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COVENANT MEDIA OF ILLINOIS v. CITY OF DES PLAINES

September 15, 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

Presently before the court is plaintiff Covenant Media of Illinois, L.L.C.'s ("Covenant"), motion for a preliminary injunction against defendant City of Des Plaines, Illinois ("City"), to enjoin the City from enforcing its Sign Ordinance. For the reasons stated below, the court grants Covenant's motion.

I. FACTS

  A. Sign Ordinance

  At issue in the present 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 The Sign Ordinance makes it unlawful to erect a non-exempt sign without first obtaining a permit from City officials. See § 11.3-7. 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. 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. The City denied Covenant's application as submitted by a letter dated November 19, 2004. The City has not allowed Covenant to post its proposed sign.

  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.

  C. Previous Proceedings

  On June 8, 2005, this court issued a Memorandum Opinion and Order denying the City's motion to dismiss Covenant's challenge to the constitutionality of the City's Sign Ordinance. See Covenant Media of Ill., L.L.C. v. City of Des Plaines, No. 04 C 8130, 2005 U.S. Dist. LEXIS 11713 (N.D. Ill. June 8, 2005). The court conducted a preliminary evaluation of the constitutionality of the City's Sign Ordinance and determined that Covenant has standing to challenge the Sign Ordinance, both as applied to it and, under the overbreadth doctrine, to third parties, see Slip. Op. at 8-9, and that the lawsuit is ripe for judicial review. Slip. Op. at 10.

  The court also found that the Sign Ordinance contained some content-based restrictions, and, as a result, Covenant stated a claim that the Sign Ordinance unconstitutionally favored commercial speech over non-commercial speech, impermissibly discriminated among non-commercial messages, and impermissibly favored some commercial topics at the expense of others. Slip. Op. at 13-14. Additionally, the court found that Covenant stated a claim that the Sign Ordinance is overbroad as a result of the ordinance's failure to specify criteria that should be used in determining whether a sign contains "obscene, indecent, or immoral matter" or define those terms. Slip. Op. at 15. The court further found that the Sign Ordinance granted officials unbridled discretion to approve or deny a sign permit application, Slip. Op. at 16-17, and that Covenant had stated a claim that the Sign Ordinance lacks adequate procedural safeguards. Slip. Op. at 18-19.

  Covenant filed the present motion for a preliminary injunction on June 22, 2005. Because the court recognized the problems inherent in granting what the court considered to be a well-founded motion for a preliminary injunction, the court ordered the parties to file a joint status report discussing whether the City intended to amend the Sign Ordinance. The parties complied with this order, submitting their joint status report on ...


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