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Foster And Kleiser v. Vill. of Schaumburg





Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.


This is a declaratory judgment action. Plaintiff Foster and Kleiser seeks to have the sign ordinance of defendant village of Schaumburg, which prohibits billboards, declared unconstitutional. The trial court entered a preliminary injunction enjoining enforcement of the sign ordinance and subsequently declared sections of the sign ordinance unconstitutional. Defendant appeals.

Plaintiff, a division of Metromedia Corporation, is engaged in the outdoor advertising business. Defendant is a home-rule municipality located in Cook and Du Page counties.

Plaintiff currently owns a billboard on a leased parcel of land in the village of Schaumburg. Plaintiff entered into a lease for the property on March 1, 1957. At that time, the property was in Du Page County. Since June 28, 1963, however, the property has been part of the village of Schaumburg. On November 26, 1957, plaintiff, then doing business as General Outdoor Advertising Co., Inc., secured a building and use permit from Du Page County authorizing the construction of a sign on the leased property. The sign was built soon thereafter and has been continuously maintained since the date of construction.

On August 27, 1974, the defendant adopted Sign Ordinance No. 1099 (sign ordinance), the effect of which was to render plaintiff's sign unlawful. Section 26-4 of the sign ordinance provides:

"Billboards, flashing signs, projecting signs, permanent pennants and streamers, signs painted directly on wall, roof signs, and car signs are hereby expressly prohibited for erection, repair, alteration, or relocation within the village, except as permitted in other sections of this chapter."

Section 26-1 of the sign ordinance defines billboards as follows:

"Any sign other than a directional sign, which directs attention to a business, commodity, service or activity not conducted, sold or offered upon the premises where such sign is located."

Section 26-27 of the sign ordinance provides in part:

"Every sign or other advertising structure in existence on adoption of this chapter which violates or does not conform to the provisions hereof shall be removed or altered or replaced so as to conform with the provisions of this chapter within five years * * *."

Plaintiff was notified by defendant in 1975 that it would have to remove the sign subject to the amortization provisions of the ordinance. On November 2, 1979, defendant notified plaintiff by letter, signed by the village building inspector, that: "I am enclosing a copy of the sign ordinance that states `all non-conforming signs must be removed by September 29, 1979.'" Plaintiff failed to remove the sign and defendant commenced an ordinance violation proceeding. *fn1 Plaintiff appeared in court on January 7, 1980, to answer the charge of display of an illegal sign; the quasi-criminal action was continued pending the determination of plaintiff's petition for injunctive relief. On February 26, 1980, the instant action was instituted by plaintiff.

Plaintiff sought and was granted a preliminary injunction enjoining enforcement of the ordinance. Plaintiff sought a declaration by the court that defendant's sign ordinance was unconstitutional on its face and as applied to plaintiff's sign. The case was continued pending a decision by the United States Supreme Court in Metromedia, Inc. v. City of San Diego (1981), 453 U.S. 490, 69 L.Ed.2d 800, 101 S.Ct. 2882. After a hearing, the court found the sign ordinance to be unconstitutional on its face and permanently enjoined its enforcement. The trial court further directed that its written memorandum be attached to and made part of the order. Defendant appeals.


We first consider defendant's claim that the trial court had no jurisdiction to grant an injunction or declaratory judgment during the pendency of a case in the municipal department of the circuit court of Cook County.



In order to understand defendant's contention, it is necessary to briefly describe the circuit court of Cook County. *fn2 It is divided into two departments, county and municipal. The county department is divided into seven divisions, one of which is the law. Within the law division is the miscellaneous section where judges hear cases characterized as extraordinary remedies, which includes declaratory judgment and related injunction-type actions. The municipal department hears, amongst other things, cases involving quasi-criminal offenses. It is divided into six geographical districts.

By virtue of section 9, article VI, of the Judicial Article of the 1970 Constitution (Ill. Const. 1970, art. VI, sec. 9), the circuit court has original ...

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