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11/25/87 Gannett Outdoor of Chicago v. Gregory W. Baise

November 25, 1987

GANNETT OUTDOOR OF CHICAGO, PLAINTIFF-APPELLANT

v.

GREGORY W. BAISE, SECRETARY, DEPARTMENT OF TRANSPORTATION, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

516 N.E.2d 915, 163 Ill. App. 3d 717, 114 Ill. Dec. 760 1987.IL.1752

Appeal from the Circuit Court of Cook County; the Hon. Harold Siegan, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McNAMARA delivered the opinion of the court. RIZZI and WHITE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Plaintiff, Gannett Outdoor of Chicago, appeals from the trial court's denial of its motion for a preliminary injunction which sought to prevent the Illinois Department of Transportation (defendant) from removing an outdoor advertising structure owned by plaintiff. On appeal, plaintiff contends that the court erred in denying its request for the preliminary injunction.

In March 1985, plaintiff purchased an outdoor billboard located on the east side of the Calumet expressway in Calumet City, Illinois, from Triangle Sign Company. The billboard had never been registered with defendant. Plaintiff also negotiated a ground lease with the owners of the land on which the billboard was located.

The billboard was erected by Triangle in 1959, at which time the property on which the sign was located was zoned industrial. Thereafter, Calumet City rezoned the property residential, causing the sign to become a legal nonconforming use. Plaintiff owns no other signs with interstate highway exposure in the area.

Upon acquiring the sign, representatives of plaintiff met with the chief of electrical inspections of Calumet City, who found that the billboard was in an unsafe condition due to vandalism. The inspector also found that the multiple beam support structure presented a hazard because it allowed easy access to children. Calumet City issued plaintiff a permit to install a single pole sign structure. Defendant stipulated that the city required plaintiff to remove the 12 steel beams and replace them with one pole as a condition precedent to the issuance of an electrical permit. At the time it performed the work, plaintiff did not seek or obtain a permit from defendant. Essentially, the work performed consisted of removing the 12 I-beams and replacing them with a single, five-foot diameter pole. The same upper portion of the structure, the portion displaying the advertising message, was then placed back on the new single support pole. In addition, some portions of the old signboard were replaced and some electrical work was required.

The cost of replacing the support system was $19,000. Evidence was offered that the subject sign has a current value in excess of $125,000. The annual income from a similar sign is between $25,000 and $30,000.

On August 18, 1986, defendant notified plaintiff that it had to remove the sign within 30 days because it had been erected on property which was zoned residential. A representative of plaintiff's contacted defendant and asserted that plaintiff had merely performed maintenance on the sign and had not erected a new sign. However, defendant's sign control section stated that the billboard was "erected" in violation of the law and therefore plaintiff need not apply for a permit. The parties failed to reach a settlement of this issue, and on May 19, 1987, plaintiff filed a complaint for declaratory and injunctive relief, after learning that defendant had obtained contractor's bids for removal of the sign. The trial court granted plaintiff's motion for a temporary restraining order until a hearing on its motion for a preliminary injunction could be heard.

At the hearing on plaintiff's motion for a preliminary injunction, Stephen Shinn, plaintiff's vice-president, testified. Shinn explained the nature of the industry trade practice called "showings," where plaintiff or a competitor would sell a group package of several signs to a single customer in an effort to reach targeted areas or a target group of consumers. Shinn also testified regarding the demand for signs along interstate highways and the effect on business of losing a customer to a competitor.

Shinn further testified that he was familiar with the Illinois registration requirement for signs and that he did not know the sign in question was unregistered when plaintiff purchased it in March 1985. Shinn stated that he knew replacement of an old sign with a new sign required a State permit but he did not think that the billboard was a new sign, rather, it was the same sign with a new support system. At no time did plaintiff receive a request from defendant to register the sign. The letter from defendant only requested that plaintiff remove the sign because it had been erected in a residential zone.

After Shinn testified, the trial court stated that it was ready to render a decision on the preliminary injunction before plaintiff was given an opportunity to argue or before defendant was allowed to present any evidence. The trial court denied plaintiff's motion for a preliminary injunction, making the following findings: (1) the subject sign was unregistered and plaintiff knew or should have known that it had to be registered; (2) that plaintiff's actions after it acquired the sign did not constitute "normal maintenance and repair" but instead constituted "erection" of a new sign; (3) that plaintiff knew or should have known that erection of a new sign requires a permit; (4) that a permit ...


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