Scadron v. City of Des Plaines

• Citation: 180 Ill.Dec. 77,153 Ill.2d 164,606 N.E.2d 1154
• Decision Date: 19 November 1992
• Docket Number: No. 72848,72848
• Parties: , 180 Ill.Dec. 77 Robert SCADRON et al., Appellants, v. The CITY OF DES PLAINES, Appellee.
• Court: Supreme Court of Illinois

Page 1154

606 N.E.2d 1154

153 Ill.2d 164, 180 Ill.Dec. 77

Robert SCADRON et al., Appellants, v. The CITY OF DES PLAINES, Appellee.

No. 72848.

Supreme Court of Illinois.

Nov. 19, 1992.

Springer, Casey, Dienstag & Devitt, P.C., Chicago (Gary E. Dienstag and Edward M. Springer, of counsel), for appellants.

Mathias W. Delort and Burton S. Odelson, Odelson & Sterk, Ltd., Evergreen Park, for appellee.

Gordon & Glickson, P.C., Chicago (Sanford M. Stein and Sarah K. Nadelhoffer, of counsel), for amicus curiae, National Advertising Co. Siegel, Moses, Schoenstadt, & Webster, Chicago (Morton Siegel, Michael A. Moses and James L. Webster, of counsel), for amicus curiae, Miller Brewing Co.

Robert J. Weber, Chicago, for amicus curiae, Outdoor Advertising Ass'n of Ill.

Barbara J. Gosselar and Kenneth T. Kubiesa, Kubiesa & Power, Ltd., Westmont, for amicus curiae, Village of Downers Grove.

Beth Anne Janicki, Springfield, for amicus curiae, Illinois Mun. league.

Kelly R. Welsh, Corp. Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon and Jean Dobrer, of counsel), for amicus curiae, City of Chicago.

Justice THOMAS J. MORAN delivered the opinion of the court:

This court has agreed to answer the following three questions of State law which were certified by the United States Court of Appeals for the Seventh Circuit:

"1. Does the Illinois Highway Advertising Control Act of 1971 (Ill.Rev.Stat.1987, ch. 121, par. 501 et seq.) (the Act), preempt the authority of home rule municipalities to regulate outdoor advertising signs in areas subject to the Act?

2. If the Act does preempt home rule autonomy, does section 7 of the Act authorize home rule units to regulate outdoor advertising within 660 feet of federally-funded highways more restrictively than the criteria set forth in section 6?

3. If home rule units may regulate such outdoor advertising, does section 7 of the Act authorize such local municipalities to totally exclude outdoor advertising signs in areas subject to the Act?"

The district court accepted the facts alleged in the complaint as true when it rendered its memorandum opinion and order. (734 F.Supp. 1437.) For purposes of this appeal, we will also accept as true all well-pleaded facts alleged in the underlying complaint.

Plaintiffs, Robert Scadron, Jeffrey Scadron, and Barry Scadron, doing business as Scadron Enterprises (Scadron), are engaged in the business of leasing real property for the purpose of erecting advertising sign structures. Scadron then leases or donates the faces of the signs atop the structures to various advertisers for the display of commercial and noncommercial messages.

Scadron entered into a lease agreement wherein it agreed to lease a section of property at 2410 Des Plaines Avenue, Des Plaines, Illinois. The property, which is zoned for business and commercial uses, abuts an entrance ramp to I-294, also known as the Tri-State Tollway (hereinafter referred to as the tollway). Scadron applied for a building permit from the defendant, the City of Des Plaines (the City), because it wanted to erect an advertising sign structure on the property. The planned structure would be built within 660 feet of the tollway and it was going to support a dual-face billboard, with both sign faces measuring 20 feet by 60 feet. Thus, each sign face would have 1,200 square feet of display area. Scadron intended to make the billboard available for off-premise advertising of commercial and noncommercial messages. An off-premise sign is generally known as a sign which directs attention to an activity which is not conducted on the premises where the sign is located. See, e.g., National Advertising Co. v. City of Rolling Meadows (7th Cir.1986), 789 F.2d 571, 573.

Scadron obtained a permit for the construction of the sign from the State agency charged with enforcing the Act--the Illinois Department of Transportation (the Department). However, the City denied Scadron a permit. The City's sign regulations provided that no sign structure could be erected if the billboard is designed so that it would be viewed from a limited access highway, such as the tollway.

Scadron filed a three-count complaint in the United States District Court for the Northern District of Illinois, Eastern Division. (Because of the nature of the questions presented, this court will address only count III of Scadron's complaint.) In count III, Scadron alleged that the Act preempted the City's sign ordinance, thereby making the City's sign ordinance void. The City filed a motion to dismiss in which it maintained that Scadron's complaint failed to state a cause of action. After responsive memoranda were filed, the district court dismissed count III of Scadron's complaint because it believed that this court would find that the City's sign ordinance is not preempted by the Act. 734 F.Supp. at 1455.

Thereafter, Scadron appealed the matter to the United States Court of Appeals for the Seventh Circuit. On appeal, the Seventh Circuit court requested that we consider answering three questions because it opined that answers to those questions could be dispositive of the cause. We agreed to answer the certified questions pursuant to Rule 20 (134 Ill.2d R. 20), and we also allowed a number of organizations to submit briefs as amici curiae (134 Ill.2d R. 345).

According to the first question, the pivotal question of the three presented, this court is asked to determine whether the legislature intended to preempt the authority of home rule municipalities to regulate outdoor advertising in areas subject to the Act. The relevant background information pertaining to the Act is as follows. The Act went into effect in this State on July 1, 1972, in response to Congress' enactment of the Highway Beautification Act of 1965 (23 U.S.C. § 131 et seq. (1970) (the Beautification Act)). (National Advertising Co. v. Village of Downers Grove (1988), 166 Ill.App.3d 58, 60, 116 Ill.Dec. 610, 519 N.E.2d 502.) According to the Beautification Act, Congress has expressly declared that outdoor advertising signs which border the interstate highway system should be controlled to, inter alia, promote safe travel and preserve natural beauty (23 U.S.C. § 131(a) (1970)). If a State does not provide for the effective control of advertising signs located within 660 feet of interstate highways, then the Secretary of Transportation would reduce by 10% the Federal highway funds normally payable to that State (23 U.S.C. § 131(b) (1970)). Consequently, the Act was passed and it provides for the control of outdoor advertising signs located within 660 feet of interstate highways.

The pertinent provisions of the Act are as follows. The first paragraph of section 1 provides:

"The General Assembly finds and declares that the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to Interstate highways and primary highways should be regulated in order to protect the public investment in such highways, to promote the recreational value of public travel, to preserve natural beauty and to promote the reasonable, orderly and effective display of such signs, displays and devices." (Emphasis added.) (Ill.Rev.Stat.1987, ch. 121, par. 501.)

The above language closely parallels the language of section 131(a) of the Beautification Act:

"The Congress hereby finds and declares that the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to the Interstate System and the primary system should be controlled in order to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty." (Emphasis added.) 23 U.S.C. § 131(a) (1970).

A key difference though, between the Act and its Federal counterpart, is that the General Assembly has made an additional finding in the second paragraph of section 1:

"The General Assembly further finds and declares that outdoor advertising is a legitimate, commercial use of private property adjacent to roads and highways; that outdoor advertising is an integral part of the business and marketing function, and an established segment of the national economy which serves to promote and protect private investments in commerce and industry and should be allowed to operate in business areas; and that the regulatory standards set forth in Section 6 of this Act are consistent with customary use in this State and will properly and adequately carry out each and all of the purposes of this Act, more severe restrictions being inconsistent with customary use and ineffective to accomplish the purposes of this Act." (Emphasis added.) Ill.Rev.Stat.1987, ch. 121, par. 501.

Section 6 of the Act places size, lighting and spacing limitations on outdoor signs, and the limiting provisions provide, in part, as follows:

"Size. No sign may be erected which exceeds 1,200 square feet in area, 30 feet in height and 60 feet in length, including border and trim, but excluding ornamental base or apron, supports and other structural members." (Ill.Rev.Stat.1987, ch. 121, par. 506.01.)

"Lighting. (a) No sign may be erected which contains, includes or is illuminated by any flashing, intermittent or moving light or lights, except those giving public service information * * *." (Ill.Rev.Stat.1987, ch. 121, par. 506.02(a).)

"Spacing. (a) No sign may be erected or maintained in such a manner as to obscure or otherwise physically interfere with an official traffic sign * * *.

(b) Along interstate highways and expressways no two sign structures on the same side of the highway shall be erected less than 500 feet apart." Ill.Rev.Stat.1987, ch. 121, pars. 506.03(a), (b).

Concomitant with the above regulations, the legislature importantly has provided that municipal zoning authorities may also regulate the size, lighting and spacing of signs:

"In zoned commercial and industrial areas, whenever a State, county or municipal...