Universal Outdoor, Inc. v. City of Des Plaines, 1-91-2589

• Decision Date: 11 September 1992
• Docket Number: No. 1-91-2589,1-91-2589
• Citation: 236 Ill.App.3d 75,603 N.E.2d 585,177 Ill.Dec. 515
• Parties: , 177 Ill.Dec. 515 UNIVERSAL OUTDOOR, INC. Plaintiff-Appellee, v. CITY OF DES PLAINES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 585

603 N.E.2d 585

236 Ill.App.3d 75, 177 Ill.Dec. 515

UNIVERSAL OUTDOOR, INC. Plaintiff-Appellee, v. CITY OF DES PLAINES, Defendant-Appellant.

No. 1-91-2589.

Appellate Court of Illinois First District, Sixth Division.

Sept. 11, 1992.

Rehearing Denied Nov. 13, 1992.

Thomas P. Sullivan, William A. Von Hoene, Jr., Robert R. Stauffer, Jenner & Block, Paul G. Simon, Chicago, for plaintiff-appellee.

Odelson & Sterk, Ltd., Mathias W. Delort, Burton S. Odelson, Evergreen Park, for defendant-appellant.

Justice McNAMARA delivered the opinion of the court:

Plaintiff, Universal Outdoor, Inc. (Universal), filed a complaint seeking declaratory and injunctive relief against defendant, the City of Des Plaines (the City), regarding the legality of the City's sign regulation ordinances. Thereafter, the parties entered into a settlement agreement which was approved by the trial court and which permitted Universal to construct twelve signs at specified locations within the City. The City subsequently filed a petition to vacate the trial court's judgment under section 2-1401 of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-1401). The City also filed a motion to declare the settlement null and void, claiming that the municipality was barred by law from entering into such an agreement. Upon motions filed by Universal, the trial court dismissed the City's 2-1401 petition and its motion to nullify the settlement agreement.

The City has appealed, contending that the court erred in dismissing its requests for post-judgment relief.

The record reveals that on July 22, 1986, Universal filed a twelve-count complaint against the City of Des Plaines seeking declaratory and injunctive relief. The complaint alleged in substance that the City's scheme for regulation of outdoor billboard advertising was unconstitutional and unenforceable. On February 5, 1987, Universal filed a first amended complaint which consisted of eleven counts and asserted claims which were substantially the same as those raised in the prior complaint.

Counts I through VII of the first amended complaint alleged identical claims but referred to different billboard locations. These counts asserted that the provisions of the Des Plaines Zoning Ordinance and Sign Code, as applied to these signs, were preempted by the Illinois Highway Advertising Control Act of 1971 (HACA) (Ill.Rev.Stat.1985, ch. 121, par. 501 et seq.); the zoning ordinance limitations on the height and area of signs were invalid under the HACA; the ordinances were invalid as unnecessary to promote public health, safety, and welfare; and the ordinances denied Universal its constitutional right to enjoy the highest and best use of its property.

Count VIII alleged that the ordinances were preempted by the HACA; violated Universal's constitutional rights to free speech and to equal protection in that they amounted to an impermissible ban on "off- premises" advertising; and were arbitrary and overbroad.

Count IX alleged that the ordinances were invalid because the HACA preempts the City's ability to regulate signs located near a federal-aid highway.

Count X, premised upon the assertion that the zoning ordinances constituted violations of Universal's civil rights (42 U.S.C. § 1983 (1979)), alleged that the limitations contained in the ordinances deprived Universal of its rights to free speech, to substantive due process of law, and constituted an improper "taking" without just compensation.

Count XI asserted claims similar to those raised in Count X, but was premised upon Illinois constitutional protections (Ill.Const.1970, art. I, § 4).

In its answer to the amended complaint, the City denied the substantive allegations raised in each count. Thereafter, Universal moved for summary judgment on Count IX which alleged that the ordinances were preempted by the HACA. The trial court initially granted Universal's motion for summary judgment, finding that the City's regulation of the size, width, and location of the signs was preempted by the HACA. Yet, upon reconsideration, the trial court reversed its ruling on Universal's motion and found that the City's regulations were not preempted by the HACA, but noted that § 10.5.5 of the City's zoning ordinance could not be enforced to prohibit certain signs completely.

On July 14, 1989, the parties filed a stipulation and agreement which provided that (1) Universal would be permitted to construct signs at twelve designated locations, (2) the City would issue all necessary construction permits for those signs, (3) the case would be dismissed with prejudice and without costs, and (4) Universal agreed not to apply for permits to construct any additional signs. On that date, the trial court entered an order granting the parties leave to file the stipulation and agreement. The court's order provided further that the case was dismissed, but the court retained jurisdiction of the matter in order to enforce the terms of the settlement.

The Des Plaines City Council thereafter voted to settle the litigation pending between the parties.

In accordance with the agreement and order of the court, the City issued permits to Universal for construction of the twelve specified signs. Acting in reliance on those permits and on the settlement agreement and the court's order, Universal incurred substantial expense to construct nine of the specified signs without objection from the City.

On September 19, 1990, the decision in Ad-Ex, Inc. v. City of Chicago (1990), 207 Ill.App.3d 163, 152 Ill.Dec. 136, 565 N.E.2d 669, was issued by this court.

On November 2, 1990, the City filed a verified petition under section 2-1401 of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-1401) which requested that the trial court's dismissal of the cause be vacated. It also filed a motion to declare the settlement agreement null and void.

Relying upon the decision in Ad-Ex, the City asserted that by entering into the settlement agreement, it had improperly waived the restrictions as to sign size and height which were included in the sign regulation ordinance. The City alleged further that the terms of the settlement agreement constituted a variance of the zoning ordinance without compliance with the notice and hearing requirements in the city code. In support of this claim, the City cited section 4-5-43 of the Des Plaines City Code which provided that a variation may only be granted by the City's Zoning Board of Appeals after a public hearing conducted in the manner specified by article 12 of the zoning ordinance. Article 12 of the zoning ordinance mandated that notice of the hearing must be published not more than 30 nor less than 15 days before the hearing.

The City's petition and motion alleged that because it had not followed the mandatory notice and hearing requirements before settling the case, the settlement agreement was void and unenforceable. The petition and motion also asserted that the City had a meritorious defense to Universal's claims and, in support thereof, cited the decision in Scadron v. Des Plaines (N.D.Ill.1990), 734 F.Supp. 1437, which held that the sign regulation ordinances of home rule municipalities were not preempted by the HACA. The City also cited Universal Outdoor, Inc. v. Village of Elk Grove (1990), 194 Ill.App.3d 303, 141 Ill.Dec. 208, 550 N.E.2d 1254, which held that the sign regulation ordinance of Elk Grove was not preempted by the HACA and that Universal had not pleaded sufficient facts to support its claim that the sign regulation ordinance was arbitrary, capricious, and unconstitutional on its face.

The plaintiff filed a motion seeking dismissal of the City's section 2-1401 petition and of the motion to nullify the settlement agreement. The memorandum filed in support of plaintiff's motion to dismiss asserted that the City's petition and motion failed to meet the requirements necessary to state a claim for relief from a final judgment.

On July 23, 1991, the trial court granted Universal's motion to dismiss and denied the City any relief from the settlement agreement previously approved by the court. In dismissing the City's 2-1401 petition and the motion to nullify the settlement agreement, the trial court noted that a section 2-1401 petition must affirmatively allege due diligence and the existence of a meritorious claim or defense. The court found that the City had failed to comply with these requirements. The trial court noted further that the decision in Ad-Ex was not controlling because the facts of the instant case were distinguishable from those presented in Ad-Ex.

We initially consider whether the trial court properly dismissed the City's section 2-1401 petition on the ground that it was insufficient to state a claim for relief from a final judgment. The City asserts that the trial judge abused his discretion in dismissing the City's section 2-1401 petition for failure to demonstrate due diligence or a meritorious defense.

As a general rule, a court loses the power to review its judgments after the passage of 30 days. (Brockmeyer v. Duncan (1960), 18 Ill.2d 502, 505, 165 N.E.2d 294.) Consequently, a request to vacate a prior judgment after 30 days has elapsed is properly before the trial court only when presented by petition in accordance with section 2-1401. Smith v. Airoom, Inc. (1986), 114 Ill.2d 209, 220, 102 Ill.Dec. 368, 499 N.E.2d 1381; Pape v. Department of Revenue (1968), 40 Ill.2d 442, 449-50, 240 N.E.2d 621.

The purpose of a petition under section 2-1401 is to bring before the court matters of fact not appearing in the record, which if known to the court at the time the judgment was entered, would have prevented its rendition. (Brockmeyer, 18 Ill.2d at 505, 165 N.E.2d 294; Glenn v. People (1956), 9 Ill.2d 335, 340, 137 N.E.2d 336.) Although the petition must be filed in the original proceeding, it is not a continuation thereof, but is the commencement of a new cause of action. (...