T & S Signs, Inc. v. Village of Wadsworth

• Decision Date: 10 May 1994
• Docket Number: No. 2-93-0638,2-93-0638
• Citation: 199 Ill.Dec. 467,261 Ill.App.3d 1080,634 N.E.2d 306
• Parties: , 199 Ill.Dec. 467 T & S SIGNS, INC., Plaintiff-Appellant, v. The VILLAGE OF WADSWORTH, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 306

634 N.E.2d 306

261 Ill.App.3d 1080, 199 Ill.Dec. 467

T & S SIGNS, INC., Plaintiff-Appellant, v. The VILLAGE OF WADSWORTH, Defendant-Appellee.

No. 2-93-0638.

Appellate Court of Illinois Second District.

May 10, 1994.

Diamond, LeSueur & Roth, Associates, Carl N. Isermann, David C. LeSueur (argued), McHenry, for T & S Signs, Inc.

John M. Mullen (argued), Libertyville, for Village of Wadsworth.

Justice McLAREN delivered the opinion of the court:

The plaintiff, T & S Signs, Inc., filed an action for declaratory, injunctive, and mandamus relief, and damages on the theory of inverse condemnation (see 225 ILCS 440/9 (West 1992)), when the defendant, the Village of Wadsworth (Village), interfered with the plaintiff's efforts to erect an advertising sign for which the plaintiff obtained a permit issued by the State of Illinois (see 225 ILCS 440/8 (West 1992)). The trial court granted the defendant's motion to dismiss, and the plaintiff appealed. The issue on appeal is whether the Village, a non-home-rule municipality, may enact more stringent regulations in the area of outdoor advertising than those provided by the Highway Advertising Control Act of 1971(Act) (225 ILCS 440/1 et seq. (West 1992)). For the following reasons, we affirm.

The plaintiff is an Illinois corporation engaged in the business of erecting and maintaining advertising signs. The plaintiff owns a parcel of land in the Village of Wadsworth which is located west of Route 41 and adjacent to Interstate 94. The property is zoned for business purposes.

On May 21, 1992, the State of Illinois Department of Transportation (DOT) issued an outdoor advertising permit which authorized the plaintiff to erect and maintain an off-premises, illuminated, outdoor advertising sign on the subject property. The sign was proposed to be 1,200 square feet; 60 feet high and 20 feet wide. It would be located 150 feet south of the centerline of Edwards Road and 1,000 feet west of the southeast corner of Edwards Road and Mill Creek Road, adjacent to Interstate 94.

The Village refused to issue the plaintiff a permit to erect the sign because the proposed sign violated a Village zoning ordinance. The ordinance precludes off-premises advertising, illumination of signs, and limits the size of a sign in this zoning district and location to 150 square feet and a maximum height of 40 feet. The Village thwarted the plaintiff's efforts to erect the sign by issuing notices and threatening arrest.

On December 21, 1992, the plaintiff filed a three-count complaint against the Village. The complaint alleged that DOT issued an outdoor advertising permit which approved the plaintiff's plans for the advertising sign on the subject property. Since the Village has less than 25,000 inhabitants and has not elected by referendum to become a home rule unit of local government, the plaintiff's complaint asserted that the permit issued by DOT pursuant to the Act (225 ILCS 440/1 et seq. (West 1992)) provides full and complete authority governing the erection and maintenance of an advertising sign on the subject property. According to the plaintiff, the Village ordinance is preempted by the Act.

In count I, the plaintiff sought a judicial declaration authorizing the erection of the sign, or, alternatively, an injunction restraining the Village from interfering with the erection of the sign. Count II prayed that the court issue a writ of mandamus commanding the Village to give any and all approvals or permits necessary to erect the sign. Count III sought damages on the theory of inverse condemnation, to compensate the plaintiff for the Village's taking of the subject property.

The Village responded by filing a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 1992)), or, alternatively, pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 1992)). The motion alleged that the plaintiff's complaint failed to state a cause of action since Village zoning ordinances are independent of the Act and prohibit the plaintiff from erecting the proposed sign on the subject property.

Thereafter, the plaintiff moved for partial summary judgment (735 ILCS 5/2-1005(c) (West 1992)) on counts I and II of the complaint. The motion alleged that there was no genuine issue of material fact which would preclude the court from entering judgment in the plaintiff's favor on counts I and II, since the permit issued by DOT "provides full and complete authority for erection and maintenance" of the sign.

On May 6, 1993, the trial court granted the Village's motion to dismiss the plaintiff's complaint with prejudice. The court found there was no just reason to delay enforcement of the dismissal. (134 Ill.2d R. 304(a).) The plaintiff appealed.

In the present case, the Village moved to dismiss the plaintiff's complaint pursuant to section 2-619 of the Code. As an alternate basis for dismissal, the Village moved to dismiss under section 2-615. The legal theories for proceeding on a motion to dismiss under sections 2-615 and 2-619 differ. A section 2-615 motion attacks the legal sufficiency of the complaint by asserting that it fails to state a cause of action upon which relief can be granted. Under section 2-619, a party admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter which avoids or defeats the claim. (See Bank of Northern Illinois v. Nugent (1991), 223 Ill.App.3d 1, 7-8, 165 Ill.Dec. 514, 584 N.E.2d 948.) Since the Village's motion to dismiss alleged that the plaintiff's complaint failed to state a cause of action, we will assume that the court dismissed the complaint on this theory and under section 2-615 of the Code.

When the legal sufficiency of a complaint is challenged by a section 2-615 motion to dismiss, all well-pleaded facts alleged in the complaint are taken as true. On review of a section 2-615 dismissal, we must determine whether the allegations of the complaint, when interpreted in a light most favorable to the plaintiff, sufficiently set forth a cause of action on which relief may be granted. (DiBenedetto v. Flora Township (1992), 153 Ill.2d 66, 76, 178 Ill.Dec. 777, 605 N.E.2d 571; Howard v. Druckemiller (1992), 238 Ill.App.3d 937, 941, 183 Ill.Dec. 148, 611 N.E.2d 1.) The motion should be granted only if the plaintiff can prove no set of facts to support the cause of action asserted. (Gouge v. Central Illinois Public Service Co. (1991), 144 Ill.2d 535, 542, 163 Ill.Dec. 842, 582 N.E.2d 108.) This process does not require the court to weigh findings of fact or determine credibility. As such, the reviewing court is not required to defer to the trial court's judgment and will review the matter de novo. Toombs v. City of Champaign (1993), 245 Ill.App.3d 580, 583, 185 Ill.Dec. 755, 615 N.E.2d 50. The pivotal issue in this case is whether the Act (225 ILCS 440/1 et seq. (West 1992)) preempts the authority of non -home-rule municipalities to enact more stringent outdoor advertising regulations than those provided by the Act.

The stated purpose of the Act is to regulate the use of advertising signs and devices in areas adjacent to interstate highways and primary highways "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." (225 ILCS 440/1 (West 1992).) The Act became effective 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 Lady Bird Bill).) Under the Beautification Act, 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 the Federal highway funds normally paid to that State by 10%. (23 U.S.C. § 131(a) (1970).) To ensure the receipt of funds, the Act was passed in Illinois to provide for the control of outdoor advertising signs located within 660 feet of interstate highways.

Section 6 of the Act (225 ILCS 440/6 (West 1992)) provides restrictions on the size, lighting, and spacing of signs which are erected in "business areas," defined in section 3.12 of the Act as follows:

" 'Business area' means any part of an area adjacent to and within 660 feet of the right-of-way which is at any time zoned for business, commercial or industrial activities under the authority of any law of this State; or not so zoned, but which constitutes an unzoned commercial or industrial area as defined in Section 3.11. However, as to signs along Interstate highways, the term 'business area' includes only areas which are within incorporated limits of any city, village, or incorporated town, as such limits existed on September 21, 1959, and which are zoned for industrial or commercial use, or both, or to portions of Interstate highways which traverse other 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 1992).)

The restrictions of section 6 limit the size of a sign to 1,200 square feet, 30 feet high and 60 feet wide. (225 ILCS 440/6.01 (West 1992).) Signs that do not give public service information may not be illuminated by flashing, intermittent, or moving lights. (225 ILCS 440/6.02 (West 1992).) No sign may be erected that obscures or interferes with an official traffic sign, and signs on the same side of interstate highways and expressways must be erected at least 500 feet apart. 225 ILCS 440/6.03 (West 1992).

Section 1 of the Act specifically states 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...