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V. of Skokie v. Walton On Dempster

OPINION FILED NOVEMBER 7, 1983.

THE VILLAGE OF SKOKIE, PLAINTIFF-APPELLANT,

v.

WALTON ON DEMPSTER, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Joseph R. Schwaba, Judge, presiding.

JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

The village of Skokie (plaintiff) brought this action against Walton on Dempster, Inc. (defendant), seeking injunctive relief for removal of a sign which allegedly does not conform to the sign ordinance promulgated by plaintiff. Defendant counterclaimed for declaratory judgment. The trial court held the ordinance was unconstitutional as applied to defendant. Plaintiff appeals.

Plaintiff's sign regulations, which were promulgated in 1973, limit the height of a pole sign such as plaintiff's to 24 feet. (Village Code of Skokie, Illinois (1980), art. 31.15.) In addition the ordinance limits the gross surface area to 200 square feet per face. (Village Code of Skokie, Illinois (1980), art. 31.161-5.) Finally, the regulations provide a schedule by which nonconforming signs shall be amortized, and eventually removed under a grace period of two to seven years varying with the original cost of the sign. Village Code of Skokie, Illinois (1980), art. 31.373-7.

Defendant operates an automobile dealership in Skokie. The subject sign was erected on steel poles in 1960. The sign is 46 feet 10 inches in height and 18 feet in width. The ordinance permits a height no more than 24 feet. The total gross surface area of the sign is 426 square feet. The ordinance permits an area not more than 200 square feet. Although the original cost of the sign was never established, the current cost of replacement with an identical sign would be $35,000. There is also evidence that the sign could be modified to substantial compliance with the ordinance for approximately $3,000. The cost of the sign has been completely amortized for tax purposes. Defendant was granted the maximum time of seven years to replace the sign as provided by the ordinance. As of the date of trial, defendant's sign was the only nonconforming sign in plaintiff village.

John Sagat, defendant's manager, testified the sign was an integral element of the company's advertising. The sign is directly in front of defendant's building. The sign has become in effect the corporate trade mark. Any alteration of the sign "could have adverse effect on our business." In addition the witness received an estimate of $29,500 for construction of a replacement sign in conformance with the ordinance. That cost would represent a hardship to defendant. On three or four occasions defendant requested that the board of plaintiff village grant relief from the ordinance. However, each request was denied by plaintiff.

Rolf Campbell, a city planning and zoning consultant, testified the sign is "fully compatible" with the surrounding area. In his opinion, the sign was not "in any way adverse or detrimental to the general public health, safety, welfare, aesthetics or from any safety standpoint."

Real estate appraiser William A. McCann testified in agreement with Mr. Campbell. In the opinion of the witness the sign in question is not a detriment to surrounding property values or to the health, welfare, safety or aesthetic sense of the community. In addition, the witness testified that defendant's "is a unique location. This sign has to overcome visual obstructions that [do] not pertain to other locations." Therefore, the witness concluded that the existence of the sign "in no way impairs the use of other property within the vicinity, nor does it impair the value or quiet use and enjoyment."

On rebuttal, plaintiff's director of planning, Robert Molumby, testified the removal of the sign would not have any harmful effect on the surrounding community. The witness stated the consideration of aesthetics is an important consideration in the determination of the public welfare of a community. The witness believed permitting defendant to retain its sign intact would result in a detriment to the general enforcement of the ordinance and would grant defendant an unfair competitive advantage against other car dealerships in the village, which have complied with the ordinance.

Defendant directs our attention to the Skokie zoning ordinance which provides in pertinent parts (see Village Code of Skokie, Illinois (1980), arts. 9.2.6, 9.3.6, 9.4.6, 9.5.5, 9.6.6, 9.7.8):

"The erection, construction, alteration and location of signs, other advertising structures, marquees and awnings shall be in conformity with the provisions of an ordinance known as the Sign Regulation Ordinance heretofore adopted by the Village of Skokie and as amended from time to time."

• 1 Defendant argues that this provision in effect incorporated the sign regulations into the zoning ordinance. Thus, the standards used to grant a zoning variance should be applied to the case at bar. (See Village Code of Skokie, Illinois (1980), art. 12.2.12; La Salle National Bank v. County of Cook (1957), 12 Ill.2d 40, 145 N.E.2d 65.) In our opinion such a standard of review is neither required nor appropriate in the case at bar.

Although sign regulations and zoning restrictions may affect some similar interests and involve "many of the same questions," (see City of Champaign v. Kroger Co. (1980), 88 Ill. App.3d 498, 504, 410 N.E.2d 661, appeal denied (1981), 82 Ill.2d 583), these restrictions are distinct in their scope and application. A zoning change generally affects the basic ability of a business to operate at a specified location. A sign regulation, on the other hand, merely restricts a method of advertising. In addition, zoning regulations, by their very nature, vary in their operation according to location. The instant sign regulation is intended to apply uniformly to all citizens and all parts of plaintiff village. It may well be stated that defendant did not regard the zoning ordinance as applicable here. Defendant never sought relief from the zoning board of appeals. Instead, defendant directly attacked the constitutionality of the ordinance in the circuit court.

In Metromedia, Inc. v. City of Des Plaines (1975), 26 Ill. App.3d 942, 326 N.E.2d 59, we dealt with the validity of a sign ordinance. We emphasized the difference between a zoning ordinance and a sign regulation:

"As in the above case, the present issue concerns the constitutionality of a comprehensive provision enacted under the police power of the municipality. It is unlike a zoning law, the peculiar nature of which often warrants a determination of validity as applied to a particular piece of property. The provision in the present case is general in its terms, proscribing all off-premises advertising throughout the city's territorial limits. ...


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