Outcom, Inc. v. Department of Transp.

• Citation: 882 N.E.2d 696
• Decision Date: 16 January 2008
• Docket Number: No. 5-06-0659.,5-06-0659.
• Parties: OUTCOM, INC., d/b/a Porlier Outdoor Advertising, Plaintiff-Appellee, v. The DEPARTMENT OF TRANSPORTATION, Timothy Martin, Secretary of Transportation, Mary C. Lamie, District Engineer-District 8, and Jeffrey L. Keirn, District Operations Engineer-District 8, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

882 N.E.2d 696

OUTCOM, INC., d/b/a Porlier Outdoor Advertising, Plaintiff-Appellee, v. The DEPARTMENT OF TRANSPORTATION, Timothy Martin, Secretary of Transportation, Mary C. Lamie, District Engineer-District 8, and Jeffrey L. Keirn, District Operations Engineer-District 8, Defendants-Appellants.

No. 5-06-0659.

Appellate Court of Illinois, Fifth District.

January 16, 2008.

Rehearing Denied February 20, 2008.

Lisa Madigan, Attorney General, State of Illinois, Gary Feinerman, Solicitor General, Janon E. Fabiano, Assistant Attorney General, Chicago, for Appellants.

Jill R. Rembusch, Summers, Compton, Wells & Hamburg, P.C., St. Louis, MO, for Appellee.

Justice WELCH delivered the opinion of the court:

On July 26, 2004, Outcom, Inc., doing business as Porlier Outdoor Advertising (Outcom), submitted two applications to the Illinois Department of Transportation (the Department) for outdoor-advertising permits to erect two business-area signs along Interstate 64 in the Village of Caseyville (the Village). The proposed site had been annexed into the Village on February 5, 2003, and was zoned industrial. Prior to that time, the property had been in an unincorporated area and had been unzoned. A commercial radio tower and attendant structure had been continuously located upon the site since prior to September 21, 1959.

The Department denied the applications for the reason that prior to the site's annexation into the Village, the use of the site had been agricultural, notwithstanding the presence of the commercial radio tower and attendant structure, and signs are not allowed on land which has not been continuously used for "business, commercial, or industrial" purposes. The Department ruled that the presence of the radio tower and attendant structure did not constitute a use of the land for "business, commercial, or industrial" purposes.

On November 4, 2004, Outcom filed in the circuit court of St. Clair County a complaint sounding in two counts. Outcom sought a declaratory judgment that the radio tower and attendant structure is a private business, commercial, or industrial activity, that the land had been used for that purpose since prior to September 21, 1959, and that the Department's denial of Outcom's applications had been improper (count I). It further sought an order of mandamus directing the Department to issue permits to Outcom for the construction of outdoor advertising signs on the site (count II).

The parties agreed that there were no disputed issues of material fact and that the issues could be decided on the parties' cross-motions for a summary judgment. On November 8, 2006, the circuit court of St. Clair County entered its judgment, finding that the radio tower and attendant structure is a private business, commercial, or industrial activity, that the site proposed for the signs had been continuously operated for that purpose since prior to September 21, 1959, and that Outcom had fully complied with the application requirements for the sign permits and had a clear right to the relief requested in the complaint. The court ordered the Department to issue the permits without further delay. The Department appeals.

Before we address the merits, we must address Outcom's motion to strike portions of the Department's brief and the Department's response thereto. In its brief, the Department has referred to a document identified as a portion of the zoning code of the Village of Caseyville, and the document is included in the brief's appendix. This document is not included in the record on appeal and was never brought to the attention of the circuit court. Accordingly, Outcom asks that it be stricken from the Department's brief.

Generally, materials that were not before the circuit court may not be placed before the appellate court by way of an appendix to a brief. Hubeny v. Chairse, 305 Ill.App.3d 1038, 1042, 238 Ill. Dec. 976, 713 N.E.2d 222 (1999). Nevertheless, the Department asks in its brief that this court take judicial notice of the zoning code. The Department is correct that judicial notice may be taken of municipal ordinances. Szczurek v. City of Park Ridge, 97 Ill.App.3d 649, 658, 52 Ill.Dec. 698, 422 N.E.2d 907 (1981); 735 ILCS 5/8-1002 (West 2004). Accordingly, we deny Outcom's motion to strike the Department's references to the Village of Caseyville zoning code.

Outcom also asks us to strike from the Department's brief a reference to a Web site that, it argues, was not brought to the attention of the circuit court. The Department argues that reference to the Web site is contained in the record on appeal, in the Department's letter to Outcom denying the permits. This letter was attached as an exhibit to Outcom's complaint. We note, however, that the Department did not refer to the Web site or cite to it in support of its motion for a summary judgment. Nevertheless, we deny Outcom's motion to strike the Department's reference to the Web site.

The issuance of permits for outdoor advertising signs is governed by the Highway Advertising Control Act of 1971 (the Act) (225 ILCS 440/1 et seq. (West 2004)), which provides in pertinent part that signs may be erected along interstate highways only in a "business area." 225 ILCS 440/4.04 (West 2004). The Act provides in pertinent part as follows: "[A]s to signs along Interstate highways, the term `business area' includes only areas * * * where the land use, as of September 21, 1959, was established by State law as industrial or commercial[ ] or both." 225 ILCS 440/3.12 (West 2004). The Department's regulations further explain as follows:

"Areas which were unzoned on September 21, 1959[,] may qualify as business areas along Interstate highways if the applicant can show, based on contemporaneous historical records of State actions * * *[,] that the land on September 21, 1959[,] was and has continuously been used as business, commercial[,] or industrial." 92 Ill. Adm.Code § 522.20 amended at 30 Ill. Reg. 15792 (eff. October 1, 2006).

Finally, the Act defines commercial or industrial activities as follows:

"`Commercial or industrial activities' means those activities * * * generally recognized as commercial or industrial by zoning authorities in this State[ ] but does not include the following:

(a) Agricultural, forestry, ranging, grazing[,] and farming activities, including wayside fresh produce stands and grain storage bins;

(b) Railroad tracks and minor sidings;

(c) Transient or temporary activities not involving permanent buildings or structures;

(d) Outdoor advertising structures;

(e) Activities not visible from a main-traveled way;

(f) Activities conducted in a building principally used as a residence." 225 ILCS 440/3.10 (West 2004).

Accordingly, for signs located along an interstate highway within an area that was unincorporated and unzoned on September 21, 1959, a "business area" includes only those areas that have been continuously used for "business, commercial[,] or industrial" purposes from that date through the present. 92 Ill. Adm.Code § 522.20 amended at 30 Ill. Reg. 15792 (eff. October 1, 2006). Land used for agricultural or farming activities expressly does not qualify as being used for those purposes. 225 ILCS 440/3.10(a) (West 2004).

It is undisputed that the site in question was unzoned and unincorporated on September 21, 1959, and that a commercial radio tower and attendant structure had been located on the site since sometime prior to that date. It is also undisputed that the radio tower is for the use of a commercial radio station, the attendant structure is a steel trailer permanently moored to the ground with "WEW 77 RADIO" printed in large letters on its side, and the facility is serviced by utilities, regularly visited by maintenance personnel, operated by remote control from St. Louis, and vital, not incidental, to the radio station operations. The parties dispute only whether the radio tower and attendant structure is a "business, commercial, or industrial" use of the land or whether the land is actually used for agricultural or farming activities. This was a question of law that was appropriate for a summary judgment. We apply a de novo standard of review to a circuit court's decision granting a summary judgment. See Samour, Inc. v. Board of Election Commissioners of the City of Chicago, 224 Ill.2d 530, 542, 310 Ill.Dec. 326, 866 N.E.2d 137 (2007).

The Department initially argues that a declaratory judgment action is not proper to review the Department's administrative decision denying the permit applications. Relying on Alicea v. Snyder, 321 Ill.App.3d 248, 253, 254 Ill.Dec. 839, 748 N.E.2d 285 (2001), the Department argues that a common law writ of certiorari is the appropriate method for obtaining circuit court review of administrative actions when the act conferring power on the agency does not expressly adopt the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2004)) and provides for no other form of review. We note that the Department made no such argument in the circuit court and failed to object to the form of remedy chosen by Outcom. The Department raises this issue for the first time on appeal. Accordingly, the issue is waived. See Byron Material, Inc. v. Ashelford, 34 Ill.App.3d 301, 306, 339 N.E.2d 26 (1975); Transport Insurance Co. v. Old Republic Insurance Co., 6 Ill.App.3d 844, 847, 286 N.E.2d 755 (1972); Bituminous Casualty Corp. v. Wilson, 119 Ill.App.3d 454, 459, 75 Ill.Dec. 13, 456 N.E.2d 696 (1983).

The Department next argues that the circuit court erred in finding that the use of the subject property had historically been for "business, commercial, or industrial" purposes. The Department argues that the use of the land had historically been agricultural and that the presence of the radio tower and attendant structure without a radio station or any other activity...