United States District Court, N.D. Illinois, Eastern Division
August 19, 2005.
COVENANT MEDIA OF ILLINOIS, Plaintiff,
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
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
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
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 Rule 12(b) (6) if it is beyond doubt
that the plaintiff can prove no facts that would entitle him to
relief. See id.
A. Jurisdictional Challenge
The City asserts that Covenant has standing only to challenge
Section 11.1 of the Zoning Ordinance. The City also contends that
the action is not ripe for adjudication. The Court must consider
these jurisdictional challenges before reaching the merits of the
motion. The Court initially notes that in the First Amendment
context, the "standing and ripeness requirements are more relaxed
than in other contexts." Covenant Media of Ill., L.L.C. v. City
of Des Plaines, 04 C 8130, 2005 WL 1377859, at *5 (N.D. Ill.
June 8, 2005). 1. Ripeness
The City initially contends that Covenant's claims are not ripe
because Covenant did not receive an official written denial of
the permit applications. This argument is meritless. In the
Complaint, Covenant alleges that the City hand wrote a denial on
the first application and that the City telephoned Covenant to
convey the denial of the other thirteen applications on November
18, 2004. The City also confirmed the denial in a letter written
to Covenant on November 19, 2004.
The City also argues that Covenant's claims are not ripe
because it failed to exhaust administrative remedies. Covenant
did not appeal the denial to the zoning administrator, amend its
application to put the signs at a different location, or petition
to amend the zoning ordinance. However, as Covenant points out,
the exhaustion requirement does not apply to suits challenging
ordinances or statutes as facially invalid. See Nat'l Adver. Co.
v. Town of Babylon, 900 F.2d 551, 555 (2d Cir. 1990);
Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969) ("The
Constitution can hardly be thought to deny to one subjected to
the restraints of such an ordinance the right to attack its
constitutionality, because he has not yielded to its demands."
(citation omitted)); see also Covenant Media, 2005 WL 1377859
(claims were ripe although no appeal). Accordingly, Covenant
presents claims that are ripe for judicial determination. 2. Standing
"To establish standing, Covenant must demonstrate `(1) injury
in fact (the actual or imminent invasion of a concrete and
particularized interest), (2) causation (a causal connection
between the defendant's actions and the injury), and (3)
redressability (the likelihood that the injury is redressable by
a favorable court decision.'" Covenant Media, 2005 WL 1377859,
at *3 (citation omitted). In the Complaint, Covenant alleged an
injury in fact: it expended time and money identifying property
owners and entering into leases and subsequently submitted
fourteen sign applications that were denied. Covenant also
alleged that the City caused the injury: the City denied the
applications pursuant to Section 11.1 of the City's Zoning
Ordinance. If successful, then Covenant's injury could be
redressed through injunctive relief and damages. See id. at *4.
Covenant comprehensively attacks the constitutionality of the
City's sign restrictions, both as applied to it and as applied to
third parties under the overbreadth doctrine. "To avoid chilling
the speech of third parties who may be unwilling or unlikely to
raise a challenge in their own stead, the overbreadth doctrine in
certain circumstances permits litigants already before the court
to challenge a regulation on its face and raise the rights of
third parties whose protected expression is prohibited or
substantially burdened by the regulation." Schultz v. City of
Cumberland, 228 F.3d 831, 848 (7th Cir. 2000). The City contends that Covenant
only has standing to challenge Section 11.1 of the Zoning
Ordinance, relying on the Eleventh Circuit decision in Granite
State Outdoor Advertising, Inc. v. City of Clearwater, Fl.,
351 F.3d 1112 (11th Cir. 2003). The Court disagrees. The Eleventh
Circuit itself recently recognized that the "Clearwater court
overlooked our past Eleventh Circuit precedent . . . when it
assumed that under the overbreadth doctrine, a plaintiff can only
challenge the one section under which it suffered a concrete
injury." Tanner Advertising Group, L.L.C. v. Fayette County,
Ga., 411 F.3d 1272, 2176 (11th Cir. 2005). The Eleventh Circuit
thus held that "in light of the strong precedent from the Supreme
Court and this Circuit concerning the doctrine of overbreadth
which preceded the Clearwater decision, we are compelled to . . .
disregard the narrow approach to the overbreadth doctrine
employed by the Clearwater court." Id. at 1277. The Court
concludes that Covenant has standing to challenge the
constitutionality of the Zoning Ordinance, both as applied to it,
and to third parties under the overbreadth doctrine.
For the foregoing reasons, the City's Motion to Dismiss for
lack of subject-matter jurisdiction is DENIED.
Covenant alleges that the "Sign Ordinance" is unconstitutional
for the following reasons: it favors commercial over
noncommercial speech (Count I); lacks necessary procedural safeguards (Count
II); grants city officials an impermissible level of discretion
(Count III); impermissibly discriminates among noncommercial
messages (Count IV); prohibits far more speech than can be
justified by the City's asserted interests (Count V); does not
directly advance any governmental interest in a material way
(Count VI); unduly burdens citizen and property owners right to
engage in protected first amendment activity (Count VII);
impermissibly favors some commercial topics at the expense of
others (Count VIII); violates equal protection (Count IX); is too
vague in violation due process (Count X); is not narrowly
tailored (Count XI); is unconstitutional as applied to Covenant
(Count XII); and is unconstitutional as applied to third parties
under the overbreadth doctrine (Count XIII). Count XIV contains
Covenant's request for injunctive relief. The Court notes that
Covenant's Complaint here is nearly identical to the complaint it
filed against the City of Des Plaines, Illinois, in another case
pending in this district. See Covenant Media, 2005 WL 1377859.
Although the Zoning Ordinance clearly defines the terms "sign,"
"advertising sign," and "business sign," the Court's review
reveals that its other sign-related provisions are confusing and
poorly drafted. For example, the Zoning Ordinance divides the
City into the following ten districts: three residential
districts; an office research district; a public land use area; a
commercial business district; a service business commercial district; a
community commercial business district; a light industrial
district; and a heavy industrial district. § 6.1. There is no
designated "manufacturing district." Yet, certain sections refer
to the industrial districts as "manufacturing districts." It is
unclear if both the light and heavy industrial districts
constitute manufacturing districts, and if so, what
distinguishing characteristics exist between the two.
The Zoning Ordinance only has one provision dealing strictly
with signs Section 11. Section 11.1, entitled "Permitted
signs, manufacturing district," is perhaps the most confusing.
It provides that "[a]ll signs permitted in the business districts
shall be permitted in the industrial districts." It also defines
the size and number of billboards permissible "per buildable lot
in a commercial or industrial district adjacent to an interstate
tollway or expressway." Significantly, the Zoning Ordinance does
not define what signs are permitted in the business districts.
Further, only the service business commercial and community
commercial business districts sections of the Zoning Ordinance
cross-reference Section 11.
Accepting as true Covenant's well-pleaded facts, as is
required, Covenant's permit applications were located in
commercial or industrial areas of the City adjacent to interstate
tollways or expressways. See MCM Partners, Inc.,
62 F.3d at 972. The City denied the applications, stating that under Section 11.1,
"billboards are only allowed in a manufacturing district adjacent
to the expressway." Based upon the confusing language of the
Zoning Ordinance relating to signs and the lack of information in
the record, the Court cannot discern at this juncture what are
commercial, industrial, and manufacturing districts and which
signs are actually restricted or permitted in these districts.
The Court also cannot determine if the Zoning Ordinance is
constitutional as applied to Covenant or to third parties. The
Court expects the parties to furnish further information at the
preliminary injunction hearing to supplement the record. Because
it is possible that Covenant could prove facts that would entitle
it to relief, the City's Motion to Dismiss pursuant to Rule
12(b)(6) is DENIED.
For the foregoing reasons, the City's Motion to Dismiss is
IT IS SO ORDERED.
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