Outcom, Inc. v. Illinois Dept. of Transp.

Decision Date21 May 2009
Docket NumberNo. 106260.,106260.
Citation909 N.E.2d 806,233 Ill.2d 324
PartiesOUTCOM, INC., d/b/a Porlier Outdoor Advertising, Appellee, v. The ILLINOIS DEPARTMENT OF TRANSPORTATION et al., Appellants.
CourtIllinois Supreme Court

Lisa Madigan, Attorney General, Springfield (Michael A. Scodro, Solicitor General, Janon E. Fabiano and Brett E. Legner, Assistant Attorneys General, Chicago, of counsel), for appellants.

Jill R. Rembusch, of Summers Compton Wells PC, St. Louis, Missouri, for appellee.

OPINION

Chief Justice FITZGERALD delivered the judgment of the court, with opinion.

At issue in this appeal is whether defendant, the Illinois Department of Transportation (IDOT),1 must issue a permit to plaintiff, Outcom, Inc., a Missouri corporation doing business as Porlier Outdoor Advertising, for the erection of two billboards in the Village of Caseyville, Illinois. IDOT denied plaintiff's permit applications, concluding that plaintiff had failed to demonstrate that the proposed billboard site was continuously used for commercial or industrial activities since September 21, 1959, as required by the Highway Advertising Control Act of 1971 (225 ILCS 440/1 et seq. (West 2006)) and IDOT regulations (92 Ill. Adm.Code § 522.20 et seq., amended at 32 Ill. Reg. 17810, eff. October 30, 2008). The circuit court of St. Clair County disagreed, and ordered IDOT to issue the permits. The appellate court affirmed that ruling. 378 Ill.App.3d 739, 317 Ill.Dec. 816, 882 N.E.2d 696.

For the reasons that follow, we reverse the judgments of the appellate court and circuit court, and confirm IDOT's decision denying the permits.

BACKGROUND

The Highway Advertising Control Act of 1971 (the Act) regulates "the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to Interstate highways and primary highways." 225 ILCS 440/1 (West 2006). Implementation and enforcement of the Act resides in IDOT. 225 ILCS 440/14.01 (West 2006).

The Act permits outdoor advertising in "business areas." 225 ILCS 440/1, 4.04 (West 2006). Generally, with respect to signs along interstate highways, an area is a "business area" only if the land was used or zoned for commercial or industrial activities from September 21, 1959. 225 ILCS 440/3.12 (West 2006); 92 Ill. Adm. Code § 522.20, amended at 32 Ill. Reg. 17810, eff. October 30, 2008.2

With limited exception not relevant here, no sign may be erected without first obtaining a permit from IDOT. 225 ILCS 440/8 (West 2006); 92 Ill. Adm.Code § 522.30, amended at 30 Ill. Reg. 15792, eff. October 1, 2006. Where an application for a permit is incomplete, contains incorrect information, or does not comply with the Act or IDOT's rules and regulations, IDOT must notify the applicant in writing of its intent to deny the permit application and state the reasons for that action. 92 Ill. Adm.Code § 522.80(a), amended at 30 Ill. Reg. 15792, eff. October 1, 2006. The applicant may challenge the intent to deny, but IDOT's decision on a challenged application is final. 92 Ill. Adm.Code § 522.80(a), amended at 30 Ill. Reg. 15792, eff. October 1, 2006.

In accordance with IDOT's permitting procedures, on July 26, 2004, plaintiff submitted two applications for outdoor advertising permits to erect two signs in Caseyville along Interstate 64. According to the applications, the signs would be located eight-tenths and nine-tenths of a mile east of Highway 111, approximately 510 feet apart. The proposed signs consisted of painted panels, each panel 48 feet wide and 14 feet high, and rising 60 feet into the air on a freestanding structure. Each sign would be illuminated with eight 400-watt lights.

As shown in photographs attached to plaintiff's applications, a radio tower for WEW 77 Radio is located on the proposed billboard site which, according to other documents plaintiff provided to IDOT, was placed there sometime between December 14, 1955, and January 17, 1956. Plaintiff's photographs also reveal the presence of a steel trailer, which houses the station's transmitter equipment or ground system. The transmitter is operated remotely from the station's St. Louis, Missouri, studio. Painted on the side of the trailer are the station's call letters. Although the ground system has been at the site since the tower was placed there, the documents attached to plaintiff's applications do not indicate when the trailer, as depicted in the photographs, was first placed on the site.

The applications indicate that the billboard site is located within the Village of Caseyville and that the site is presently zoned industrial. The site, however, was not part of the village on September 21, 1959. A document from the county assessor's office, which plaintiff attached to its applications, reveals that the proposed billboard site is part of a 20-acre farm.

On August 10, 2004, IDOT notified plaintiff in writing of its intent to deny the permit applications. IDOT cited plaintiff's "[f]ailure to provide proof that the temporary trailer, serving as the transmitter and ground system for WEW 77 Radio, does meet the definition of a commercial/industrial site," within the meaning of IDOT's regulations. IDOT noted:

"Section 522.20 of the Illinois Administrative Code defines `commercial or industrial areas' as `those whose land use is devoted to commerce, industry, trade, manufacturing, highway service, highway business, warehouses, offices, or similar uses * * * and does not include the following: transient or temporary activities not involving permanent buildings or structures * * *.'"

IDOT requested that plaintiff "provide proof that the proposed property meets the definition of commercial or industrial activities and that the trailer, as shown in [plaintiff's] submitted photos, is more than the housing for the transmitter equipment."

Plaintiff challenged IDOT's intent-to-deny notice. In a letter to IDOT dated September 14, 2004, plaintiff's president, Brent M. Porlier, stated:

"From your August 10, 2004 letter, I gather the only issue at hand is whether the land use has been and is now considered business, commercial or industrial in nature.

Section 522.20 * * * list[s] land uses that are not considered business, commercial or industrial and your August 10, 2004 letter recites one of the mentioned exclusions: `transient or temporary activities not including permanent buildings or structures.' I understand a denial of our two applications would be based on this exclusion.

If you look closely at the building on our property, one can only come to the conclusion that it is a permanent structure. The physical structure is made of steel, is permanently secured/moored to the ground and is serviced with utility(s). The building is also identified commercially as `WEW 77 Radio'. This building is regularly visited by maintenance personnel. While their visits are not as frequent as say a retail business, nothing in Section 522.20 requires personnel to be at the site for a specified number of hours each day nor a specified number of days each month. Moreover, the building and tower are vital to the radio station operations. The building and tower are primary, not incidental to WEW's ability to conduct business, just as their in-town operation is primary to station operations. In this sense, both parts are inextricably linked." (Emphases in original.)

On October 5, 2004, IDOT denied plaintiff's permit applications. IDOT noted that the site had only recently been annexed into Caseyville, and that prior to annexation, the land use of the site was agricultural. "The actual presence of the tower," according to IDOT, "does not satisfy the requirements of section 522.20 of the Illinois Administrative Code * * * that requires that * * * the land on September 21, 1959 was and has continuously been used as business, commercial or industrial." (Emphasis in original.) IDOT noted that like public utilities, radio towers are found in all areas—agricultural, industrial, commercial, and residential—and do not necessarily define the site on which they are built. IDOT also referenced the "Land Use Manual of the American Planning Association," stating that the association categorizes radio towers separately from residential, commercial or industrial categories. As to the presence of the steel trailer, IDOT determined that its permanency did not change IDOT's decision, "given the fact that the site's land use on September 21, 1959 was agricultural and no proof has been presented that the site has been continuously used as an industrial site either through local zoning or through historical documentation."

Thereafter, on November 4, 2004, plaintiff filed a complaint against IDOT in the circuit court of St. Clair County. In count I, plaintiff sought a declaration that (i) the radio tower and attendant structure are not public utilities, but are a private business, commercial, or industrial activity; (ii) the use of the site since prior to September 21, 1959, has been business, commercial, or industrial; and (iii) IDOT's denial of plaintiff's permit applications was improper. In count II, plaintiff sought a writ of mandamus commanding IDOT to issue the requested permits. Plaintiff alleged that it complied with all of the requirements of the Act and administrative regulations, and that IDOT's denial of the application "for the reason that the Radio Facilities are a public utility" was improper and without a basis in Illinois law. According to plaintiff, IDOT abused its discretion in denying the permits.

The parties agreed that the pertinent facts were undisputed, and proceeded with cross-motions for summary judgment. The circuit court granted plaintiff's motion and denied IDOT's motion. The court declared that radio towers and attendant structures, in general, and the radio tower and trailer at issue here, in particular, are not public utilities, but are a private business, commercial or industrial activity, and that the site's use since prior to ...

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