Peterson v. Vill. of Downers Grove, 14 C 9851

• Decision Date: 14 December 2015
• Docket Number: No. 14 C 9851,14 C 9851
• Citation: 150 F.Supp.3d 910
• Court: U.S. District Court — Northern District of Illinois
• Parties: Robert Peterson and Leibundguth Storage & Van Service, Inc., Plaintiffs, v. Village of Downers Grove, Defendant.

150 F.Supp.3d 910

Robert Peterson and Leibundguth Storage & Van Service, Inc., Plaintiffs,

v.Village of Downers Grove, Defendant.

No. 14 C 9851

United States District Court, N.D. Illinois, Eastern Division.

Signed December 14, 2015

Jacob H. Huebert, Jeffrey M. Schwab, Chicago, IL, for Plaintiffs.

Scott M. Day, Attorney at Law, Naperville, IL, for Defendant.

Memorandum Opinion and Order

Honorable Edmond E. Chang, United States District Judge

Plaintiffs Robert Peterson and Leibundguth Storage & Van Service, Inc. sued the Village of Downers Grove to challenge the constitutionality of the Village's Sign Ordinance. R. 1, Compl.¹ Plaintiffs contend that several sections of the Village's revised Ordinance, which was originally adopted in 2005 but later amended, violate the First and Fourteenth Amendments, as well as Article I, Section 4 of the Illinois Constitution.² Plaintiffs focus their challenge on the following restrictions in the Sign Ordinance: its restriction on painted wall signs, on signs that do not face a roadway or drivable right-of-way, and on the total sign area and number of wall signs permitted on a single lot. Id. Earlier in the case, the Court dismissed Peterson as named plaintiff (because really his corporation is the sole proper plaintiff), R. 29 at 10-12 (April 2015 Opinion), leaving Leibundguth Storage & Van Service, Inc. as the only remaining plaintiff. Both parties have now moved for summary judgment. R. 35, Def.'s Mot. for Summ. Judgment; R. 39, Pl.'s Mot. for Summ. Judgment. For the reasons set forth below, the Court grants the Village's motion, and denies Leibundguth's.

I. Background

The nature of Leibundguth's claims are set forth in detail in the April 2015 opinion [R. 29] that denied the Village's motion to dismiss. Peterson et al v. Village of Downers Grove , 103 F.Supp.3d 918, 920–24 (N.D.Ill.2015). The relevant facts are largely undisputed.

A. Leibundguth's Signs

Robert Peterson is a resident of Downers Grove, Illinois. R. 38-4, Exh. 5, Peterson Depo. at 15. He has owned Leibundguth Storage & Van Service, Inc., which provides moving and storage services, since the mid-1980s. Id. at 24. Leibundguth operates out of a building located between Warren Avenue and the Metra commuter-railway tracks in the Village of Downers Grove. R. 40, PSOF ¶ 5.³

On the building's north and south facing walls, signs can be found advertising Leibundguth's business. On the south wall, a sign has been painted directly onto the brick, which reads “Leibundguth Storage and Van Service / Wheaton World Wide Movers.” PSOF ¶ 7; R. 10, Am. Compl. ¶ 16; Peterson Depo., Exh. B at 10. The company's phone number is also listed. Am. Compl. ¶ 16. The sign looks like this:

Id. ¶ 1. The sign is 40 feet long, 10 feet high, and is directly visible to commuters riding by on Metra trains into and out of Chicago. Id. ¶ 16; PSOF ¶ 7. The sign does not face a roadway and is not visible to drivers. Am. Compl. ¶ 17; PSOF ¶ 5. According to Leibundguth, this sign brings in around 12 to 15 potential new customers each month, and generates between $40,000 and $60,000 in revenue per year, or about 15 to 20 percent of the company's annual revenue. Am. Compl. ¶ 18; PSOF ¶ 16.

On the front of the building, which faces north, Leibundguth has several signs. Leibundguth has another painted wall sign, which lists the company's name and phone number. Am. Compl ¶ 19; PSOF, ¶ 9. This sign is 40 feet long and 2 feet high, and is visible to drivers. Am. Compl. ¶ 19. It looks like this:

Id.

Leibundguth also has a separate sign (also on the front of the building) which spells out the company's name, “Leibundguth Storage & Van Service,” in red and white (primarily white) hand-painted block letters. PSOF ¶ 11; Am. Compl. ¶ 21. Directly beneath those words is a rectangular sign, which advertises Leibundguth's relationship with “Wheaton World Wide Moving,” a long-distance mover. PSOF ¶ 12. Neither of these signs is painted directly onto the building's exterior, but both face a roadway and can be seen by drivers. Am. Compl. ¶ 22. The portion of the sign spelling out the company's name is 19 feet long by two feet high, and the portion referencing Wheaton World Wide Moving is seven feet long by four feet high. Am. Compl. ¶¶ 20-21. These signs look like this:

Id. ¶ 21. The parties dispute whether the pictured sign(s) are one sign or two. Leibundguth argues two; the Village, one. PSOF ¶ 6; R. 46, Def.'s Resp. to PSOF ¶¶ 6, 11-12. In total, Leibundguth's signs cover more than 500 square feet of the building. Am. Compl. ¶ 42 (Leibundguth suggests they cover about 550 sq. ft.); R. 12, Ans. to Am. Compl ¶¶ 16, 19-20 (the Village asserts they cover about 665 sq. ft.).

B. The Village's Sign Ordinance

In May 2005, the Village of Downers Grove amended its sign ordinance, reducing the amount of signage permitted and prohibiting certain types of signs altogether. DSOF ¶ 15. (The Village's sign ordinance is contained in Article 9 of the Village's municipal code; for convenience's sake, this Opinion will refer to Article 9 as the “Sign Ordinance.”) The Sign Ordinance's stated purpose is “to create a comprehensive but balanced system of sign regulations to promote effective communication and to prevent placement of signs that are potentially harmful to motorized and non-motorized traffic safety, property values, business opportunities and community appearance.” R. 38-1, Exh. 2, Sign Ord. § 9.010(A).

Three of the Sign Ordinance's restrictions directly apply to Leibundguth's signs by banning painted wall signs; setting a cap on total square footage of signage; and setting a cap on the total number of wall signs. More specifically, the Ordinance prohibits “any sign painted directly on a wall, roof, or fence.” Id. § 9.020(P). It limits the “maximum allowable sign area” for each property to 1.5 square feet per linear foot of frontage (two square feet per linear foot if the building is set back more than 300 feet from the street), in no case to “exceed 300 square feet in total sign surface area.” Id. § 9.050(A). And finally, it limits the number of wall signs a lot may display to “one wall sign per tenant frontage along a public roadway or drivable right-of-way.” Id. § 9.050(C)(1). As originally enacted, this last provision prevented a property owner from displaying a sign facing the BNSF railroad, because such a sign would not be facing a roadway or drivable right-of-way. After Leibundguth filed this lawsuit, however, the Village amended this portion of the ordinance to allow “lots with frontage along the BNSF railroad” to display “one additional wall sign” facing the railroad, but limited the sign area to 1.5 square feet per linear foot of frontage along the BNSF railroad right-of-way. Def.'s Br., Exh. B, Am. Sign Ord. § 9.050(C)(5).

Leibundguth also points to § 9.030 of the Village's Sign Ordinance to show that the restrictions that apply to it are content-based. Pl.'s Br. at 16-20. Section 9.030 of the Sign Ordinance exempts certain signs—not Leibundguth's—from needing to obtain a sign permit and subjects those signs, which it identifies based on the type of sign being displayed, to different size restrictions. Sign Ord. § 9.030. For example, it exempts (among other signs) Governmental Signs, Railroad and Utility Signs, Street Address Signs, Noncommercial Flags, Real Estate Signs, Decorations displayed in connection with a Village-sponsored event, “No Trespassing” Notices, “Political and noncommercial signs,” and “Memorial signs and tablets” from needing to obtain a permit. Id. Some of the listed exemptions remain subject to size restrictions, such as “Political and noncommercial signs,” which “may not exceed a maximum area of 12 square feet per lot,” id. § 9.030(I), while others are not subject to any size restrictions at all, such as Governmental Signs and Noncommercial Flags, id. § 9.030(A), (G). None of the listed exemptions, however, are subject to the one wall-sign restriction in § 9.050(C) that Leibundguth is. The Village says that all signs (whether exempted under § 9.030 or not) remain subject to the prohibitions laid out in § 9.020, including the restriction on painted wall signs found in § 9.020(P) (but the square-footage and number-of-signs restrictions are not in § 9.020, so those restrictions do not apply to the exempted signs). DSOF ¶ 6.

Leibundguth's signs violate the Sign Ordinance in a number of ways. The Ordinance's ban on signs painted directly onto walls makes Leibundguth's Metra-facing advertisement and its similar, smaller sign on the front of the building unlawful. PSOF ¶¶ 8-9. The Ordinance also only allows the company 159 square feet for all of its signs (calculated at 1.5 square feet per linear foot of frontage, because Leibundguth's building is not set back more than 300 feet from the street), far less than the more than 500 square feet of advertising the company currently displays. PSOF ¶¶ 8-9, 13; Am. Compl. ¶ 41. And, according to Leibundguth, the Ordinance also prohibits its combined block-letter wall sign and Wheaton World Wide Moving sign, because only one wall sign can be displayed on a given wall and these signs constitute two signs. PSOF ¶¶ 11-13. The Village, of course, disputes this last point, whether Leibundguth's block-letter wall sign and Wheaton World Wide Moving sign constitute one or two signs. Def.'s Resp. PSOF ¶¶ 11-12.

When enacted, the Sign Ordinance established a grace period, giving property owners and businesses until May 2014 to bring any non-conforming signs into compliance. DSOF ¶¶ 15-16; R. 37-4, Exh. 1D at 349, 352⁴ . During that time, Leibundguth applied with the Downers Grove Zoning Board of Appeals for a variance that would allow the company to have a Metra-facing sign, painted wall signs, and total signage area that exceeded the maximum allowed under the ordinance. PSOF ¶ 18; R. 40-5, Exh. D at 2. The Zoning Board denied Leibundguth's request, and instead gave Leibundguth a four-month window (until April 2014) in which to...