Universal Outdoor, Inc. v. Village of Elk Grove

• Citation: 194 Ill.App.3d 303,141 Ill.Dec. 208,550 N.E.2d 1254
• Decision Date: 08 February 1990
• Docket Number: No. 1-88-2271,1-88-2271
• Parties: , 141 Ill.Dec. 208 UNIVERSAL OUTDOOR, INC., an Illinois corporation, Plaintiff-Appellant, v. The VILLAGE OF ELK GROVE, an Illinois municipal corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1254

550 N.E.2d 1254

194 Ill.App.3d 303, 141 Ill.Dec. 208

UNIVERSAL OUTDOOR, INC., an Illinois corporation, Plaintiff-Appellant, v. The VILLAGE OF ELK GROVE, an Illinois municipal corporation Defendant-Appellee.

No. 1-88-2271.

Appellate Court of Illinois First District, Fourth Division.

Feb. 8, 1990.

Schain, Firsel & Burney, Chicago, for plaintiff-appellant.

George B. Knickerbocker, Samelson, Knickerbocker & Payne, Des Plaines, for defendant-appellee.

Justice JOHNSON delivered the opinion of the court:

This is an appeal from the circuit court of Cook County granting a motion filed by defendant, the Village of Elk Grove, to strike and dismiss, pursuant to section 2-615 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-615), an amended complaint filed by plaintiff, Universal Outdoor Inc. The following issues are presented for review: (1) whether the Illinois Highway Advertising Control Act of 1971 (Ill.Rev.Stat.1987, ch. 121, par. 501 et seq.) preempts defendant's more restrictive sign ordinance, and (2) whether plaintiff's amended complaint states a cause of action.

We affirm.

Plaintiff is engaged in the business of outdoor advertising. Allegedly, plaintiff entered into several lease agreements to construct outdoor advertising structures on seven sites located within defendant's corporate limits. The lease agreements, which were conditioned upon plaintiff obtaining state and local permits, allowed for the construction of double-faced billboards, 672 square feet per face and would range from 30 to 60 feet in height. Defendant denied the permits because of various ordinance violations.

Plaintiff filed a complaint seeking injunctive and other relief due to defendant's denial of the requested permits. This complaint was stricken because it combined various causes of action in separate counts in violation of section 2-603(b) of the Code of Civil Procedure. (Ill.Rev.Stat.1987, ch. 110, par. 2-603(b).) Plaintiff then filed an amended complaint. Defendant moved to dismiss the amended complaint as substantially insufficient at law pursuant to section 2-615 of the Code of Civil Procedure. (Ill.Rev.Stat.1987, ch. 110, par. 2-615.) The trial court granted defendant's motion and dismissed plaintiff's amended complaint with prejudice. This appeal followed.

Dismissal is proper where plaintiff makes conclusory allegations without factual basis; specific facts must be pleaded upon which such conclusions rest. (Tru-Link Fence v. Donnelley Corp. (1982), 104 Ill.App.3d 745, 752, 60 Ill.Dec. 289, 432 N.E.2d 1188.) Well pleaded facts must be taken as true but conclusions need not be accepted. Chicago Teachers Union v. Board of Education of Chicago (1973), 14 Ill.App.3d 154, 156, 301 N.E.2d 833.

In determining the propriety of dismissal of an action, the appellate court is only concerned with questions of law presented by the pleadings. The sufficiency of the complaint is determined by whether the essential elements of a cause of action are alleged. (Beese v. National Bank of Albany Park (1980), 82 Ill.App.3d 932, 933, 38 Ill.Dec. 364, 403 N.E.2d 595.) We find that the trial court properly dismissed plaintiff's complaint for failure to state a cause of action.

Plaintiff first contends that defendant's local regulation of signs is preempted by the Highway Advertising Control Act of 1971. (Ill.Rev.Stat.1987, ch. 121, par. 501 et seq.) (hereinafter Act.) Plaintiff argues that under the terms of the Act, state legislation has preempted local municipalities from regulating the location or size of outdoor advertising signs which are located within 660 feet of the right-of-way of interstate and Federal aid primary highways when the sign faces are visible therefrom. Section 1 of the Act 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 * * * 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.

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." Ill.Rev.Stat.1987, ch. 121, par. 501.

Section 6.01 of the Act sets forth maximum size, lighting and spacing limitations consistent with the Federal requirements of the Highway Beautification Act of 1965. (23 U.S.C. § 131 (1982).) With respect to size, the section provides:

"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 * * *. The maximum size limitation shall apply to each side of a sign or sign structure. A maximum of 2 signs may be erected in a facing, in which event the facing shall be deemed to be one sign, the size of which may not exceed the dimensions listed in this Section." (Ill.Rev.Stat.1987, ch. 121, par. 506.01.)

Section 7 provides:

"In zoned commercial and industrial areas, whenever a State, county or municipal zoning authority has adopted laws or ordinances, which include regulations with respect to the size, lighting and spacing of signs, which regulations are consistent with the intent of this Act and with customary use, then from and after the effective date of such regulations, and so long as they shall continue in effect, the provisions of Section 6 shall not apply to the erection of signs in such areas." Ill.Rev.Stat.1987, ch. 121, par. 507.

Defendant's ordinance, which is more restrictive than the Act, limits the size of the billboards to 25 feet in length and height and 300 square feet in surface area. Billboards are permitted on unimproved lots in its industrial zoned areas but are not permitted to be within 50 feet of an adjoining residential use district if the billboard is designed to face into and be visible from such district.

Section 7 and section 1 of the Act are incongruous due to the conflicting interests of the advertising sign industry and various municipalities. "The main purpose of the Act was to obtain Federal funds and that entailed maximum limitation on advertising signs. The protection for the advertising industry indicated by section 1 was an offshoot of the legislation. Section 7 was a protection for municipalities desiring additional limitations." Dingeman Advertising, Inc. v. Village of Mt. Zion (1987), 157 Ill.App.3d 461, 464, 109 Ill.Dec. 671, 510 N.E.2d 539.

Although there is nothing in the Act that would indicate which section is to prevail, we agree with the court's reasoning in Dingeman Advertising, Inc. v. Village of Mt. Zion (1987) 157 Ill.App.3d 461, 465, 109 Ill.Dec. 671, 510 N.E.2d 539, that to prevent various home rule municipalities from enacting more restrictive regulations would be absurd and contrary to the purpose of the Act which is "to preserve natural beauty and to promote the reasonable, orderly, and effective display of such signs, displays and devices." Ill.Rev.Stat.1987, ch. 121, par. 501.

In construing the conflicting sections, the court in Dingeman found that statutes should not be construed as containing superfluous provisions and that insofar as section 7 and section 1 conflict, section 7 controls. Dingeman, 157 Ill.App.3d at 464-65, 109 Ill.Dec. 671, 510 N.E.2d 539; see also, National Advertising Co. v. Village of Downers Grove (1988), 166 Ill.App.3d 58, 116 Ill.Dec. 610, 519 N.E.2d 502 (holding that "section 7 should control, in the absence of any legislative determination of which conflicting interest should prevail").

Plaintiff relies primarily upon National Advertising Co. v. City of Rolling Meadows (7th Cir.1986), 789 F.2d 571, and Dolson Outdoor Advertising v. City of Macomb (1977), 46 Ill.App.3d 116, 4...