HARP ADVERTISING v. Village of Chicago Ridge
| Citation | 809 F. Supp. 1315 |
| Decision Date | 08 December 1992 |
| Docket Number | No. 90 C 867.,90 C 867. |
| Parties | HARP ADVERTISING ILLINOIS, INC., Plaintiff, v. VILLAGE OF CHICAGO RIDGE, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Kenneth Theodore Kubiesa, Steven Jay Kleinman, Kubiesa & Power, Ltd., Westmont, IL, for plaintiff.
Richard C. Clark, Sonia Victoria Odarczenko, Clausen, Miller, Gorman, Caffrey & Witous, P.C., Chicago, IL, Robert Bernard Baal, Bryan J. O'Connor, III, Baal & O'Connor, Chicago, IL, for defendant.
Before the court are the objections of plaintiff, Harp Advertising Illinois, Inc. ("Harp"), to Chief Executive Magistrate Judge Joan H. Lefkow's Report and Recommendation (the "Report"), submitted to this court on October 23, 1992. For the reasons that follow, the Report is adopted in its entirety, and defendant's motion for summary judgment is granted and Harp's motion for summary judgment is denied.
This case arose out of the refusal of the defendant, the Village of Chicago Ridge (the "Village"), to issue a permit to Harp for the construction of a billboard. The Village denied the permit because Harp's proposed sign did not conform to the Village's ordinances, including § 4-5-10.3(A) of the Village's sign code, which limits the area of certain sign faces to 200 square feet. Harp's amended complaint challenges §§ 4-5-5, 4-5-9, and 4-5-10-3 of the Village's sign code and §§ 5-2-1 and 5-7-3 of the Village's zoning ordinance as unconstitutional on their face and as applied. Both parties filed motions for summary judgment, which the court referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B).
On March 13, 1992, the Magistrate Judge entered a report (the "March 13 Report") finding that §§ 4-5-9 and 4-5-10-3(A) of the Village's sign code violated the First Amendment and recommending that Harp's motion for summary judgment be partially granted with respect to those sections. The Magistrate Judge further recommended that the Village's motion for summary judgment be granted with respect to her finding that §§ 4-5-5, 5-2-1 and 5-7-3 do not violate the First Amendment. Additionally, the Magistrate Judge recommended that any decision regarding the severability of any unconstitutional provisions be deferred until a resolution had been reached on all counts of the amended complaint.
After the Magistrate Judge submitted her recommendations, the Village amended its sign code, and Harp voluntarily dismissed all counts except count I of its complaint. In light of the Village's actions, the court resubmitted this matter to the Magistrate Judge for a determination as to whether the amendments to the Village's sign code were validly enacted and, if so, whether the amendments affected the March 13 Report.
In its revision of the sign code, the Village repealed § 4-5-9 and amended § 4-5-10-3(A) by deleting language that gave the Village Board discretionary authority to grant special permission to erect ground signs in excess of certain height restrictions. The Magistrate Judge found that the amended ordinance corrected the provisions that she previously found violative of the First Amendment. Therefore, the Report's recommendation is that the Village's motion for summary judgment be granted in its entirety and Harp's motion for summary judgment be denied. Harp has filed its objections to the Report, asserting three reasons why the court should reject the Report's recommendation and, instead, grant summary judgment in Harp's favor.
Harp's first objection is that the Village's sign regulations prohibit certain noncommercial messages where other commercial or noncommercial messages are permitted. The support Harp provides for this objection is turbid and irresoluble. For example, Harp claims that "the Magistrate Judge determined that off-premises political signs would be limited to the M-1 zone subject to a special use," and in support of this assertion Harp cites the Report at "3, n. 1." Footnote 1 on page 3 of the Report1 does not support this position, nor does it contain the terms "the M-1 zone" or "subject to a special use." Harp also alleges that "under § 4-5-15 of Chicago Ridge's regulations, residential and commercial property owners could not have displayed campaign signs for their candidate of choice during the recent election, as these would clearly be unlawful off-premises noncommercial political signs." Section 4-5-152 does not expressly prevent property owners from displaying political signs, and Harp has not provided the court with any basis for such an interpretation.
In a nutshell, Harp's argument that the Village's sign ordinance unconstitutionally prohibits certain noncommercial messages where other commercial or noncommercial messages are permitted is not supported by the sign ordinance, the Report, or the March 13 Report. Furthermore, Harp draws untenable conclusions from each of these sources and asks the court to make leaps of logic which it refuses to do. The court finds that the Village's regulation, as amended, is a content-neutral ordinance that furthers an important governmental interest unrelated to the suppression of free speech. United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Therefore, the court rejects Harp's allegation that the Village's sign regulations unconstitutionally prefer commercial speech over noncommercial speech and certain noncommercial messages over others.
As a second objection to the Report, Harp contends that "the Magistrate erred in treating the sign regulations previously found unconstitutional as severable from the remainder of the Village's sign regulations." In response to this objection, the Report states: "with obvious irony, Harp now insists that the court must consider the Village's sign code in its original form rather than consider amendments which correct provisions which Harp previously asserted to be unconstitutional."
Although a legislative body may not interfere with a party's vested rights, Coombes v. Getz, 285 U.S. 434, 438, 52 S.Ct. 435, 435, 76 L.Ed. 866 (1932) (), the Supreme Court has not hesitated to uphold legislation that has mooted pending lawsuits and destroyed accrued causes of action. Taxpayers for Animas-La Plata Referendum v. Animas-La Plata Water Conservancy Dist., 739 F.2d 1472, 1477 (10th Cir.1984). The court having made no ruling giving Harp a substantive right under the Village's prior ordinance, the amendments are given effect and Harp's argument fails.
Harp's final objection begins with the claim that the Village's amendments to its sign code are inconsistent with the overall purpose of the code and therefore were "made solely in an attempt to correct admitted constitutional defects." Although this is the claim, Harp fails to provide any support in its favor. Instead, Harp focuses on several provisions of the sign code that permit the Village Board to make discretionary exceptions to restrictions on certain signs. Harp, however, has never before challenged the constitutionality of these other provisions, and whether these unchallenged sections of the ordinance are unconstitutional is not before the court.
Harp is a corporation engaged in the advertising business; it leases real property, constructs a sign, and leases or donates the sign's face. It is in Harp's pecuniary interest to challenge local ordinances that prevent it from maximizing financial gain. Furthermore, because so many communities have similar regulations, it behooves Harp to make as broad a challenge to such local ordinances as possible. Harp has standing to assert that portions of the Village's regulations violated both Harp's rights and the rights of third parties not before the court. Accordingly, Harp identified those restrictions of the Village's codes which it deemed violative of the First Amendment. The provisions identified by Harp that violated the Constitution no longer exist, and therefore, do not violate the free speech rights of Harp or its advertisers.
In sum, the court has completely reviewed the Report and Harp's objections on a de novo standard. 28 U.S.C. § 636(b)(1)(C). The Court finds the Report to be thorough, accurate, and the decision proper. The court further finds Harp's objections to be without merit.
For the reasons stated above, the Court adopts and incorporates Chief Executive Magistrate Judge Lefkow's Report and Recommendation and the holdings contained therein pursuant to 28 U.S.C. § 636(b)(1). Accordingly, the Village's motion for summary judgment is granted in its entirety, and Harp's motion for summary judgment is denied.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
Plaintiff, Harp Advertising of Illinois, Inc. ("Harp"), has asked this court to find that certain provisions in a billboard regulation scheme for the Village of Chicago Ridge, Illinois ("Village") are unconstitutional. On March 13, 1992, I submitted to Your Honor a Report and Recommendation (the "March 13 Report") regarding the parties' cross motions for summary judgment as to Count I of Harp's five count amended complaint.
In the March 13 Report, I determined that §§ 4-5-9 and 4-5-10-3(A) of the Village's sign code violated the First Amendment and recommended that Harp's motion be granted with respect to those sections, but denied in all other respects. I also concluded that § 4-5-5 of the sign code and §§ 5-2-1 and 5-7-3 of the Village's zoning ordinance do not violate the First Amendment and, therefore, recommended that the Village's motion be granted as to those three sections, but denied in all other respects. Finally, I recommended that any decision regarding the severability of any unconstitutional provisions be deferred until a resolution had been reached on all counts of the amended complaint.
After I submitted my March 13 Report to Your...
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