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SCADRON v. CITY OF DES PLAINES

March 20, 1990

ROBERT B. SCADRON, JEFFREY SCADRON, AND BARRY SCADRON d/b/a SCADRON ENTERPRISES, an Illinois General Partnership a/k/a SCADRON OUTDOOR ADVERTISING, Plaintiffs,
v.
CITY OF DES PLAINES, a municipal corporation, Defendant


Ilana Diamond Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 This lawsuit concerns the validity of a municipal billboard regulation scheme under both federal and state law. Plaintiff Scadron Enterprises ("Scadron") is an Illinois partnership engaged in the business of leasing real property for the purpose of leasing or donating billboard space to commercial and noncommercial advertisers. The defendant is the City of Des Plaines, Illinois ("the City"), which has an ordinance affecting the use and construction of billboards. Scadron's principal claims are that the City's regulation scheme is inconsistent with state law concerning highway advertising, that it violates Scadron's free speech rights, and that it has been discriminatorily applied so as to violate Scadron's equal protection rights. Pending is the City's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons stated below, the City's motion to dismiss is granted as to all claims other than the equal protection claim.

 II. STATUTORY BACKGROUND

 A. Illinois Highway Advertising Control Act

 The Illinois Highway Advertising Control Act of 1971, Ill. Rev. Stat. ch. 121 paras. 501 et seq. ("HACA") was enacted to implement the Highway Beautification Act of 1965, 23 U.S.C. § 131, which conditions federal highway grants on state prohibitions of most signs within 660 feet of major highways. See National Advertising Co. v. City of Rolling Meadows, 789 F.2d 571, 575 (7th Cir. 1986). The Highway Beautification Act requires states to prohibit most new off-premises signs, and begin to take down old ones, in areas adjacent to federally-funded highways. An exception is provided for areas zoned as industrial or commercial, which must be governed by rules determined by agreement between the states and the Secretary of Transportation. HACA embodies Illinois's agreement with the Secretary. See id.

 
Size. No sign may be erected which exceeds 1,200 square feet in area, 30 feet in height and 60 feet in length, including border and trim, but excluding ornamental base or apron, supports and other structural members. . . . *fn1"

 Section 6.02, Ill. Rev. Stat. ch. 121 § 506.02, sets certain requirements with respect to the lighting of signs, and section 6.03, Ill. Rev. Stat. ch. 121 § 506.03, sets requirements with respect to their spacing. *fn2"

 Section 1 of HACA, Ill. Rev. Stat. ch. 121 § 501, the findings and purposes clause, provides that the regulations in Section 6 are proper and adequate to carry out HACA's purposes, "more severe restrictions being inconsistent with customary use and ineffective to accomplish the purposes of this Act." *fn3"

 Section 7, Ill. Rev. Stat. ch. 121 § 507, addresses local regulation of advertising signs:

 
In zoned commercial and industrial areas, whenever a State, county or municipal zoning authority has adopted laws or ordinances, which include regulations with respect to the size, lighting and spacing of signs, which regulations are consistent with the intent of this Act and with customary use, then from and after the effective date of such regulations, and so long as they shall continue in effect, the provisions of Section 6 shall not apply to the erection of signs in such areas.

 B. City Ordinances

 Section 10.5.5 of the Des Plaines Zoning Ordinance restricts advertising designed to be viewed from a limited access highway:

 
10.5.5 LOCATION OF ADVERTISING DEVICES: No advertising device shall be erected, constructed, relocated or maintained:
 
10.5.5.1 If such advertising device is designed to have or has the advertising thereon maintained primarily to be viewed from a limited access highway. 10.5.5.2 If such advertising device, because of its location, size, nature or type, constitutes or tends to constitute a hazard to the safe and efficient operation of vehicles upon a limited access highway, or creates a condition which endangers the safety of persons or property therefrom.

 Also in issue is the Des Plaines Sign Code. Section 4-5-1 of the Sign Code, the purposes and findings clause, emphasizes aesthetics, safety, and the interests of local businesses. *fn4" Section 4-5-2 of the Sign Code defines "Sign" as:

 Section 4-5-3 of the Sign Code makes it unlawful to erect any sign without first obtaining a permit.

 The principal operative language of the Sign Code at issue in this case is section 4-5-14, which provides:

 
COMMERCIAL SIGN NO LONGER ADVERTISING BONA FIDE BUSINESS; REMOVAL: Any commercial sign which no longer advertises a bona fide business conducted on the premises where said sign is located, shall be taken down and removed by the owner, agent or person having the beneficial use of the building or structure or property upon which such sign may be found, or application shall be made for a permit to change the face of the sign to advertise a bona fide business conducted or a product sold on said premises, within ten (10) days after written notification from the Building Inspector. Upon failure to comply with such notice within the time specified in such notice, the City shall initiate such legal proceedings as may be required to compel the removal of said sign(s) and the recovery of any cost incurred in connection therewith, including legal fees. *fn5"

 Section 4-5-15 exempts certain signs from the provisions of the Sign Code, including real estate signs no larger than eight square feet which advertise the premises on which they are located; certain signs painted on the exterior surface of a building or structure; bulletin boards no larger than eight square feet for public, charitable or religious institutions which are located on the premises of such institutions; memorial signs or tablets; and traffic or other municipal signs. *fn6"

 III. FACTS

 For the purposes of this motion, the Court accepts as true the factual allegations in the complaint. On April 13, 1988, Scadron leased certain property within the City for the purpose of constructing a billboard. The property abuts the entrance ramp to I-294, a federally-supported interstate highway. The property is zoned for business and commercial uses. The proposed billboard has two sign faces, each of which would measure 20 feet by 60 feet. It would be within 660 feet of I-294 and would not exceed 30 feet in height exclusive of base and supports. Scadron alleges that the billboard is consistent with the standards contained in HACA and that Scadron has received a permit from the State of Illinois.

 Scadron applied to the City's Department of Municipal Government for a building permit to allow the construction of the billboard. That application was denied on December 19, 1988. Scadron appealed to the City Council, which denied the appeal and a request for a variation on October 2, 1989. Scadron alleges that the City has, on several occasions, granted permits to other applicants to construct billboards similar in height and location to the one proposed by Scadron.

 Scadron filed this lawsuit on October 6, 1989, alleging that the City's Sign Code violates the free speech, due process and equal protection provisions of the First, Fifth and Fourteenth Amendments of the U.S. Constitution and is preempted by HACA. *fn8" The City, in its motion to dismiss, argues that Scadron's challenges must fail as a matter of law.

 IV. CONSTITUTIONALITY OF THE ORDINANCES

 A. Supreme Court Decisions

 The starting point for any analysis of ordinances regulating the size and placement of advertising signs must be the Supreme Court's decisions in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981) (" San Diego "), and Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984) (" Taxpayers "). In San Diego, the Court struck down an ordinance which prohibited most outdoor advertising signs. The ordinance exempted two types of signs: (1) "on-site signs," defined as signs "designating the name of the owner or occupant of the premises upon which such signs are placed, or identifying such premises; or signs advertising goods manufactured or produced or services rendered on the premises upon which such signs are placed;" and (2) certain specific types of signs, described by the Court as including "government signs; signs located at public bus stops; signs manufactured, transported, or stored within the city, but not used for advertising purposes; commemorative historical plaques; religious symbols; signs within shopping malls; for sale and for lease signs; signs on public and commercial vehicles; signs depicting time, temperature, and news; approved temporary, off-premises, subdivision directional signs; and 'temporary political campaign signs.'" 453 U.S. at 494-95, 101 S. Ct. at 2886.

 The Court found that the ordinance was unconstitutional, but was unable to reach a majority as to the reasoning. The four-Justice plurality (White, Stewart, Marshall and Powell) believed that a complete ban on commercial signs would be permissible. Id. at 512, 101 S. Ct. at 2895. However, they believed that the ordinance was invalid because it discriminated among signs on the basis of their content: it drew an impermissible distinction between commercial and noncommercial on-site advertising (permitting the former but not the latter), Id. at 512-13, 101 S. Ct. at 2895, and it permitted certain types of noncommercial signs while prohibiting other noncommercial signs, Id. at 514-17, 101 S. Ct. at 2896-97. Two Justices (Brennan and Blackmun) disagreed with the plurality's finding that the ordinance drew content-based distinctions, but believed that the ordinance was invalid because the city had failed to adequately justify the restrictions on free speech. Id. at 528, 101 S. Ct. at 2903. Three Justices (Burger, Stevens and Rehnquist) agreed with the plurality that a total ban on off-site commercial billboards would be permissible, but disagreed with the plurality's conclusion that the ordinance drew impermissible content-based distinctions. Id. at 541, 101 S. Ct. at 2916-17 (Stevens); Id. at 555-69, 101 S. Ct. at 2917-24 (Burger); Id. at 569-70, 101 S. Ct. at 2924-25 (Rehnquist). Accordingly, they would have upheld the ordinance.

 From the various opinions in San Diego, certain majority views may be distilled. Seven Justices (White, Stewart, Marshall, Powell, Burger, Stevens and Rehnquist) believed that a complete ban on off-premises commercial advertising would be permissible. Five Justices (Brennan, Blackmun, Burger, Stevens and Rehnquist) believed that the limited exceptions to the ordinance's general prohibition of off-premises advertising were too insubstantial to constitute discrimination on the basis of content.

 In Taxpayers, supra, an organization which desired to place political campaign flyers on utility pole crosswires unsuccessfully challenged an ordinance which prohibited the posting of signs on public property. Because the ordinance was enforced without regard to the content of the signs, the Court applied the test for content-neutral regulation of speech. The Court found that the ordinance was justified by the city's aesthetic interest and was narrowly tailored to serve that interest. 466 U.S. at 805-10, 104 S. Ct. at 2129-32. Significantly, the Court noted that in San Diego it had "considered the city's interest in avoiding visual clutter, and seven Justices explicitly concluded that this interest was sufficient to justify a prohibition of billboards." 466 U.S. at 807, 104 S. Ct. at 2130. The Court expressly reaffirmed this position. Id.

 B. Constitutionality of Sign Code

 1. Interpretation of the ...


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