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Covenant Media of Illinois, L.L.C. v. City of Elgin

March 7, 2006


The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge


This matter is before the court on Defendant City of Elgin's ("City") motion for summary judgment and the parties' motions to strike. For the reasons stated below, we grant the City's motion for summary judgment and deny the motions to strike as moot.


Plaintiff Covenant Media of Illinois, L.L.C. ("Covenant") alleges that it is in the business of erecting and operating commercial and non-commercial advertising signs that are utilized by businesses, churches, organizations, and individuals. In 2004, Covenant leased space for fourteen signs at several business properties in the City. Subsequently, in three separate groups of applications, Covenant filed for sign permits with the City for the fourteen signs ("Applications"). According to Covenant, on April 12, 2005, a City official ("Official") called Covenant's representative and informed Covenant that the Applications "could not be processed because the City did not allow signs with off-premises messages." (Compl. Par. 19). Covenant claims that it asked the Official to provide the denial in writing and the Official refused. Covenant then brought the instant action seeking to have the City's Sign Ordinance ("Sign Ordinance") declared unconstitutional. In October of 2005, the City enacted an Amended Sign Ordinance, which replaced the Sign Ordinance that was in effect when the Applications were denied by the City.

Covenant alleges in its complaint that the Sign Ordinance unconstitutionally favors commercial over noncommercial speech (Count I), the permit requirements lack necessary procedural safeguards (Count II), the Sign Ordinance grants City officials an impermissible level of discretion to approve or deny permits (Count III), the Sign Ordinance impermissibly discriminates among noncommercial messages (Count IV), the Sign Ordinance prohibits far more speech than can be justified by the City's asserted interests (Count V), the Sign Ordinance does not directly or materially advance governmental interests (Count VI), the Sign Ordinance unduly burdens the ability of citizens and property owners to engage in protected First Amendment activity using fundamental means of communication (Count VII), the Sign Ordinance impermissibly favors some commercial topics at the expense of others (Count VIII), the Sign Ordinance violates Covenant's equal protection rights (Count IX), the Sign Ordinance is vague and violates Covenant's due process rights (Count X), the regulations are not narrowly tailored to promote the interests asserted by the City (Count XI), the Sign Ordinance is unconstitutional for additional reasons (Count XII), the Sign Ordinance is unconstitutional as it applies to third parties under the overbreadth doctrine (Count XIII), and that this Court should enjoin the City from enforcing the Sign Ordinance and allow Covenant's requested signs (Count XIV).


Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In seeking a grant of summary judgment, the moving party must identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).


The City argues that Covenant lacks standing to bring the instant action and that even if covenant has standing, the Sign Ordinance was not unconstitutional.

I. Whether Covenant Lacks Standing

The City argues that Covenant lacks standing to bring the instant action. A plaintiff must have standing to bring suit in federal court, which means that the plaintiff must allege "(1) that he has suffered an injury in fact (2) that is fairly traceable to the action of the defendant and (3) that will likely be redressed with a favorable decision." Books v. City of Elkhart, Indiana, 235 F.3d 292, 299 (7th Cir. 2000). An "injury in fact" is defined as "an invasion of a legally protected interest which is (a) concrete and particularized, . . . [and] (b) actual or imminent, not conjectural or hypothetical . . . ." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The party seeking to invoke federal subject matter jurisdiction bears the burden of establishing the required elements of standing. Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir. 2003).

A. Whether Covenant Suffered a Concrete Injury

The City claims that Covenant lacks standing because the Applications were deficient for a variety of reasons other than the one allegedly provided by the Official orally on April 12, 2005. The City claims that two of the Applications did not list the correct location of the proposed signs, that twelve of the fourteen proposed signs would have violated the height limitations under the Sign Ordinance, and that none of the Applications were accompanied by the required lighting plan and listing of a licensed electrical contractor. Covenant contends that the only reason provided by the Official for the denial of the Applications was that the proposed signs were off-premise signs and Covenant claims that the reasons now presented by the City are merely ad hoc rationalizations offered to justify the City's prior decision. Covenant also claims that the Official refused to provide a written denial of the Applications when Covenant requested one.

The evidence provided by Covenant shows that the Official orally indicated only that the Applications were denied because the signs were off-premise signs and that the Official refused to provide a written explanation for the denial. Considering those facts, we cannot infer in favor of the City that the Official denied the application for a variety of other unspoken reasons. The City has not pointed to evidence that would indicate that the Official, when denying the ...

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