Covenant Media of Ill. v. City of Des Plaines
| Decision Date | 07 March 2007 |
| Docket Number | No. 04 C 8130.,04 C 8130. |
| Citation | 476 F.Supp.2d 967 |
| Parties | COVENANT MEDIA OF ILLINOIS, L.L.C., Plaintiff, v. CITY OF DES PLAINES, ILLINOIS, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
E Adam Webb, Law Offices of E. Adam Webb, Atlanta, GA, Kurt Joseph LeVitus, LeVitus Law Offices, Chicago, IL, for Covenant Media of Illinois, L.L.C., Plaintiff.
Frank Bennett Garrett, III, Aaron Grifton Allen, Joanne Hwang Petty, Mathias William Delort, Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., Chicao, IL, David R Wiltse, City of Des Plaines, Des Plaines, IL, William D. Brinton, Rogers Towers, P.A., Jacksonville, FL, for City of Des Plaines, Illinois, Defendant.
More than two years ago, plaintiff, Covenant Media of Illinois, L.L.C. ("Covenant"), filed a fourteen-count complaint against defendant, City of Des Plaines, Illinois ("the City"), challenging the constitutionality of the City's sign ordinance ("the Sign Ordinance"). Through the course of the litigation, this court identified a number of constitutional defects in the Sign Ordinance and the City twice amended its ordinance in an effort to cure those defects. Apparently, Covenant is satisfied that the current version of the sign ordinance is constitutional, and the parties now dispute only whether the case is moot and whether Covenant has standing to pursue the litigation. Presently before the court is the City's motion for summary judgment. For the reasons stated below, the motion is granted.
Covenant is an Illinois limited liability company in the business of erecting and operating advertising signs for businesses, churches, organizations, and individuals to communicate commercial and non-commercial messages.1 The City is a municipal corporation and political subdivision of the State of Illinois located in Cook County.
As of February 2004, the City had adopted an ordinance limiting, among other things, the use and erection of billboards within the City. The purpose of the ordinance was to "regulate and control the use and development of land within the City of Des Plaines." More generally, "it [was] designed to promote the public health, safety, and general welfare ..." of the City's residents. Among other restrictions, section 11.6(B) of the Sign Ordinance limited the placement of billboards within certain zoning districts and within 660 feet of Interstate Highways 90 and 294 ("the Interstate Highways"). Section 11.3-3(A) required the Zoning Administrator to examine a permit application and its accompanying materials to determine its compliance with the Sign Ordinance as well as any other applicable City Code, ordinance, or law once a complete application had been submitted. Section 11.3-3(C) required the City Manager to "negotiate an agreement, on such terms, conditions and locations as is appropriate, including but not limited to, a licensing fee of $15,000.00 per sign payable on completion of construction and other financial considerations to the City as the City Manager deems appropriate." Section 11.3-3(C) further required the City Council to approve the agreement reached by the City Manager for a billboard permit and the Mayor to sign the agreement.
On November 16, 2004, Covenant submitted an application to erect a billboard. Covenant's application contemplated the erection of a billboard in a location more than 660 feet from the Interstate Highways and did not specify whether it would display commercial or non-commercial messages. By letter dated November 19, 2004, the City's Building Inspector sent the following letter to Covenant:
Re: Billboard Permit Application for 2100 E. Touhy Ave., Des Plaines, IL Dear Mr. Miles:
The Building and Code Enforcement Division has reviewed your plans for the above improvement. Based on the information provided, the City must deny the permit request as submitted. In order for the permit to be further processed, the following items must be addressed and satisfactory correctional information must be resubmitted, including revised drawings and an item-by-item written reply to all comments.
1) This site must be approved by the Plan Commission and City Council by ordinance prior to the Issuance of a permit.
2) Approved [Illinois Department of Transportation ("IDOT")] permit is required.
3) Soil borings will be required.
4) Structural calculations must be legible and specific to sign and local soils.
5) Structural calculations must be signed by a structural Engineer.
6) Electrical plans must be submitted.
7) Plat of Survey is required.
8) Site plan is required.
Your permit will be on hold for thirty (30) days pending receipt of corrected, proper information. If you are unable to respond within this period of time, we will return your application and all other previously submitted materials to you. You may then re-apply at your convenience.
If you have any questions or if I may be of any further assistance, please feel free to contact me at (847) 391-5372. Sincerely,
Building and Code Enforcement
Al Biancalana, Jr.
On December 16, 2004, Covenant filed the instant law suit challenging the constitutionality of the Sign Ordinance in its entirety, both facially and as applied to Covenant. On the same date, Covenant responded by letter to the City's November 19 letter denying its application.2 In its letter, Covenant stated its belief that its application was already in compliance with the Sign Ordinance, explained its failure to submit certain materials identified in Biancalana's letter, and expressed willingness to comply with all reasonable requests for additional application materials. Covenant also attached to its letter a completed application for an IDOT permit, apparently in an attempt to persuade the City that such a permit was forthcoming, though it did not submit any evidence that it had actually filed the application with IDOT. Biancalana replied by letter on December 23, 2004, stating that Covenant had still either failed to submit the application materials identified in his November 19, 2004 letter or had submitted them in incomplete or improper form. Binacalana concluded:
In order for the permit to be further processed, the following items must be addressed and satisfactory correctional information must be resubmitted including revised drawings and an item-by-item written reply to all comments.
1) Submit completed Plan Commission application....
2) Submit approved IDOT permit.
3) Submit soil borings of proposed location with permit application.
4) Submit legible structural calculations, specific to this sign, for review with permit application.
5) Electric plans shall be stamped by an Illinois licensed engineer.
6) Submit a Plat of Survey.
7) Site plan shall include dimensions from adjoining structures.3
During January 2005, Covenant submitted an additional 11 applications for sign permits, all of which the City rejected as incomplete on February 10, 2005. Ten of Covenant's eleven additional applications proposed locations more than 660 feet from the Interstate Highways. The application for the 911 E. Touhy site proposed a location within 660 feet of the Interstate Highways, but in an area zoned for single family residences. In order to further process these applications, the City stated that each of the following items must be addressed and satisfactory correctional information resubmitted:
1) A completed Application For Development Permit (for structure).
2) A completed Sign Permit Application.
3) A fully dimensioned site plan showing the location of the proposed billboard sign
4) A Plat of Survey.
5) Three sets of drawings signed and sealed by a currently licensed Illinois structural engineer or architect.
6) Structural calculations signed and sealed by a currently licensed Illinois structural engineer or architect.
7) An approved IDOT permit.
8) Soil borings signed and sealed by a currently licensed Illinois civil or structural Engineer.
9) A photometric footprint for any proposed illumination.
10) Plan Commission and City Council action is required to amend the current City. Zoning Code to create an approved site for this Billboard sign. Contact the Planning and Zoning Division for an application.
In its complaint, Covenant alleged that the Sign Ordinance was unconstitutional on a variety of grounds, as has been fully set out in previous decisions of this court and will not be repeated here. On June 8, 2005, the court issued a Memorandum Opinion and Order denying the City's motion to dismiss [Docket No. 21]. See Covenant Media of Ill., L.L.C. v. City of Des Plaines, Ill., 391 F.Supp.2d 682, 695 (N.D.Ill.2005). In that decision, the court determined that Covenant had alleged facts sufficient to support standing to challenge the Sign Ordinance, both as applied to it and to third parties under the over-breadth doctrine, and that the lawsuit was ripe for judicial review. The court also concluded that the Sign Ordinance unconstitutionally favored commercial speech over non-commercial speech, impermissibly discriminated among non-commercial messages, and impermissibly favored some commercial topics at the expense of others. Additionally, the court held that Covenant stated a claim that the Sign Ordinance was overbroad as a result of its failure to specify criteria to be used in determining whether a sign contains "obscene, indecent, or immoral matter" or to define those terms. The court further concluded that the Sign Ordinance granted City officials unbridled discretion to approve or deny a sign permit application and that Covenant had stated a claim that the Sign Ordinance lacked adequate procedural safeguards.
On June 22, 2005, Covenant filed its Motion for Preliminary Injunction seeking to enjoin the City from continuing to enforce the sign restrictions. Following the parties' briefing on the...
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