Robert Peterson & Leibundguth Storage & Van Serv., Inc. v. Vill. of Downers Grove
Decision Date | 27 April 2015 |
Docket Number | No. 14 C 09851,14 C 09851 |
Citation | 103 F.Supp.3d 918 |
Parties | Robert Peterson and Leibundguth Storage & Van Service, Inc., Plaintiffs, v. Village of Downers Grove, Defendant. |
Court | U.S. District Court — Northern District of Illinois |
Jacob Horst Huebert, Jeffrey M. Schwab, Chicago, IL, for Plaintiffs
Scott M. Day, Naperville, IL, for Defendant
This case tests the extent to which a local government may restrict the display of commercial advertisements on privately-owned buildings. In 2005, the Village of Downers Grove, which sits about 25 miles west of Chicago, changed its rules on the display of commercial signs. Robert Peterson is the owner of Leibundguth Storage & Van Service, Inc., which has displayed several large signs identifying and advertising its business on the outside of its Downers Grove location for decades. Leibundguth says that these signs are an important source of business, but they run afoul of both the type and quantity restrictions of the amended sign ordinance. Peterson and Leibundguth seek a declaratory judgment that the ordinance violates the First and Fourteenth Amendments of the United States Constitution and Article I, Section 4 of the Illinois Constitution; a permanent injunction against enforcing the ordinance; one dollar in nominal damages; and costs and attorney's fees.1
For its part, the Village has brought a counterclaim asking the Court to declare that the sign ordinance is valid and to order Plaintiffs to comply with their terms and pay any applicable fines. The Village now moves to dismiss the amended complaint, arguing that Plaintiffs are barred by certain Illinois statutes of limitations and lack standing to assert injury, and that the sign limitations are content-neutral, “time, place, and manner” restrictions allowed by the Constitution. For the reasons explained in this Opinion, the motion is denied in large part and granted only to dismiss Peterson as an individual plaintiff from the action.
All of the amended complaint's factual allegations must be accepted as true and reasonable inferences drawn in Plaintiffs' favor for purposes of this motion to dismiss. Ashcroft v. al-Kidd,563 U.S. 731, 131 S.Ct. 2074, 2079, 179 L.Ed.2d 1149 (2011). In any event, the operative facts in the amended complaint are not really in dispute.
Leibundguth is a licensed moving and storage business, owned solely by Robert Peterson since 1985. R. 10, Am. Compl. ¶¶ 10, 11, 13. For 80 years, Leibundguth has operated out of a warehouse located between Warren Avenue and the Metra commuter-railway tracks in the Village of Downers Grove. Id.¶ 14. For the past 70 of those years, there has been a sign painted (with minor alterations along the way) directly onto the brick on the back of this building, reading “Leibundguth Storage and Van Service / Wheaton World Wide Movers,” along with the company's phone number. Id.¶¶ 1, 16. .) The text is in large letters, colored black, grey, and red on a white background. Photograph at Id.¶ 1. It looks like this:
The sign is 40 feet long, 10 feet high, and is directly visible to thousands of commuters riding by on Metra trains into and out of Chicago each day. Id.¶¶ 16, 17.2It does not face a roadway and is not visible to any drivers. Id.¶ 17. Plaintiffs assert that the sign is crucial for business, leading to approximately 12 to 15 potential customers per month who call having learned about the company from the sign.
Id.¶ 18. This volume generates between $40,000 and $60,000 annually, which translates to 15 to 20 percent of Leibundguth's revenue. Id.
More signs are found on the wall on the front side of the building, facing the street. One sign, which is painted directly onto the brick on a white background, reads “Leibundguth Storage Van Service,” along with the company phone number. Id.¶ 19. This sign measures 40 feet in length by 2 feet in height and has also been on the building for 70 years. Id.Hand-painted block letters attached on the other side of the front-facing wall spell out “Leibundguth Storage & Van Service,” a display that measures about 19 feet by 2 feet. Id.¶ 20. Those words have been on the building since at least 1971. Id.Directly beneath those words is a rectangular sign affixed to the building that advertises “Wheaton World Wide Moving,” in place since 1987, when it replaced a previous sign bearing the former name of Wheaton World Wide Moving; that sign had hung there since the mid–1970s. Id.¶ 21. Plaintiffs allege that these street-facing signs are important to identify Leibundguth, and its relationship with Wheaton World Wide Moving and its services, to passersby and customers. Id.¶ 22.
Unfortunately for Leibundguth, in May 2005, the Downers Grove Village Council amended the Village sign ordinance, reducing the amount of signage permitted and prohibiting certain types of signs altogether. Id.¶ 26. (The amended complaint does not make clear what the relevant portions of the ordinance looked like prior to the 2005 amendment.) The amended 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. 10–1, Sign Ord. § 9.010(A).
Towards those ends, the ordinance includes three specific restrictions at issue in this lawsuit. First, it prohibits “any sign painted directly on a wall, roof, or fence.” Id.§ 9.020(P). It also 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). Finally, “[e]ach business or property owner is allowed to display one wall sign per tenant frontage along a public roadway or drivable right-of-way.” Id.§ 9.050(C). Businesses and other properties in certain zones and the business district are exempted from these restrictions. Id.§§ 9.020(P); 9.050. Leibundguth is located one block outside the downtown business district and apparently does not fall into one of the other exempted areas. Am. Compl. ¶ 29.
Leibundguth's signs therefore violate the ordinance in a number of ways. The prohibition on signs painted directly onto walls makes the Metra-facing advertisement and the similar, smaller sign on one of the front walls unlawful in themselves. Am. Compl. ¶ 29. By Plaintiffs' calculation, the ordinance also only allows them 159 square feet for all of their signs (calculated at 1.5 square feet per linear foot of frontage, as the Leibundguth warehouse is not set back more than 300 feet from the street), far less than the 546 square feet of advertising they currently display. Id.¶¶ 41, 42. Plaintiffs additionally interpret the “one wall sign per tenant frontage along a public roadway” requirement as prohibiting their sign facing the Metra tracks, as the Village Council and Zoning Board of Appeals has concluded that the rail tracks do not qualify as “a public roadway or drivable right-of-way.” Id.¶ 31.
Plaintiffs allege that the Village has allowed some businesses to evade the ordinance's requirements. Id.¶ 33. The ordinance does provide, for instance, exemptions or eased restrictions for property-owners along interstate highways to put up large, “monument” signs to reach drivers, as well as for storefronts located in shopping centers. SeeSign Ord. §§ 9.030(B). More importantly, the ordinance also categorically exempts from all of its restrictions certain signs, including: governmental and other public signs, railroad and utility signs, street address signs, “no trespassing” notices, real estate signs, “memorial signs and tablets,” garage sale notices, and “political signs and noncommercial signs, provided that total area ... not exceed a maximum area of 12 square feet per lot” and they are not “placed in the public right-of-way.” Id.§ 9.030.
The ordinance established an amortization period by which all signs in the Village had to come into compliance, which expired in May 2014. Am. Compl. ¶ 56; Sign Ord. § 9.090(G). The amortization period did not offer any compensation to affected property owners, although any sign previously granted a variance could continue to be nonconforming. Am. Compl. ¶ 56; Sign Ord. §§ 9.090(G); 9.09(H). Now that the compliance period is over, Leibundguth faces fines up to $750 per violation per day, Am. Compl. ¶ 63 (citing Downers Grove Municipal Code), although the Village has agreed to not assess any fines until there is decision on the anticipated summary-judgment motions, R. 11, Minute Entry dated Jan. 30, 2015.
In September and October 2014, Peterson attended Village Council meetings, where resolutions to amend the sign ordinance to allow signs to face the Metra tracks were introduced. Am. Compl. ¶ 59. They failed. See,R. 10–3, Sep. 2 and Oct. 7, 2014 Village Council Mtg. Minutes. Peterson also applied with the Downers Grove Zoning Board of Appeals for variances that would allow Leibundguth a Metra-facing sign, signs painted directly on the wall of the building, and total signage that exceeded the restrictions. Id.¶ 60. The Zoning Board denied the request on November 19, 2014, giving Leibundguth until April 17, 2015 to paint over the painted signs in a solid color. Id.¶ 60; seeR. 10–4, Patrick Ainsworth Ltr. dated Nov. 26, 2014.
After losing on the variance request, Plaintiffs filed this action on December 8, 2014. R. 1, Compl. Count One of the amended complaint challenges the “sign ordinance's content-based restrictions.” Am. Compl., Count I. Count Two challenges the ban on painted wall signs in particular, Count...
To continue reading
Request your trial-
Second Amendment Arms v. City of Chi.
...as to how a defendant could meet such a burden absent at least some discovery. See, e.g., Peterson v. Vill. of Downers Grove, 103 F.Supp.3d 918, 930–31, 2015 WL 1929737, at *9 (N.D.Ill. Apr. 27, 2015) (engaging in an extensive analysis of a facial challenge to a commercial-speech regulation......
-
Peterson v. Vill. of Downers Grove, 14 C 9851
...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 SignsRobert Peterson is a resident of Downers ......
-
In re Dealer Management Systems Antitrust Litigation, Case No. 18-cv-864
...because Defendant fails fully to develop these arguments, the Court will not consider them at this time. Peterson v. Vill. of Downers Grove , 103 F.Supp.3d 918, 925 (N.D. Ill. 2015) ("Arguments raised for the first time in reply briefs are ordinarily waived, and rightly so given the lack of......
-
Keystone Montessori Sch. v. Vill. of River Forest
...Municipal Code, and is a request for relief against an alleged ongoing harm." (Emphasis in original.) Peterson v. Village of Downers Grove , 103 F. Supp. 3d 918, 924 (N.D. Ill. 2015).We find this decision highly persuasive. Keystone similarly raised constitutional and public policy claims1 ......