A. Grahonya, Law Offices of Edward P. Graham, Ltd., Naperville, for J.T. Land Group, Inc., Carolyn B. Robinette, Estate of Rose Alma Robinette, Suburban Bank & Trust Co.

Ronald J. Broida, Jeffrey A. Tullis, Broida & Tullis, Naperville, for Paramount Media Group, Inc.

James R. Carroll, Michael A. Steigmann, Quinlan & Carroll, Ltd., Chicago, for National Advertising Company, Viacom, Inc., Eller Media Company, Mad Outdoor, Inc. Public Storage, Inc.

Justice O'MALLEY delivered the opinion of the court:

Plaintiff, the City of Oakbrook Terrace (City), sought to enforce a zoning ordinance regulating off-premises, freestanding, outdoor advertising signs against various defendants that owned or leased either existing legal, nonconforming signs or the property on which such signs were located. The parties filed cross-motions for summary judgment. Relying primarily on section 7-101 of the Eminent Domain Act (Act) (735 ILCS 5/7-101 (West 1998)), the trial court found that the City could not require alteration of defendants' signs without paying them just compensation. Accordingly, it granted defendants' motions for summary judgment and denied the City's motion. The City appeals. We affirm.

I. BACKGROUND

On December 23, 1980, the City, a home rule unit of local government, enacted Ordinance No. 80-24 (1980 ordinance) prohibiting off-premises, freestanding, advertising signs and requiring that all nonconforming signs be removed or altered to conform to the ordinance by 1988.

On January 15, 1999, the City commenced an enforcement action against defendants, seeking injunctive relief and the assessment of fines after it gave notice to defendants or their predecessors to remove, alter, remodel, or convert their signs to conform to the City's ordinance. Defendants did not bring their signs into conformance, file for variances, or appeal the City's determination that the signs violated the 1980 ordinance.

On August 14, 2001, the City enacted Ordinance No. 01-15 (2001 ordinance), which repealed certain portions of the 1980 ordinance, including the portion that prohibited off-premises, outdoor, advertising signs. The new ordinance permitted such signs, but imposed size and height restrictions and included a two-year amortization period for nonconforming signs. Under the ordinance, off-premises, outdoor, advertising signs could not exceed 20 feet in height and could not have a face area larger than 200 square feet.

Defendant Paramount Media Group, Inc. (Paramount), leases a free-standing off-premises outdoor advertising sign located at 0S480 Route 83 in the City. The sign was erected by a predecessor to Suburban Bank and Trust Co. (Suburban), as trustee under a trust agreement dated July 1, 1996, and known as Trust No. 1122, and also owned by a predecessor to Suburban prior to the enactment of the 1980 ordinance. In November 1999, Paramount leased the sign from Suburban for a 20-year term. Suburban sold its property and the sign on December 18, 2003, to defendant J.T. Land Group, Inc. (J.T. Land Group).¹ Paramount leases space on the sign to various advertisers. The Paramount sign exceeds the area and possibly the height restrictions for such signs, in violation of the 2001 ordinance.

Defendant Carolyn B. Robinette, as successor trustee of the Clayburn B. Robinette Declaration of Trust dated November 15, 1980 (Robinette Trust), owns certain properties located at 0S680 and 0S700 Route 83 in the City (the Trust Properties). The Robinette Trust or its predecessor erected an off-premises, freestanding sign on the 0S700 property before the adoption of the 1980 ordinance, and it currently owns the sign and leases space on it to various commercial advertisers. Defendant Viacom, Inc. (Viacom), or its predecessor, National Advertising Company (National),² erected the off-premises, freestanding sign on the 0S680 property sometime before the adoption of the 1980 ordinance. Under a lease with the Robinette Trust or its predecessor, Viacom's sign occupies the property and is leased to various commercial advertisers. Both signs on the Trust Properties exceed the height and space limitations set forth in the 2001 ordinance.

Defendant the estate of Rose Alma Robinette (Robinette Estate) owns property located at 0S560 Route 83 in the City. Viacom or National erected an off-premises, freestanding sign on the property sometime prior to the adoption of the 1980 ordinance. Viacom leases the sign from the Robinette Estate or its predecessor and leases space on it to various commercial advertisers. The sign exceeds the height and space limitations set forth in the 2001 ordinance.

The City filed its third amended complaint on November 19, 2001, seeking injunctive relief against defendants, alleging they maintained off-premises signs in violation of its 2001 sign ordinance. Paramount filed a counterclaim against the City, arguing, among other things, that enforcement of the ordinance would result in an unlawful taking of Paramount's property without payment of just compensation. Following discovery, the parties filed cross-motions for summary judgment. On June 16, 2004, the trial court denied the City's motion and granted defendants' motions. The City timely appeals the grant of summary judgment in favor of defendants and the denial of its motion for summary judgment.

II. STANDARD OF REVIEW

Summary judgment is proper when the pleadings, depositions, and affidavits on file demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Kleinschmidt, Inc. v. County of Cook, 287 Ill.App.3d 312, 315-16, 223 Ill. Dec. 57, 678 N.E.2d 1065 (1997). When the parties file cross-motions for summary judgment, the parties agree that no material factual issue exists and that only questions of law are presented. Subway Restaurants of Bloomington-Normal, Inc. v. Topinka, 322 Ill.App.3d 376, 381, 256 Ill. Dec. 150, 751 N.E.2d 203 (2001). Of course, the mere fact that the parties have presented cross-motions for summary judgment does not establish that no factual issues exist; rather, the trial court and the reviewing court may determine the existence of a factual issue sufficient to preclude the entry of summary judgment notwithstanding the fact that the parties do not believe one exists. Kalis v. Colgate-Palmolive Co., 357 Ill.App.3d 172, 174, 293 Ill.Dec. 217, 827 N.E.2d 1098 (2005). We review de novo the propriety of an order granting summary judgment. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 102, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992). Similarly, the construction of a statute or ordinance involves a question of law, which we review de novo. Village of Mundelein v. Franco, 317 Ill.App.3d 512, 517, 251 Ill.Dec. 515, 740 N.E.2d 801 (2000).

III. ANALYSIS

A. Jurisdiction and Scope of Appellate Review

As a preliminary matter, we address whether we have jurisdiction to review this appeal and the scope of our review. In this case, the City filed a complaint seeking to enforce its billboard ordinance against defendants. Defendants, in turn, filed answers to the City's complaint and raised several affirmative defenses, including arguments based on free speech, due process, equal protection, a highway advertising statute, estoppel, and laches. Subsequently, the City moved for summary judgment, addressing all the defenses raised by defendants. In their motions for summary judgment, defendants raised only section 7-101 of the Act and a takings argument. However, in their memoranda in opposition to the City's motion, defendants addressed some of their affirmative defenses.

Following a hearing on the parties' motions, the trial court denied the City's motion for summary judgment and granted defendants' motions. The court noted that it had reviewed the voluminous pleadings and, in explaining its ruling, the court focused on section 7-101 of the Act. It concluded by stating that it was adopting the positions of Paramount and Viacom in their "briefs," without specifying if the court was relying solely on the materials defendants submitted in support of their motions for summary judgment or if it was also relying on defendants' memoranda in opposition to the City's motion. In its written order denying the City's motion and granting defendants' motions, the trial court stated "[f]or the reasons stated in open court, including [s]ection 7-101 of the [Act]."

In motions filed prior to oral arguments in this case, the parties presented arguments concerning our jurisdiction over all or part of this appeal. Viacom contends that this court does not have jurisdiction to consider the City's "interlocutory" appeal of its denied summary judgment motion because that motion addressed different issues from defendants' granted summary judgment motions. According to Viacom, because the trial court ruled only on the effect of section 7-101, this court lacks jurisdiction over the appeal from the denial of the City's summary judgment motion as to the other issues. The City contends that the trial court ruled on all of the issues raised in the parties' cross-motions for summary judgment and in the...