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Dolson Outdoor Advtg. v. City of Macomb

OPINION FILED FEBRUARY 25, 1977.

DOLSON OUTDOOR ADVERTISING CO., PLAINTIFF-APPELLEE,

v.

THE CITY OF MACOMB, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of McDonough County; the Hon. SCOTT I. KLUKOS, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Plaintiff, Dolson Outdoor Advertising Co., brought this action in the circuit court of McDonough County against the defendant, City of Macomb, seeking a declaratory judgment that a city ordinance was invalid. The trial court held the ordinance was invalid and the city has appealed.

The City of Macomb through its zoning authority enacted Ordinance 898 of the Municipal Code. Ordinance 898 is a comprehensive zoning ordinance which divides Macomb into districts and regulates the uses allowed in those districts. As part of this regulation, Ordinance 898 draws a distinction between off-premise and on-premise advertising. The two classes are afforded different standards with the result being that off-premise advertising is excluded from industrial and business districts of the city, while on-premise advertising is allowed in those districts.

In December of 1973, the plaintiff, Dolson Outdoor Advertising Co., entered into a lease with William Hagerty of Macomb. The lease provided for the leasing of space for the purpose of construction of an off-premise advertising sign in a district described in the zoning ordinance as I-1 Light Industrial District. Dolson applied for and was granted a permit from the Illinois Department of Transportation for the erection of the off-premise outdoor advertising sign to be located on the real estate pursuant to the provisions of the Illinois Highway Advertising Control Act of 1971 (Ill. Rev. Stat. 1973, ch. 121, par. 501 et seq.). Next, on July 9, 1975, Dolson submitted to the Office of Zoning and Building of the City of Macomb an application for a building permit for such sign to be located at the site of the real estate. On the same date the application was denied by the Building Inspector for the reason "off-premise advertising structure not allowed in I-1 Industrial Zone."

Prior to trial the parties entered into a written stipulation as follows:

"(a) The effect of the Zoning Ordinance of the City of Macomb is to prohibit all off-premise outdoor advertising signs in business and industrial zoned districts within the City. An off-premise outdoor advertising sign is a sign which advertises products or services not sold or offered on the land upon which the sign is located;

(b) The City of Macomb has a population of 22,304 people;

(c) Dolson's business is that of standardized general outdoor advertising. The company leases land upon which outdoor advertising devices are placed. The signs principally offered by the company are off-premise signs. The business includes selling or donating space on billboards for commercial, political or social messages;

(d) That all outdoor advertising signs owned by Dolson in the City of Macomb are located in areas zoned for business or industrial purposes under the Zoning Ordinance of the City, and are within the application of the Highway Advertising Control Act;

(e) The gross annual income received by Dolson from outdoor advertising signs located in the City is in excess of $12,000.00."

In its complaint for declaratory relief, the plaintiff sought to have the City of Macomb ordinance declared invalid insofar as it prohibited off-premise advertising in business and industrially zoned districts. The trial court determined the ordinance was invalid insofar as it prohibited off-premise advertising in business and industrially zoned districts. The trial court determined the ordinance was invalid because it was contrary to the Illinois Highway Advertising Control Act of 1971 (Ill. Rev. Stat. 1973, ch. 121, par. 501 et seq.). We affirm.

• 1 Each of the parties has advanced numerous constitutional arguments in support of and against the ordinance. Such arguments were unnecessary to the trial court's decision and consequently no discussion of such constitutional issues is required in this opinion.

• 2 As an initial assignment of error, the City argues that the trial court erred in determining that an actual controversy existed between the parties, a prerequisite for seeking and awarding declaratory relief (Ill. Rev. Stat. 1973, ch. 110, par. 57.1). The City's principal objection in this regard is its claim that the lease between Dolson and Hagerty contained a contingency clause dependent upon the securing of permits by Dolson. We agree with the trial court's finding that an actual controversy existed since in our opinion the interest disclosed by the lease was sufficient to enable the plaintiff to apply for and secure a permit. (See People ex rel. Trust Co. v. Village of Skokie, 408 Ill. 397, 97 N.E.2d 310.) It is undisputed that Dolson made payments pursuant to the lease and also the permit was refused not because of any lack of interest in the premises by Dolson, but solely for the reason that the zoning ordinance prohibited such use in the area described in the application.

To sustain the validity of the ordinance, the City next argues its ordinance is authorized by and in accord with the Highway Advertising Control Act (Ill. Rev. Stat. 1973, ch. 121, par. 501 et seq.) and the trial ...


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