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COVENANT MEDIA OF ILL. v. CITY OF CALUMET CITY

August 19, 2005.

COVENANT MEDIA OF ILLINOIS, Plaintiff,
v.
CITY OF CALUMET CITY, ILLINOIS, Defendant.



The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Covenant Media of Illinois, L.L.C. (hereinafter, "Covenant") filed a fourteen-count complaint against Defendant City of Calumet City, Illinois (hereinafter, the "City") challenging the constitutionality of its "Sign Ordinance." Covenant filed a Motion for Preliminary Injunction, which the Court defers ruling on until after a hearing on the motion. The City subsequently filed a Motion to Dismiss pursuant to FED. R. CIV. P. 12 (b) (1) and 12 (b) (6), which is DENIED for the following reasons.

I. BACKGROUND

  The following relevant facts are taken in the light most favorable to Covenant, with any conflicting pleadings resolved in its favor. Covenant is a company in the business of erecting and operating advertising signs that are used by businesses, churches, organizations, and individuals to communicate commercial and noncommercial messages. The City is a political subdivision of the State of Illinois and located in Cook County. This dispute arises from Covenant's application to post signs in the City.

  The City has a comprehensive Zoning Ordinance that covers signs, among other things. A "sign" is defined as:
A name, identification, description, illustration or device which is affixed to, appointed or represented upon a building, structure, or land and which directs attention to a product, place, activity, person, institution or business. . . . However, a sign shall not include any display of any court, public or official notice, nor shall it include the flag, emblem, insignia of a nation, political unit, school, religious or charitable institution or organization. . . .
§ 3.2. An "advertising sign" is further defined as "a structure including a billboard on which is portrayed information which directs attention to a business, commodity, service or entertainment, or other activity not necessarily related to use permitted on the premises upon which such sign is located." Id. Section 11.1 of the Zoning Ordinance, entitled "Permitted signs, manufacturing districts," allows the following signs:
All signs permitted in the business districts shall be permitted in the industrial districts.
One (1) billboard, not to exceed one thousand two hundred (1,200) square feet in area, thirty (30) feet in height and sixty (60) feet in length, including border and trim, per buildable lot in a commercial or industrial district adjacent to an interstate tollway or expressway, but not within five hundred (500) feet of any billboard. . . . The Zoning Ordinance, however, does not explain what signs are permitted in business or industrial districts. To erect a sign or other structure in the City, a permit must be applied for in writing and issued by the building commissioner. See § 12.2. It also provides an appeal process. See § 12.5.
  Covenant expended time and money identifying property owners and entered into lease agreements or received authorization to seek permission to post signs at various locations in the City. The desired sign locations were located in commercial or industrial areas adjacent to major thoroughfares or highways. Covenant prepared and submitted one completed permit application on November 17, 2004. A City official reviewed Covenant's submission and hand wrote a denial on the face of the application. On November 18, 2004, Covenant submitted thirteen additional permit applications. A City official called Covenant on November 18, 2004 to inform it that the City was denying the applications because the City does not permit off-premises signs. The City also wrote Covenant a letter dated November 19, 2004 denying its applications pursuant to Section 11.1 of the Zoning Ordinance, and enclosed a copy of the same.

  Each of the application packets Covenant submitted included the appropriate information and documentation, including engineering drawings from an Illinois-certified engineer. Covenant did not appeal the denial of the applications to the City, and instead filed the instant complaint.

  II. MOTION TO STRIKE

  Covenant's complaint states that "[t]he City has adopted a comprehensive set of regulations that restricts or prohibits all signs in the City (`Sign Ordinance')." Despite the use of the defined term "Sign Ordinance," the Complaint only cites provisions of the City's Zoning Ordinance as the source of its injuries. Specifically, Covenant cites to Sections 3.2 (definitions), 11.1 (permitted signs in manufacturing districts), and 12.2 (zoning permit). The Complaint does not reference any other statute or ordinance. It also does not attach the permit applications, Zoning Ordinance, or any other document as exhibits.

  In its briefing, Covenant also refers collectively to the City's sign regulations as the "Sign Ordinance." Covenant does not define which City codes or regulations are included in its reference. However, Plaintiff attached Section 11.1 of the Zoning Ordinance and a copy of a document entitled "Chapter 70" as an exhibit to the Motion for Preliminary Injunction. Covenant does not explain Chapter 70's relevant context, who it applies to, or if it is part of, or related to, the Zoning Ordinance. Covenant did not attach Chapter 70 to the Complaint or the Motion to Dismiss. Yet, Covenant principally relies on Chapter 70 to support its constitutional arguments. The City responds that it does not have a "stand-alone sign ordinance." Instead it has a comprehensive zoning ordinance which "regulates signs." The City only discussed the Zoning Ordinance in its briefing on the Motion to Dismiss and Motion for Preliminary Injunction arguing that it is the sole relevant statute because it was the only basis for the City's denial of Covenant's sign applications. It attached only the Zoning Ordinance as an exhibit to the Motion to Dismiss. In its reply brief, the City suggests that the Court should only consider the Zoning Ordinance in evaluating the Motion to Dismiss and requests that the Court disregard Covenant's Chapter 70 arguments.

  The Court construes these arguments as a motion to strike Chapter 70 with respect to the Motion to Dismiss. Generally, all documents to be considered in a motion to dismiss must be contained within the pleadings. Despite this general rule, district courts can consider documents in evaluating a motion to dismiss if they are "attached to a motion to dismiss [and] are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to his claim." Wright v. Associated Ins. Co., 29 F.3d 1244, 1248 (7th Cir. 1994). The Court has relied on the City's Zoning Ordinance in evaluating the Motion to Dismiss because it was referenced in the Complaint, is clearly central to Covenant's claims, and was attached to the Motion to Dismiss. Conversely, Covenant did not reference Chapter 70 in the Complaint. It did not serve as the basis for the City's denial of Covenant's sign applications, and there is no indication in the present record that Chapter 70 is part of, or an extension of, the Zoning Ordinance. "Documents that are neither included in the plaintiff's complaint nor central to the claim should not be considered on a motion to dismiss." Albany Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d 969, 971 (7th Cir. 2002). Therefore, the Court has not relied on Chapter 70 in evaluating the City's motion.

  Finally, the Court has considered the November 19, 2004 letter from the City to Covenant denying the permit applications (attached as Exhibit C to the Motion for Preliminary Injunction), because it is relevant to the Court's consideration of subject-matter jurisdiction.

  III. MOTION TO DISMISS

  The City seeks to dismiss Covenant's Complaint under FED. R. CIV. P. 12 (b) (1) for lack of subject-matter jurisdiction. When deciding a Rule 12 (b) (1) motion, a district court accepts as true all well-pleaded factual allegations and draws reasonable inferences in favor of the plaintiff. See United Transp. Union v. Gateway W. Ry. Co., 78 F.3d 1208, 1210 (7th Cir. 1996). In cases where a party challenges the existence of subject-matter jurisdiction, the court may "look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter exists." Capital Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993).

  The City also seeks to dismiss pursuant to FED. R. CIV. P. 12(b) (6) for failure to state a claim under which relief may be granted. In considering a Rule 12(b) (6) motion, the court must accept as true all well-pleaded facts and must draw all reasonable inferences from those allegations in plaintiff's favor. See MCM Partners, Inc. v. Andrews-Bartlett & Assoc., 62 F.3d 967, 972 (7th Cir. 1995). The district court shall only dismiss a complaint under ...


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