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General Auto Service Station v. City of Chicago

May 23, 2006


The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer


Plaintiffs General Auto Service Station, F.A.Y. Properties, Inc. and Cosmopolitan National Bank of Chicago, owners of a large commercial sign in Chicago (the "Wall Sign"), allege that the City of Chicago's (the "City") efforts to enforce a zoning regulation that prohibits such signs within 250 feet of a residential district violate Plaintiffs' substantive-due-process rights. After a bench trial, the court concluded that Plaintiffs' action was barred by the two-year statute of limitations applicable to Plaintiffs' 42 U.S.C. § 1983 claims, and, even if it was not time-barred, Plaintiffs' action failed on its merits. Plaintiffs have moved this court pursuant to FED. R. CIV. P. 59 to amend and modify its judgment, challenging both determinations. First, Plaintiffs argue that this court erroneously concluded that their substantive-due-process claims accrued more than two years before Plaintiffs filed this action. Second, Plaintiffs contend that Chapter 86 of the City's Municipal Code, requiring a permit before illuminating or enlarging commercial and non-commercial signs, constitutes an unlawful prior restraint, and consequently cannot be a basis for denying the Wall Sign legal, non-conforming status under the current Zoning Ordinance. Finally, Plaintiffs argue that the Wall Sign should not be removed entirely, even if it violates Chapter 86, because Plaintiffs retain a protected property interest in the Sign as it existed before Plaintiffs violated the ordinance. For the following reasons, the court denies Plaintiffs' motion.


The facts of this case are presented in this court's April 22, 2005 Memorandum Opinion and Order, see Memorandum Opinion and Order, No. 00 C 0368 (N.D. Ill. 2005) (hereinafter, "April 2005 Order"), its May 21, 2001 and March 9, 2004 Memorandum Opinion and Orders, see General Auto Serv. Station v. City of Chicago, No. 00 C 368, 2001 WL 558148 (N.D. Ill. May 21, 2001) (General Auto I) and General Auto Serv. Station v. City of Chicago, No. 00 C 368, 2004 WL 442636 (N.D.Ill. Mar. 9, 2004) (General Auto II), and in the Seventh Circuit's decision in General Auto Serv. Station LLC v. City of Chicago, 319 F.3d 902 (7th Cir. 2003). This opinion assumes the reader's familiarity with those decisions.

In its April 2005 Order, this court concluded that Plaintiffs' substantive-due-process claims accrued in September 1997, more than two years before Plaintiffs filed the present action, when Plaintiffs received a violation notice stating: "[o]btain permit for outdoor flat building sign installed without permit." See April 2005 Order at 12. The court nevertheless went on to address the merits of Plaintiffs' claims "[i]n light of the City's extended delays in enforcing the Zoning Ordinance." Id. According to Plaintiffs, the 1990 Zoning Ordinance's "grandfather clause" arbitrarily and irrationally distinguished between signs "lawfully erected pursuant to a permit," which were exempt from amended Zoning Ordinance § 8.9(7), and those signs "lawfully erected" without a permit, or before any such permit was required. Id. at 13. Without reaching the issue of whether this distinction was rational, this court determined that Plaintiffs had not met their burden to demonstrate that the Wall Sign had been erected lawfully. Id. Even assuming that the Wall Sign did not violate the pre-1990 Zoning Ordinance, see id. at 15, the court concluded that Plaintiffs had failed to obtain a permit before illuminating, then enlarging the Wall Sign. See id. at 16--17. Accordingly, the Wall Sign "was not lawfully erected as of the date it was illuminated," and the court entered judgment in favor of the City on Plaintiffs' substantive-due-process claims. Id. at 17. Plaintiffs filed their Rule 59 motion to alter and amend the judgment on May 6, 2005, and filed a "Supplement" to that motion on May 10, 2005.


A. The Rule 59 Standard

To prevail on their Rule 59 motion, Plaintiffs must point to evidence in the record that "clearly establishes a manifest error of law or fact." See County of McHenry v. Ins. Co. of the West, 438 F.3d 813, 819 (7th Cir. 2006) (internal quotations omitted).*fn1 A Rule 59 motion is not a vehicle for advancing "arguments or theories that could and should have been made" prior to judgment, id. (internal quotations omitted), nor is it "an appropriate forum for rehashing previously rejected arguments." Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996). Plaintiffs' Motion to Amend largely rehashes arguments presented in their post-trial brief, arguments which this court either explicitly or implicitly rejected. Even if the court were to overlook this defect, the court is not persuaded that the record clearly establishes a manifest error of law or fact.

B. The Statute of Limitations

Plaintiffs contend that this court incorrectly determined that Plaintiffs' substantive-due-process claims accrued in September 1997, more than two years before Plaintiffs filed this lawsuit, when the City notified Whiteco Outdoor Advertising ("Whiteco"), Plaintiffs' lessee, that the Wall Sign lacked a necessary permit. See April 2005 Order at 12. Instead, Plaintiffs argue-as they did in their post-trial brief-that the proper accrual date is April 21, 1998, when the City denied Whiteco's permit application. See Pls.' Motion to Amend and Modify the Court's Memorandum, Opinion and Order of April 22, 2005 Entering Judgment in Favor of the City of Chicago (hereinafter, "Motion to Amend") ¶ 3; Pl.'s Post Trial Brief and Final Argument (hereinafter, "Pls.' Post-Trial Br.") ¶ 69. This court previously rejected this argument, and Plaintiffs have not adduced any new evidence requiring the court to revisit that determination. Plaintiffs' substantive-due-process claims accrued when Plaintiffs knew or should have known that their constitutional rights had been violated. Behavioral Institute of Indiana, LLC v. Hobart City of Common Council, 406 F.3d 926, 929 (7th Cir. 2005). The September 1997 Violation Notice's plain language required Whiteco to obtain a permit, even though its non-permitted sign was purportedly "legal" under ordinances in place at the time it was erected and subsequently modified. At this point, Plaintiffs were aware that the City would not allow the Wall Sign to remain in place without a permit. Under Plaintiffs' theory of the case, the Zoning Ordinance, which codifies the challenged permit requirement, is itself arbitrary and irrational. It would not have been any less arbitrary and irrational had the City granted rather than denied Whiteco's permit request.*fn2

Contrary to Plaintiffs' assertions, the Seventh Circuit's earlier decision in this case does not require a different result. Motion to Amend at 3. In concluding that this court had erred in dismissing Plaintiffs' complaint pursuant to Younger v. Harris, 401 U.S. 37 (1971), see General Auto, 319 F.3d at 907, Plaintiffs contend that the Court of Appeals implicitly "recognized" that Plaintiffs' claims accrued on April 21, 1998. Motion to Amend at 3; see also General Auto, 319 F.3d at 904. First, Plaintiffs "could and should have" made this argument prior to judgment. County of McHenry, 438 F.3d at 819. Second, Plaintiffs reach this conclusion only by taking language from the Seventh Circuit's opinion out of context. While the Seventh Circuit concluded that Younger abstention was not warranted, it did not reach the merits of Plaintiffs' claims, which were not briefed on appeal. General Auto, 319 F.3d at 907. On remand, this court dismissed all but two counts of Plaintiffs' complaint, then conducted a bench trial on Plaintiffs' remaining substantive-due-process claims. After the trial, the court concluded that Plaintiffs were aware in September 1997 that the City required Whiteco to obtain a permit for the Wall Sign. April 2005 Order at 11--12. As previously discussed, Plaintiffs knew or should have known at that point that their constitutional rights were violated in the manner alleged.

Plaintiffs also rehash their alternative argument that their rights accrued only when the state court denied their motion to intervene. See Motion to Amend at 3--5; Pls.' Post Trial Br. ¶ 72. Plaintiffs' argument, for which they have not cited any legal authority, assumes that Plaintiffs' state law remedies were adequate until the state court denied their motion to intervene. This is contrary to this court's holding in General Auto II, a holding that Plaintiffs do not challenge here. See General Auto II, 2004 WL 442636, *10--11. Although not articulated as such, Plaintiffs' argument is perhaps better understood as a request that the statute of limitations be tolled for the period October 19, 1998 (when Whiteco filed its complaint in state court) through December 29, 1999 (when the state court denied their motion to intervene). Were the court to adopt this theory, it would mean that the time for filing Plaintiffs' complaint hinged upon Plaintiffs' own conduct. The Illinois intervention statute would not have prevented Plaintiffs from moving to intervene sooner (or later, for that matter). See 735 Ill. Comp. Stat. 5/2-408 (2005). Absent contrary authority, the court declines to adopt Plaintiffs' counterintuitive interpretation of § 1983's statute of limitations. Plaintiffs' lawsuit, filed more than two years after their rights accrued, was untimely.

B. Substantive Due Process Claims

Although this court concluded in its April 2005 Order that Plaintiffs' substantive-due-process claims were time-barred, a conclusion that the court reaffirms here, this court nevertheless addressed the substance of those claims. See April 2005 Order at 12. The court concluded that the Wall Sign did not constitute a legal, non-conforming use because Plaintiffs did not obtain permits, as required by Chicago Electrical Code Section 86.1, before illuminating and then enlarging the Wall Sign sometime during the period between 1962 and 1979. Id. at 16--17. In response, Plaintiffs argued that the applicable portions of Chapter 86.1 are unconstitutional prior restraints, see Pls.' Post Trial Br. at ¶¶ 89--93, an argument they revisit in their motion to amend the judgment. Motion to Amend at ¶¶ 8--17. According ...

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