Dingeman Advertising, Inc. v. Village of Mt. Zion

• Decision Date: 29 June 1987
• Docket Number: No. 4-86-0874,4-86-0874
• Citation: 109 Ill.Dec. 671,510 N.E.2d 539,157 Ill.App.3d 461
• Parties: , 109 Ill.Dec. 671 DINGEMAN ADVERTISING, INC., Plaintiff-Appellee, v. VILLAGE OF MT. ZION, a municipal corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 539

510 N.E.2d 539

157 Ill.App.3d 461, 109 Ill.Dec. 671

DINGEMAN ADVERTISING, INC., Plaintiff-Appellee, v. VILLAGE OF MT. ZION, a municipal corporation, Defendant-Appellant.

No. 4-86-0874.

Appellate Court of Illinois,

Fourth District.

June 29, 1987.

Waaler & Evans, Champaign (Jack Waaler, of counsel), for defendant-appellant.

Downing, Smith, Jorgensen & Uhl, Decatur (James A. Uhl, of counsel), for plaintiff-appellee.

Justice LUND delivered the opinion of the court:

Mt. Zion is an attractive village of approximately 4,600 people nestled in a valley area a few miles southeast of Decatur. The village is traversed by Illinois State Route 121, a Federal-aid primary highway, and adjoining this road in Mt. Zion are certain commercially zoned areas. Plaintiff, Dingeman Advertising, Inc. (Dingeman), obtained a lease in the commercial area along Route 121 and applied for a permit to erect an off-premises advertising sign which would consist of a two-sided structure with each side containing 300 square feet. A village ordinance prohibited all signs larger than 150 square feet in area "regardless of zone, placement, size, or whether the sign is an on-premise or off-premise sign." Dingeman's application was denied. Dingeman sued asking for a declaratory judgment.

On December 4, 1986, the circuit court of Macon County granted a motion for summary judgment in favor of Dingeman finding the zoning code and sign code ordinances of the village of Mt. Zion were invalid as they applied to Dingeman's application because they were in conflict with the Highway Advertising Control Act of 1971 (Ill.Rev.Stat.1985, ch. 121, par. 501 et seq.). Mt. Zion appeals. We reverse.

The issue is simple; the answer is not. Does the Highway Advertising Control Act (the Act) preempt all municipal zoning controls and establish, as a minimum advertisement requirement for all commercial areas adjoining Federal-aid primary highways, the same maximum limitation set forth in the Act? The relevant sections of the Act for purposes of this appeal are sections 1, 4.04, 6, 6.01, 6.02, 6.03, and 7 (Ill.Rev.Stat.1985, ch. 121, pars. 501, 504.04, 506, 506.01, 506.02, 506.03, and 507). Section 1 provides as follows:

"The General Assembly finds and declares that the erection and maintenance of outdoor advertising signs, displays and devices in areas adjacent to Interstate highways and primary highways should be regulated in order to protect the public investment in such highways, to promote the recreational value of public travel, to preserve natural beauty and to promote the reasonable, orderly and effective display of such signs, displays and devices.

The General Assembly further finds and declares that outdoor advertising is a legitimate, commercial use of private property adjacent to roads and highways; that outdoor advertising is an integral part of the business and marketing function, and an established segment of the national economy which serves to promote and protect private investments in commerce and industry and should be allowed to operate in business areas; and that the regulatory standards set forth in Section 6 of this Act are consistent with customary use in this State and will properly and adequately carry out each and all of the purposes of this Act, more severe restrictions being inconsistent with customary use and ineffective to accomplish the purposes of this Act." [Footnote omitted.] (Ill.Rev.Stat.1985, ch. 121, par. 501.)

The section 6 series sets forth the maximum size, lighting, and spacing of signs, setting forth limitations consistent with the requirements of the Highway Beautification Act of 1965 (23 U.S.C. sec. 131 (1982)).

Section 7 provides as follows:

"In zoned commercial and industrial areas, whenever a State, county or municipal zoning authority has adopted laws or ordinances, which include regulations with respect to the size, lighting and spacing of signs, which regulations are consistent with the intent of this Act and with customary use, then from and after the effective date of such regulations, and so long as they shall continue in effect, the provisions of Section 6 shall not apply to the erection of signs in such areas." [Footnote omitted.] Ill.Rev.Stat.1985, ch. 121, par. 507.

Dingeman contends the second paragraph of section 1 has the effect of making the maximum of the section 6 series the minimum limitations available for zoning of commercial and industrial areas. Mt. Zion contends section 7 must be given effect allowing municipalities to make more restrictive provisions than those set forth in the section 6 series.

While funds from the Federal government were the basic reason for the Act, as is often the case, conflicting interests, those of the advertising sign industry and those of the various municipalities, influenced different provisions of the legislation. The result was conflicting provisions. Section 6 of the Act sets forth the maximum limitations which were necessary to avoid the loss of Federal highway funds. Section 7 of the Act would allow municipal zoning regulation of signs as long as such are "consistent with the intent of this Act and with customary use." Section 4.04 of the Act requires erected signs in business areas to comply with the "requirements of section 5 and 6 (subject to the provisions of section 7)."

Without the second paragraph of section 1 of the Act, it would be clear that municipalities could provide restrictions on size as long as they are within the maximum and not inconsistent with "customary use." If "customary use" is, in fact, the upper limits provided by section 6, then section 7 is a nullity, as is the provision in section 4.04 referring to section 7. In fact, the use of the term "customary use" in the legislation would be a nullity. A conflict definitely exists within the Act. If "customary use" must be construed to be the maximum limitations provided by section 6, then municipalities have no authority as to size, lighting, and spacing. If "customary use" is not so limited, the municipalities may have effective zoning control over size, lighting, and spacing. The trial court's decision gave the former interpretation to the Act in ruling against Mt. Zion. There are no Illinois State court decisions on point.

In Dolson Outdoor Advertising Co. v. City of Macomb (1977), 46 Ill.App.3d 116, 4 Ill.Dec. 692, 360 N.E.2d 805, the Third Appellate District held that Macomb could not prohibit off-premises advertising, relying on sections 1, 8 and 9 of the Act. The ordinance in Dolson did not provide for selective prohibition but...