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05/10/94 T & S SIGNS v. VILLAGE WADSWORTH

May 10, 1994

T & S SIGNS, INC., PLAINTIFF-APPELLANT
v.
THE VILLAGE OF WADSWORTH, DEFENDANT-APPELLEE



Appeal from the Circuit Court of Lake County. No. 92-MR-619. Honorable Bernard E. Drew, Jr., Judge, Presiding.

McLAREN, Woodward, PECCARELLI

The opinion of the court was delivered by: Mclaren

Justice McLAREN delivered the opinion of the court:

The plaintiff, T & S Signs, Inc., filed an action for declaratory, injunctive, and mandamus relief, and damages on the theory of inverse condemnation (see 225 ILCS 440/9 (West 1992)), when the defendant, the Village of Wadsworth (Village), interfered with the plaintiff's efforts to erect an advertising sign for which the plaintiff obtained a permit issued by the State of Illinois (see 225 ILCS 440/8 (West 1992)). The trial court granted the defendant's motion to dismiss, and the plaintiff appealed. The issue on appeal is whether the Village, a non-home-rule municipality, may enact more stringent regulations in the area of outdoor advertising than those provided by the Illinois Highway Advertising Control Act of 1971 (Act) (225 ILCS 440/1 et seq. (West 1992)). For the following reasons, we affirm.

The plaintiff is an Illinois corporation engaged in the business of erecting and maintaining advertising signs. The plaintiff owns a parcel of land in the Village of Wadsworth which is located west of Route 41 and adjacent to Interstate 94. The property is zoned for business purposes.

On May 21, 1992, the State of Illinois Department of Transportation (DOT) issued an outdoor advertising permit which authorized the plaintiff to erect and maintain an off-premises, illuminated, outdoor advertising sign on the subject property. The sign was proposed to be 1,200 square feet; 60 feet high and 20 feet wide. It would be located 150 feet south of the centerline of Edwards Road and 1,000 feet west of the southeast corner of Edwards Road and Mill Creek Road, adjacent to Interstate 94.

The Village refused to issue the plaintiff a permit to erect the sign because the proposed sign violated a Village zoning ordinance. The ordinance precludes off-premises advertising, illumination of signs, and limits the size of a sign in this zoning district and location to 150 square feet and a maximum height of 40 feet. The Village thwarted the plaintiff's efforts to erect the sign by issuing notices and threatening arrest.

On December 21, 1992, the plaintiff filed a three-count complaint against the Village. The complaint alleged that DOT issued an outdoor advertising permit which approved the plaintiff's plans for the advertising sign on the subject property. Since the Village has less than 25,000 inhabitants and has not elected by referendum to become a home rule unit of local government, the plaintiff's complaint asserted that the permit -issued by DOT pursuant to the Act (225 ILCS 440/1 et seq. (West 1992)) provides full and complete authority governing the erection and maintenance of an advertising sign on the subject property. According to the plaintiff, the Village ordinance is preempted by the Act.

In count I, the plaintiff sought a judicial declaration authorizing the erection of the sign, or, alternatively, an injunction restraining the Village from interfering with the erection of the sign. Count II prayed that the court issue a writ of mandamus commanding the Village to give any and all approvals or permits necessary to erect the sign. Count III sought damages on the theory of inverse condemnation, to compensate the plaintiff for the Village's taking of the subject property.

The Village responded by filing a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 1992)), or, alternatively, pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 1992)). The motion alleged that the plaintiff's complaint failed to state a cause of action since Village zoning ordinances are independent of the Act and prohibit the plaintiff from erecting the proposed sign on the subject property.

Thereafter, the plaintiff moved for partial summary judgment (735 ILCS 5/2-1005(c) (West 1992)) on counts I and II of the complaint. The motion alleged that there was no genuine issue of material fact which would preclude the court from entering judgment in the plaintiff's favor on counts I and II, since the permit issued by DOT "provides full and complete authority for erection and maintenance" of the sign.

On May 6, 1993, the trial court granted the Village's motion to dismiss the plaintiff's complaint with prejudice. The court found there was no just reason to delay enforcement of the dismissal. (134 Ill. 2d R. 304(a).) The plaintiff appealed.

In the present case, the Village moved to dismiss the plaintiff's complaint pursuant to section 2-619 of the Code. As an alternate basis for dismissal, the Village moved to dismiss under section 2-615. The legal theories for proceeding on a motion to dismiss under sections 2-615 and 2-619 differ. A section 2-615 motion attacks the legal sufficiency of the complaint by asserting that it fails to state a cause of action upon which relief can be granted. Under section 2-619, a party admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter which avoids or defeats the claim. (See Bank of Northern Illinois v. Nugent (1991), 223 Ill. App. 3d 1, 7-8, 165 Ill. Dec. 514, 584 N.E.2d 948.) Since the Village's motion to dismiss alleged that the plaintiff's complaint failed to state a cause of action, we will assume that the court dismissed the complaint on this theory and under section 2-615 of the Code.

When the legal sufficiency of a complaint is challenged by a section 2-615 motion to dismiss, all well-pleaded facts alleged in the complaint are taken as true. On review of a section 2-615 dismissal, we must determine whether the allegations of the complaint, when interpreted in a light most favorable to the plaintiff, sufficiently set forth a cause of action on which relief may be granted. (DiBenedetto v. Flora Township (1992), 153 Ill. 2d 66, 79, 178 Ill. Dec. 777, 605 N.E.2d 571; Howard v. Druckemiller (1992), 238 Ill. App. 3d 937, 941, 183 Ill. Dec. 148, 611 N.E.2d 1.) The motion should be granted only if the plaintiff can prove no set of facts to support the cause of action asserted. (Gouge v. Central Illinois Public Service Co. (1991), 144 Ill. 2d 535, 542, 163 Ill. Dec. 842, 582 N.E.2d 108.) This process does not require the court to weigh findings of fact or determine ...


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