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UNIVERSAL OUTDOOR, INC. v. ELK GROVE VILLAGE

July 14, 1997

UNIVERSAL OUTDOOR, INC., Plaintiff,
v.
ELK GROVE VILLAGE, Defendant.



The opinion of the court was delivered by: SHADUR

 On June 25, 1997 Elk Grove Village ("Elk Grove") filed a Fed. R. Civ. P. 16 motion to narrow the issues, in this action brought against it by Universal Outdoor, Inc. ("Universal"), by dismissing Universal's several claims as barred by principles of claim preclusion. Upon reviewing the parties' initial cross-submissions, this Court issued a brief June 30, 1997 memorandum opinion and order (the "Opinion") sua sponte, directing the litigants' attention to "an obvious question as to the timeliness of this action to begin with." *fn1" Now the parties have filed their respective cross-responses addressing both questions: claim preclusion and the statute of limitations. Hence Elk Grove's motion is ripe for decision.

 Statute of Limitations

 Because the earlier action between the parties on which Elk Grove wishes to hang its claim-preclusion hat was a state court lawsuit, the applicable claim preclusion principles are a function of Illinois law under 28 U.S.C. ยง 1738 ( Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 134 L. Ed. 2d 6, 116 S. Ct. 873, 877-78 (1996) and cases cited there). In addition, that area of law often tends to pose issues of considerable complexity. For both of those reasons, this opinion will first address the statute of limitations question.

 Universal does not dispute--as it cannot--that if Elk Grove's general sign ordinance (the "Sign Code") is unconstitutional today, it was equally unconstitutional back in 1985 when the Sign Code first became applicable to the billboard involved in this lawsuit in consequence of Elk Grove's annexation of the real estate on which that billboard was situated. Nor does Universal dispute--again as it cannot--that if the 1985 ordinance that granted Universal only a 12-year variance from the Sign Code (the "Ordinance") is unconstitutional today by reason of the fact that it was not a grant of a permanent variance (or the fact that it did not reflect an otherwise unqualified recognition of Universal's right to maintain the billboard in perpetuity), it was equally unconstitutional back in 1985 when it was first granted.

 Those things being true, if the Sign Code and the Ordinance do indeed infringe Universal's constitutional rights--as it now contends--Universal had a ripe claim of infringement of those rights back in 1985. *fn2" And that being the case, the Opinion indicated that the current lawsuit appeared to be subject to the bar of limitations as taught by the concept announced in Delaware State College v. Ricks, 449 U.S. 250, 258, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980).

 It will be recalled that Ricks established the principle that the applicable limitations time clock began to tick in that case when plaintiff Ricks was told that he was denied professorial tenure and he "was offered a 1-year 'terminal' contract, with explicit notice that his employment would end upon its expiration" (id.)--and not at the later date when his employment actually terminated. As the Court held (id., citations and footnotes omitted, emphasis in original):

 
In sum, the only alleged discrimination occurred--and the filing limitations period therefore commenced--at the time the tenure decision was made and communicated to Ricks. That is so even though one of the effects of the denial of tenure--the eventual loss of a teaching position--did not occur until later. The Court of Appeals for the Ninth Circuit correctly held, in a similar tenure case, that "the proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful." It is simply insufficient for Ricks to allege that his termination "gives present effect to the past illegal act and therefore perpetuates the consequences of forbidden discrimination."

 And a Shepard's printout of cases that follow the teaching in Ricks discloses a host of decisions that consistently apply the same proposition, focusing on the date when a party's rights have become established so that the party "knows or should know that his or her constitutional rights have been violated" ( Wilson v. Giesen, 956 F.2d 738, 740 (7th Cir. 1992)) because the adverse governmental decision has already been made ( Ricks, 449 U.S. at 259, 261).

 Indeed, even without reference to Ricks, the identical principle has been announced and applied in a case presenting some startling parallels to this one, De Anza Properties X, Ltd. v. County of Santa Cruz, 936 F.2d 1084 (9th Cir. 1991). Here is how De Anza, id. at 1086 rejected a challenge to a county ordinance by a party contending that it had not become injured--and hence that the statute of limitations did not begin to run--until the effect of the ordinance kicked in as the result of the sale of a mobile home:

 
The flaw in this theory is that the provision of the ordinance which they challenge has remained exactly the same since 1982. The conduct of the county has thus remained exactly the same at all times material to this case, and the effect of the ordinance upon the plaintiffs has not altered. Appellants were experiencing substantially the same injury in 1982 that they experienced in 1987. They were on notice that their property interests would be affected by the ordinance at the time it was enacted.

 What does Universal offer up in response to that notion? Its only proffered basis for escaping from the concept that its claims have not lain dormant since 1985, and for urging instead that the claims ripened only at the much later date when "the consequences became most painful," is this (Universal R. Mem. 2-3):

 
Sign ordinances and special use ordinances, such as those at issue in this case, are frequently extended or amended. Starting at the day of the adoption of the ordinances, Universal had the opportunity to meet with Elk Grove officials and negotiate changes to the ordinances, thereby administratively extending the time for the existence of its sign. Therefore, any action brought prior to the efforts by Elk Grove to enforce its ordinances would not have been ripe for adjudication.

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