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COVENANT MEDIA OF ILLINOIS, L.L.C. v. CITY OF DES PLAINES

June 8, 2005.

COVENANT MEDIA OF ILLINOIS, L.L.C, Plaintiff,
v.
CITY OF DES PLAINES, ILLINOIS, Defendant.



The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Covenant Media of Illinois, L.L.C. ("Covenant"), filed a fourteen-count complaint against defendant City of Des Plaines, Illinois ("City"), challenging the constitutionality of the Des Plaines sign ordinance ("Sign Ordinance"), both facially and as applied to Covenant. The court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1367. The City has moved to dismiss the complaint for lack of standing and failure to state a claim on which relief may be granted pursuant to Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P. For the reasons stated below, the motion is denied.

I. THE CITY'S MOTION TO STRIKE

  In its reply brief, the City moved to strike the exhibits attached by Covenant to its response. The court, however, may "examine documents that a defendant attached to a motion to dismiss . . . if they are referred to in plaintiff's complaint and are central to [its] claim." Albany Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d 969, 971 (7th Cir. 2002). Although neither party's Exhibit A was attached to the complaint, both documents were referred to therein and central to Covenant's claims. See complaint at ¶ 19. Accordingly, the court has relied on defendant's Exhibit A, which is the City's Zoning Ordinance, and plaintiff's Exhibit A, which is the November 19, 2004 letter from the City to Covenant. The court also has considered Covenant's Exhibit B, which is the December 23, 2004 letter from the City to Covenant, because it was relevant to the court's consideration of its subject matter jurisdiction. See, e.g., Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698, 701 (7th Cir. 2003). The court has not relied on Covenant's Exhibit C, which contains a number newspaper articles, because such materials did not relate to the court's subject matter jurisdiction and were not mentioned in the complaint.

  II. ALLEGATIONS OF THE COMPLAINT

  A. The Sign Ordinance

  At issue in this litigation is the City's Sign Ordinance, which is contained in Article 11 of the City's Zoning Ordinance. The Sign Ordinance is a comprehensive scheme that regulates the content, permitting, placement, number, size, height, design, operation, and maintenance of signs within the City.*fn1 With few exceptions, the Sign Ordinance prohibits all off-premises signs. See § 11.2(C). The Sign Ordinance also prohibits signs "which display obscene, indecent, or immoral matter." § 11.2(I). The Sign Ordinance makes it unlawful to erect a non-exempt sign without first obtaining a permit from City officials. See § 11.3-7. Signs exempt from the permitting requirements include government flags and corporate flags. See §§ 11.3-7(F), (G). The Sign Ordinance also requires a permit for each billboard. See §§ 11.3-1, 11.3-3(C).

  The Sign Ordinance provides that the Zoning Administrator shall take formal action on a fully complete sign permit application within 30 days. It further specifies that "[u]pon receipt of a fully complete sign permit application, the Zoning Administrator shall examine the application and all material attached thereto to determine its compliance with this Article, as well as any other applicable City Code, ordinance, or law." § 11.3-3(a). The Sign Ordinance also includes a process through which unsuccessful applicants may appeal the denial of their applications to post signs. According to its stated purpose, the Sign Ordinance exists to preserve the non-commercial character of residential neighborhoods, to provide reasonable yet appropriate conditions for identifying businesses and services, to reduce traffic hazards, and to protect the health, safety and general welfare of the City's residents. See § 11.1.

  B. The Parties

  Covenant engages in the business of posting and operating advertising signs and billboards used by businesses, churches, organizations, and individuals to disseminate both commercial and non-commercial messages. The City is a political subdivision of the State of Illinois located in Cook County.

  After expending resources while investigating various sign locations in the City, Covenant entered into agreements with third-parties to post and operate signs within the City. Covenant applied to the City for permission to post and operate one sign, specifically a billboard or off-premises sign, on November 16, 2004. Covenant's application package contained information and documentation beyond what was required in the Sign Ordinance or mentioned in the City's application materials. The proposed sign complied with the State of Illinois' laws and regulations regarding signs. A City employee informed Covenant that its application appeared complete; however, the City denied Covenant's application as submitted by a letter dated November 19, 2004. In its letter to Covenant, the City stated, in part: "In order for the permit to be further processed, the following items must be addressed and satisfactory correctional information must be resubmitted. . . ." (Covenant Ex. A). The letter listed additional items and information that Covenant needed to submit with its application. Such materials included an approved Illinois Department of Transportation permit and soil borings. Id. The letter further noted that the proposed site needed the approval of the City's Plan Commission and City Council by ordinance. Id. Covenant received another letter from the City on December 23, 2004 detailing additional items that needed to be addressed and resubmitted with its permit application. (Covenant Ex. B). This letter noted that all of the items listed in the November 19, 2004 letter were "mandatory pre-conditions to the issuance of a local permit." Id. Covenant has not been able to post its proposed sign. Covenant also has completed application packages for additional billboards and intends to submit these applications to the City.

  Covenant did not appeal the denial of its billboard application through the Sign Ordinance's appeals process and, instead, filed this lawsuit challenging the constitutionality of the Sign Ordinance in its entirety, both facially and as applied to Covenant. Specifically, Covenant alleges that the Sign Ordinance is unconstitutional because it grants city officials an impermissible level of discretion to approve or deny signs (count I); it violates equal protection (count II); it violates due process because of its vagueness (count III); it favors commercial over non-commercial speech (count IV); its permit requirements lack necessary procedural safeguards (count V); it impermissibly discriminates among non-commercial messages (count VI); it prohibits far more speech than can be justified by the interests asserted by the City (count VII); it does not directly advance any governmental interests in a material way (count VIII); its regulations are not narrowly tailored and do not leave open ample alternatives to advertising signs (count IX); it unduly burdens the ability of citizens and property owners to engage in protected First Amendment activity using fundamental means of communication (count X); it impermissibly favors some commercial topics at the expense of others (count XI); it is unconstitutional as applied to Covenant (count XII); and it is unconstitutional as applied to third parties under the overbreadth doctrine (count XIII). Count XIV contains Covenant's request for injunctive relief.

  III. MOTION TO DISMISS STANDARDS

  A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the court's subject matter jurisdiction. By contrast, a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted. General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). Dismissal is appropriate only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of its claim that would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kennedy v. Nat'l Juvenile Det. Ass'n, 187 F.3d 690, 695 (7th Cir. 1999). In ruling on the motion, the court accepts as true all well pleaded facts alleged in the complaint, and it draws all reasonable inferences from those facts in favor of the plaintiff. Jackson v. E.J. Brach Corp., 176 F.3d 971, 977 (7th Cir. 1999); Zemke v. City of Chicago, 100 F.3d 511, 513 (7th Cir. 1996).

  IV. ANALYSIS

  A. Justiciability: Standing ...


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