Whiteco Metrocom Div. v. Village of Downers Grove

• Court: Appellate Court of Illinois
• Writing for the Court: UNVERZAGT
• Citation: Whiteco Metrocom Div. v. Village of Downers Grove, 553 N.E.2d 1145, 197 Ill.App.3d 174, 143 Ill.Dec. 159 (Ill. App. 1990)
• Decision Date: 24 April 1990
• Docket Number: No. 2-89-0612,2-89-0612
• Parties: , 143 Ill.Dec. 159 WHITECO METROCOM DIVISION, a division of Whiteco Industries, Inc., Plaintiff-Appellant, v. The VILLAGE OF DOWNERS GROVE, Defendant-Appellee.

Page 1145

553 N.E.2d 1145

197 Ill.App.3d 174, 143 Ill.Dec. 159

WHITECO METROCOM DIVISION, a division of Whiteco Industries Inc., Plaintiff-Appellant, v. The VILLAGE OF DOWNERS GROVE, Defendant-Appellee.

No. 2-89-0612.

Appellate Court of Illinois Second District.

April 24, 1990.

James R. Morrin (argued), Douglas R. Prochnow, Lawrence D. Mishkin, E. Regan Daniels, Wildman, Harrold, Allen & Dixon, Chicago, for Whiteco Metrocom Div.

John B. Murphey (argued), Rosenthal, Murphey, Coblentz & Janega, Chicago, Barbara J. Gosselar, Kubiesa & Power, Ltd., Westmont, for Village of Downers Grove.

Presiding Justice UNVERZAGT delivered the opinion of the court:

The plaintiff, Whiteco Metrocom Division (Whiteco), seeks reversal of a judgment on the pleadings entered by the circuit court of Du Page County in its two-count complaint for declaratory judgment against the defendant, the Village of Downers Grove. On leased property at 1023 Butterfield Road in Downers Grove, Whiteco, which was engaged in the business of outdoor advertising, proposed to erect two double-faced outdoor advertising display signs, each to be located within 660 feet of U.S. Interstate 88 (I-88). Each of the sign faces was to be 60 feet wide and 20 feet high and have a total display area of 1,200 square feet. The bottom of the sign was to be 60 feet above grade, and the sign would be oriented so that it was viewable by eastbound and westbound vehicles on I-88.

As proposed, the signs complied with certain relevant provisions of the Highway Advertising Control Act of 1971 (the Act) (Ill.Rev.Stat.1987, ch. 121, pars. 504, 504.04, 506, 506.01). In particular, section 6.01 of the Act provides in pertinent part: "No sign may be erected which exceeds 1200 square feet in area, 30 feet in height and 60 feet in length." The Illinois Department of Transportation, the State agency charged with the administration of the Act, granted permits for the signs, but the Village of Downers Grove, a home rule unit, advised Whiteco that it would deny any application for signs which exceeded the sign face size and height limitations contained in article IX, section 5.3-1(c) of its zoning ordinance. Section 5.3-1(c) regulates signs in the B-3 zoning district in Downers Grove; the property on which the proposed signs were to be erected is located in a B-3 zoning district. Inter alia, "[a]dvertising signs not exceeding 20 feet in height and 200 square feet in area" are permitted in the Downers Grove B-3 zoning district. Downers Grove, Ill., Zoning Ordinance art. IX, § 5.3-1(c)

At issue is whether the advertising sign size limitation imposed by the Downers Grove zoning ordinance is an invalid preemption of the maximum sign size permitted under the Act.

Whiteco acknowledges that in zoned commercial and industrial areas municipalities are permitted under section 7 of the Act to adopt regulations with respect to the size of signs other than as set forth in section 6.01 of the Act if such regulations are "consistent with the intent of [the] Act and with customary use." (Ill.Rev.Stat.1987, ch. 121, par. 507.) "Customary use," Whiteco contends, refers to the customary use of advertising signs in the State of Illinois by the outdoor advertising industry in its exercise of the rights established by the Act and does not refer, as Downers Grove contends, to "the customary use of land based on its designation, restrictions on usage, and surrounding uses in a particular community as delineated and described in a local municipal zoning ordinance."

Whiteco relies on the language of section 1 of the Act and the legislative histories of the Act and of the Federal Highway Beautification Act of 1965 (23 U.S.C. § 131 et seq. (1970)) in support of its interpretation of the term "customary use." It concludes on the basis of those authorities that Downers Grove's restriction of the size of signs in the B-3 zoning district to 20 feet in height and 200 square feet in area is not consistent with "customary use" since regulatory standards consistent with such "customary use" are specified in section 1 as those "set forth in section 6 of [the] Act." (Ill.Rev.Stat.1987, ch. 121, par. 501.) Thus, Whiteco argues, Downers Grove's more severe sign size restriction is inconsistent with "customary use."

The Illinois Highway Advertising Control Act of 1971 was adopted by the Illinois legislature pursuant to the Federal Highway Beautification Act of 1965. (23 U.S.C. § 131 et seq. (1970).) In order for States to preserve Federal funding for State highways, the Highway Beautification Act required them to enact legislation regulating outdoor advertising signs. The Illinois Highway Advertising Control Act, in part, regulates the size, lighting and spacing of outdoor advertising signs. Ill.Rev.Stat.1987, ch. 121, pars. 506, 506.01, 506.02, 506.03.

Section 1 of the Act provides in full as follows:

"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.

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 7 of the Act provides, however, that:

"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." (Emphasis added.) Ill.Rev.Stat.1987, ch. 121, par. 507.

Several cases have addressed the seeming inconsistency of municipal zoning regulations permitting less generous square footage of advertising signs pursuant to the provisions of section 7 of the Act in light of the language of section 1 of the Act that "more severe restrictions" than section 6 regulatory standards are "inconsistent with customary use." (National Advertising Co. v. City of Rolling Meadows (7th Cir.1986), 789 F.2d 571, 575; Dingeman Advertising, Inc. v. Village of Mt. Zion (1987), 157 Ill.App.3d 461, 109 Ill.Dec. 671, 510 N.E.2d 539; National Advertising Co. v. Village of Downers Grove (1988), 166 Ill.App.3d 58, 116 Ill.Dec. 610, 519 N.E.2d 502.) Sections 1 and 7 of the Act have variously been described as having been born of either the compromise (Rolling Meadows, 789 F.2d at 575) or conflict (Dingeman, 157 Ill.App.3d 461, 109 Ill.Dec. 671, 510 N.E.2d 539; Downers Grove, 166 Ill.App.3d 58, 116 Ill.Dec. 610, 519 N.E.2d 502) between the State--concerned with preserving its Federal highway funds, the advertising industry--concerned with effective highway advertising, and local zoning entities--concerned with highway aesthetics and safety. (Rolling Meadows, 789 F.2d at 576; Dingeman, 157 Ill.App.3d at 464-65, 109 Ill.Dec. 671, 510 N.E.2d 539; Downers Grove, 166 Ill.App.3d at 62, 116 Ill.Dec. 610, 519 N.E.2d 502.) As stated in Dingeman,

"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, 157 Ill.App.3d at 464, 109 Ill.Dec. 671, 510 N.E.2d 539.

In National Advertising Co. v. City of Rolling Meadows, the court of appeals invalidated section 9.1 of Rolling Meadows' zoning ordinance limiting the size of signs to 200 square feet inasmuch as it was "more restrictive than [section 6.01 of the Act] and so * * * not consistent with 'customary use' within the meaning of [section 1 and 7]." (Rolling Meadows, 789 F.2d at 576.) The court there was of the opinion that Rolling Meadows, as a home rule municipality, may restrict the total height of a sign and its support structures since section 6 of the Act does not specify those matters, but that it could not restrict the size of the visible face of the sign to less than 1,200 square feet since section 6 of the Act does regulate square footage. The court observed that, "[w]hen the state expressly establishes a coordinated plan, § 6(i) of the state constitution requires home-rule municipalities to go along." (789 F.2d at 576; Ill. Const.1970, art. VII, § 6(i).) In other words, the court found the more restrictive Rolling Meadows sign size regulation was "preempted" by section I of the Act, which stated that the sign size which was "consistent with customary use in this State" was the regulatory standard set forth in section 6 of the Act, i.e., 1,200 square feet.

The preemption found in National Advertising Co. v. City of Rolling Meadows was rejected after careful analysis in Dingeman Advertising, Inc. v. Village of Mt. Zion, however, and Dingeman's lead was followed in this court's subsequent...