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City of Champaign v. Kroger Co.





APPEAL from the Circuit Court of Champaign County; the Hon. CREED D. TUCKER, Judge, presiding.


Plaintiff, City of Champaign (City), filed a six-count complaint against the Kroger Company, Shapland Construction Company, and Superior Neon Sign Company seeking damages and an injunction. Counts I and II were based on the defendants' putative violation of Champaign City Ordinance No. 1291 (the Interim Sign Ordinance), which limited the size of store signs. In count I, the City sought $75,000 in punitive damages and attorney's fees. Count II, based upon the same allegations, sought an injunction compelling the defendants to remove the signs. The City based counts III and IV on a different ordinance; these two counts alleged that Ordinance No. 1292 had adopted the Building Officials and Code Administrators (BOCA) basic building code and that section 113.0 of the BOCA Code required the defendants to obtain a permit before erecting the three signs. The City again sought $75,000 in punitive damages, fees, and an injunction. Counts V and VI were based on section 1402.0 of the BOCA Code but otherwise were identical to counts III and IV.

The three defendants filed a joint motion for involuntary dismissal of the complaint. On the City's motion, counts I, III, and V — the counts requesting damages — were dismissed. The court denied the defendants' motion to dismiss counts II, IV, and VI.

The City and defendants Kroger and Shapland filed a stipulation of facts before trial. The parties agreed that the Kroger store was located in a B-3 zoning district permitting intermediate commercial uses; that the defendants disputed the validity of the Interim Sign Ordinance; that the Interim Sign Ordinance, if applicable, would limit the wall signs to 150 square feet each and the free-standing sign to a height of 20 feet and an area of 50 square feet on each face; that the Comprehensive Sign Ordinance, enacted April 15, 1975, would impose the same limits on the wall signs and the same or more stringent limits on the free-standing sign; that each of the wall signs measures approximately 6 feet by 47 feet, for a total area of 279.6 square feet; and that the free-standing sign is 32 feet high and approximately 80 square feet on each side. The parties also stipulated the facts leading up to the installation of the signs: Shapland built the store; Kroger bought the signs directly from Kolux Company as part of the standard equipment for so-called super stores like the one built here; Kroger had Superior install the signs. The City had denied, presumably under the Interim Sign Ordinance, Superior's request for permits to erect the signs. Kroger had delayed installing the sign because Richard Warren, Superintendent of the Environmental Control Division of the Champaign Environmental Department, had told Kroger that the City was considering a new sign ordinance that would possibly contain restrictions different from those in the Interim Sign Ordinance. When the ordinance had not been passed shortly before the scheduled opening of the store, Fred Kallmayer of Shapland asked Warren about progress on the sign law. Kallmayer did not request a permit, and Warren told him that the signs exceeded the size limits set by the Interim Sign Ordinance. Superior, who had been dismissed from the suit, then erected the signs. Before construction began, the City had granted a building permit based on architectural plans showing, among other things, an electric sign. After the signs had been installed, the City granted first a temporary occupancy permit January 3, 1975, and then a permanent occupancy permit five days later. This stipulation also provided that the City had not published the Interim Sign Ordinance after its passage. Except for the City's argument that the defendants had failed to obtain the permits required by the BOCA Code, the parties agreed that the defendants had complied with all the other BOCA requirements.

The case proceeded to a bench trial. Superior was dismissed as a party on the City's motion. The City's only witness was Betty McKown, one of its planning directors; her duties consisted of administering the City's zoning ordinances. Before becoming a planning director, McKown had done planning work for the Champaign County Planning Commission. McKown described the zoning districts and uses of the property adjacent to the Kroger store. Kroger's store is part of the Round Barn Shopping Center, which lies at the northwest corner of Springfield and Mattis streets; Kroger is 1,300 feet west of Mattis, farthest away from that street of any of the stores. The store occupies the southern edge of a large B-3 commercial area, bordered by apartment buildings to the northwest, west, and south; also directly west of Kroger is an industrial zone. Single- and multiple-family structures are east of the store. The Round Barn elderly project, containing 154 units, and the 96-unit I.H. French apartment complex are directly south of the store; both complexes stand two- to three-stories high, and residents of both are able to see the signs. The Round Barn and French apartments were built in 1976 and 1977. Besides grocery stores, gas stations, bowling alleys, restaurants, and hospitals may also be built in a B-3 district. The Kroger signs were not the only visual blight in the neighborhood; McKown had received several complaints regarding junk littering a vacant lot between the Round Barn units and Kroger. Under the current Comprehensive Sign Ordinance, each of three stores with fronts measuring 60 feet by 25 feet would be allowed signs of 150 square feet. Each of Kroger's wall signs was 280 square feet, less than the total signs permitted for the hypothetical three buildings. The Interim and Comprehensive Sign Ordinances were intended primarily to limit the sizes of signs on buildings in the B-3, intermediate commercial, districts. Based on her experiences in land-use planning, McKown thought that residents generally oppose the commercial development of their neighborhoods.

The defense presented four witnesses. The first, Rudolph Mortimer, was a professor in the Department of Public Health and Safety Education at the University of Illinois and specialized in automobile and pedestrian safety. Mortimer had analyzed the effect of the Kroger signs on the safety of drivers and pedestrians in the area. He had investigated the scene and concluded that the signs did not obstruct anyone's view or otherwise pose a hazard; at night they were beneficial in providing added light. Mortimer thought that the signs did not produce hazardous glare at night; street lights around the store created more glare. Decreasing the size of the signs would not affect traffic safety during the daytime but could possibly make the area less safe at night, depending upon the intensity of the light in the smaller signs. Mortimer conceded, however, that lowering the free-standing sign could increase the illumination in the store's parking lot. Because the amount of glare produced by a source of light depends upon both the size and the intensity of the source, a smaller sign with the same average intensity as the larger one would not cause more glare.

Robert Johnson, a local real estate broker and appraiser, had examined the surrounding property to determine the effect of the signs upon neighboring property values. Johnson thought that the signs were compatible with the mixture of zoning uses in the area and did not appreciably lower the value of nearby real estate. Johnson believed that the signs did not affect the net income generated by the Round Barn and French apartments. Furthermore, decreasing the size of the signs would not increase the value of the property.

Johnson admitted that he had neither appraised the two apartment complexes nor asked any of their residents whether the presence of the signs made the buildings less desirable as homes. Johnson explained that he could determine the effect of something on property values without appraising the property affected and felt that if the signs were objectionable persons would not live in the area. The City's counsel pointed out that the Round Barn residents receive Federal subsidies to help pay the rent and thus may have a limited choice in deciding where to live. Johnson agreed that persons generally prefer to live in districts less commercial than this one, yet thought that many persons find living in a commercial neighborhood convenient.

Harold Longworth, affiliated with the Superior Sign Company, testified that his company's predecessor, Superior Neon, had erected the signs at issue; they presented no structural hazard. Because Kroger had placed its store so far from Mattis Avenue, large signs were necessary to inform drivers of the location. Longworth estimated that the signs cost Kroger thousands of dollars. Taking down the signs in a manner that would permit their use elsewhere would cost between $1,000 and $1,500; taking them down without worrying about their future use would cost about half that amount. These costs would not have been much lower in early 1974 than at the time of trial. Longworth estimated that constructing and installing custom-made signs to comply with the Interim Sign Ordinance would cost approximately $25,000.

Longworth testified that it was not Superior's practice to erect structures without obtaining the necessary building permits and that the company had not received a permit for these signs.

Ove Uggerby, an architect in the local firm that designed the store, had studied aesthetics as part of his professional training and education. He testified that the free-standing sign should be twice as big to be in proportion with the store; the two wall signs were the proper size. The 150-square-foot maximum in the Interim Sign Ordinance would result in disproportionately small and aesthetically displeasing wall signs in cases of large buildings; height restrictions would have the same effect. Uggerby agreed that other architects might think that the signs should be smaller; he based his aesthetic opinion on his architectural training and experience. Uggerby said that in drawing up architectural plans, local ordinances and building codes are followed. Uggerby agreed, however, that when his aesthetic opinion conflicted with a building restriction, the client would be told of the restriction.

The trial judge's written order enjoined Kroger from using the signs, finding that the signs exceeded the limits set by the Interim Sign Ordinance, that Kroger had installed the signs without first obtaining the building permit required by Ordinance No. 1292 and a sign permit, that the failure to publish the Interim Sign Ordinance did not render it void, and that the Interim Sign Ordinance was not unconstitutionally vague or unreasonable but was reasonably necessary to protect the public health, safety, and welfare.

The trial court dismissed Shapland as a party and denied Kroger's post-trial motion. On appeal Kroger, the only remaining defendant, raises numerous issues going to the validity of the Interim Sign Ordinance and the City's ability to obtain an injunction.

• 1, 2 Zoning ordinances are presumed to be valid; the party challenging the presumption has the burden of establishing by clear and convincing evidence that the ordinance is "arbitrary, capricious or unrelated to the public health, safety and morals." (La Salle National Bank v. County of Cook (1957), 12 Ill.2d 40, 46, 145 N.E.2d 65, 68.) La Salle (1957) listed the following six considerations as bearing on the validity of a zoning ordinance: (1) The uses and zoning of surrounding property; (2) the effect of the challenged ordinance on the value of the property in question; (3) the degree to which decrease in value caused by the ordinance promotes the public health, safety, and welfare; (4) the balance between the public gain and the private loss (in effect a comparison of the second and third elements); (5) the suitability of the property to its zoned use; and (6) the length of time the property has been vacant compared to the pace of development in the area. These factors are conceptually distinct from the reasonable basis suggested by the municipality for the ordinance's validity; the court balances these six against what the public welfare requires, expressed by the zoning ordinances. "Balance" is a favorite but possibly misleading metaphor describing the analysis a court conducts when forced to choose between equally valid and competing interests; because the challenger of a zoning ordinance must overcome its validity by clear and convincing evidence, he must do more than just slightly tip the scales his way.

Applying the six criteria listed in La Salle (1957) to the facts in this case shows that Kroger's argument against the ordinance is inconclusive rather than persuasive.

(1) Surrounding property: The witnesses and exhibits disclosed that the property around Kroger's store was zoned for a variety of uses; the area contained a mixture of commercial and residential buildings, including the Round Barn and French apartment buildings. The defendant does not challenge the validity of its zoning classification, B-3, but rather the value in limiting the size of signs in a B-3 district.

(2) Property value: The defendant does not contend that the sign restrictions will lessen the value of its property; no evidence was introduced to show that smaller signs would decrease the number of customers. (Cf. Sun Oil Co. v. City of Madison Heights (1972), 41 Mich. App. 47, 199 N.W.2d 525, where the owner of a gas station located off an interstate highway argued that limits on the heights of his signs were decreasing business by 75 percent; the court upheld the validity of the ordinance.) The defendant did introduce evidence, however, showing the price of replacing the signs; Longworth testified that demolishing the existing signs and buying and installing new ones would cost between $25,000 and $26,000. Yet the defendant knew the contents of the Interim Sign Ordinance before it installed non-complying ...

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