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
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.
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
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
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
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 ...