LAMAR WHITECO OUTDOOR. v. WEST CHICAGO

• Decision Date: 08 February 2005
• Docket Number: No. 2-04-0575., No. 2-03-1392
• Citation: 355 Ill. App.3d 352,823 N.E.2d 610,291 Ill.Dec. 318
• Parties: LAMAR WHITECO OUTDOOR CORPORATION, Jagen Lingamneni, and Phillip Vovola, Plaintiffs-Appellants, v. The CITY OF WEST CHICAGO and Bill Beebe, Code Enforcement Officer for the City of West Chicago, in his Official Capacity, Defendants-Appellees. Clear Channel Outdoor, Inc., f/k/a Eller Media Company, successor-in-interest to Patrick Media as successor-in-interest to Foster and Kleiser, Richard Howland, Ronald Kuhn, and Harry W. Kuhn, Plaintiffs-Appellants, v. The City of West Chicago, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

823 N.E.2d 610

355 Ill. App.3d 352

291 Ill.Dec. 318

LAMAR WHITECO OUTDOOR CORPORATION, Jagen Lingamneni, and Phillip Vovola, Plaintiffs-Appellants, v. The CITY OF WEST CHICAGO and Bill Beebe, Code Enforcement Officer for the City of West Chicago, in his Official Capacity, Defendants-Appellees.

Clear Channel Outdoor, Inc., f/k/a Eller Media Company, successor-in-interest to Patrick Media as successor-in-interest to Foster and Kleiser, Richard Howland, Ronald Kuhn, and Harry W. Kuhn, Plaintiffs-Appellants, v. The City of West Chicago, Defendant-Appellee.

Nos. 2-03-1392, 2-04-0575.

Appellate Court of Illinois, Second District.

February 8, 2005.

Rehearing Denied March 8, 2005.

Sanford M. Stein, Wallace C. Solberg, Laura C. Scotellaro, John A. Simon, Arthur M. Scheller III, Gardner, Carton & Douglas LLP, Chicago, for Lamar Whiteco Outdoor Corp., Jagen Lingamneni, Phillip Vovola.

Russell W. Hartigan, Paul A. Farahvar, Hartigan & Cuisinier, P.C., Chicago, for Bill Beebe and City of West Chicago.

Philip J. Rock, Kevin W. Horan, William M. Brennan, Rock Fusco & Garvey, Ltd., Chicago, for Clear Channel Outdoor, Inc., f/k/a Eller Media Co., Patrick Media, Foster & Kleiser, Richard Howland, Harry W. Kuhn and Ronald Kuhn.

Patrick K. Bond, Keith E. Letsche, Bond, Dickson & Associates, P.C., Wheaton, for City of West Chicago.

Justice BYRNE delivered the opinion of the court:

These consolidated appeals each involve a challenge to a City of West Chicago (City) zoning ordinance that was amended on October 19, 1992, to ban certain commercial and noncommercial off-premises advertising structures, including all billboards. The amended ordinance provided for a seven-year "amortization" period, or grace period, for removing existing nonconforming structures or making them compliant with the ordinance. The ordinance did not provide for the compensation of an individual who lost the right to display a sign.

Plaintiffs allege that they lawfully erected billboards before the City amended the ordinance to ban the structures. However, plaintiffs did not challenge the amended ordinance until the expiration of the seven-year amortization period, when the City began enforcing the ban by issuing nontraffic citations (hereinafter, tickets). Generally, plaintiffs alleged violations under section 1983 of the Civil Rights Act of 1991 (42 U.S.C. § 1983 (2000)) and section 7-101 of the Eminent Domain Act (735 ILCS 5/7-101 (West 2002)). The trial court dismissed portions of plaintiffs' complaints on statute of limitations grounds. Plaintiffs appeal, alleging that their claims did not accrue, and therefore the applicable limitations periods did not begin to run, until the amortization period expired. We conclude that both the section 1983 claims and the eminent domain claims accrued when the City issued the tickets. Because plaintiffs filed their complaints within the applicable limitations periods, we reverse the trial court's dismissal of those claims as untimely.

FACTS

The zoning ordinance scheme as amended on October 19, 1992, provides in relevant part:

"Billboard: Any single- or double-faced street graphic that is permanently fixed or placed on [a] particular premises and that is used for the display of messages or advertising not associated with the establishment located on said premises. A billboard typically has [a] provision for changing the message/advertising thereon.

* * *

12.3-1 General Prohibition

Any sign or other street graphic not expressly permitted by this ordinance shall be deemed prohibited in this municipality.

* * *

12.4-1 Strictly Prohibited Signs

The following signs are strictly prohibited everywhere in this municipality:

* * *

(G) Billboards[.]

* * *

12.4-12. Billboards

Billboards (including all off-premises advertising signs) are strictly prohibited.

12.5 ADMINISTRATION AND ENFORCEMENT

12.5-1 Enforcement Officer, Duties

The Zoning Administrator, referred to herein as the Administrator, is hereby authorized and directed to administer and enforce the provisions of this ordinance. This broad responsibility encompasses, but is not limited to, the following specific duties:

(A) to review and pass upon applications for street graphic permits;

(B) to inspect existing and newly constructed street graphics to determine compliance with this ordinance; and where there are violations, to initiate appropriate corrective action;

(C) to review and forward to the Zoning Board of Appeals all applications for special street graphic permits, variances and appeals;

(D) to maintain up-to-date records of said applications and of any official actions taken pursuant thereto;

(E) to periodically review the provisions of this ordinance to determine whether revisions are needed, and to make recommendations on these matters to the Plan Commission[.]

* * *

12.5-2 Sign Permits

Upon the effective date of this ordinance, no * * * billboard * * * shall be erected, expanded, altered, relocated, or reconstructed without a sign permit issued by the Administrator.

* * *

12.6 NONCONFORMING SIGNS

12.6-1 Restrictions

A nonconforming sign that does not pose an important peril to life or property may remain and be maintained by ordinary repairs, but shall not be:

(A) Altered or enlarged in such a way as to increase its nonconformity;

(B) Replaced by another nonconforming sign (provided that changing the message on a changeable copy sign shall not be deemed a violation of this provision);

(C) Relocated unless it is made to conform with this ordinance; or

(D) Reconstructed after incurring damage in an amount exceeding fifty percent (50%) of its market value at the time of loss as determined by the Administrator.

(E) Must be removed [sic] upon close of business.

* * *

12.6-5. Amortization

(A) Any sign that is nonconforming on the effective date of this ordinance [October 19, 1992] shall either be removed or made to comply with said ordinance within the time limit of seven (7) years.

(B) Any sign that becomes nonconforming because of any amendment to this ordinance shall either be removed or made to comply with the provisions of said ordinance within seven (7) years after its effective date." West Chicago Municipal Code §§ 12.2 through 12.6-5 (amended October 19, 1992).

1. Whiteco (Appeal No. 2-03-1392)

On March 31, 2000, Lamar Whiteco Outdoor Corp. (Whiteco), Jagen Lingamneni, and Phillip Vovola (collectively, the Whiteco plaintiffs) filed a six-count complaint in the United States District Court for the Northern District of Illinois, challenging the amended zoning ordinance. Pursuant to the abstention doctrine, the district court dismissed the complaint without prejudice to further state proceedings. Lamar Whiteco Outdoor Corp. v. City of West Chicago, No. 00-C-1994, 2001 WL 476596 (N.D.Ill. May 2, 2001). The Whiteco plaintiffs refiled the complaint in the circuit court of Du Page County on October 23, 2001.

The complaint alleges that, before the City amended the ordinance, Whiteco's predecessor-in-interest lawfully erected "billboards" on parcels currently owned by Chester Sawko and plaintiffs Lingamneni and Vovola. Count I of the complaint alleges that "the City's attempted enforcement of the [ordinance] without just compensation constitutes a regulatory taking in violation of plaintiffs' Fifth and Fourteenth Amendment rights under the United States Constitution." Count II alleges that "the content-based limitations placed on non-commercial speech by the [ordinance] violate[ ] plaintiffs' First Amendment right to free speech under the United States Constitution." Count III alleges an unreasonable limitation on the exercise of free speech in violation of the first amendment. Count IV alleges that the ordinance is unconstitutionally vague.

Count V alleges a federal civil rights claim under section 1983 of the Civil Rights Act (42 U.S.C. § 1983 (2000)) against the City and defendant Bill Beebe, the City's code enforcement officer, for the violations alleged in counts I through IV. Count VI alleges a claim for just compensation under section 7-101 of the Eminent Domain Act (Act) (735 ILCS 5/7-101 (West 2002)). On March 19, 2002, the City moved to dismiss the complaint under sections 2-615, 2-619(a)(5), and 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619(a)(5), (a)(9), 2-619.1 (West 2002)). The trial court denied the motion, and the City moved to reconsider, arguing that (1) the two-year limitations period that applies to section 1983 claims in Illinois bars count V and (2) the five-year limitations period of section 13-205 of the Code bars count VI. The court credited the City's arguments and dismissed counts V and VI under section 2-619(a)(5) of the Code, concluding that the claims accrued on the date the ordinance was amended, and therefore, both limitations periods expired before counts V and VI were filed. The trial court declined to dismiss counts I through IV, and those claims remain pending below. The trial court found no just reason to delay enforcement or appeal of the order dismissing counts V and VI, and appeal No. 2-03-1392 timely followed.

2. Clear Channel (Appeal No. 2-04-0575)

On December 14, 1999, Clear Channel Outdoor, Inc. (Clear Channel), Richard Howland, Ronald Kuhn, and Harry Kuhn (collectively, the Clear Channel plaintiffs) filed a declaratory judgment action alleging the following facts. Clear Channel erects and maintains billboards and makes them available to businesses to display commercial and noncommercial messages. Clear Channel is the successor-in-interest to businesses that erected billboards on two leased parcels in 1979 and 1984. The parcels were part of unincorporated Du Page County at the time the billboards were erected, and Richard Howland, Ronald Kuhn, and Harry Kuhn owned the parcels at the time the complaint was filed.

The City annexed the parcels in 1989 and 1991. In October 1992, the City amended its zoning ordinance to ban all commercial and noncommercial off-premises...