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Covenant Media of Illinois, L.L.C. v. City of Des Plaines

July 26, 2007

COVENANT MEDIA OF ILLINOIS, L.L.C., PLAINTIFF,
v.
CITY OF DES PLAINES, ILLINOIS, DEFENDANT.



The opinion of the court was delivered by: Judge Joan H. Lefkow

MEMORANDUM OPINION AND ORDER

Pursuant to Rules 59(e) and 60(b), Fed. R. Civ. P., Covenant Media of Illinois, L.L.C. ("Covenant") moves the court to reconsider its Memorandum Opinion and Order granting summary judgment in favor of the City of Des Plaines, Illinois ("the City"). For the reasons stated below, Covenant's motion is granted in part and denied in part.

STANDARD

A motion for reconsideration serves the limited function to correct manifest errors of law or fact or to present newly discovered evidence, and whether to grant such a motion is within the discretion of the court. Caisse Nationale Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269-70 (7th Cir. 1996). The problems warranting such a grant are rare. Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (citation omitted). The motion, however, serves a valuable function where the court "has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension." Bank of Waunakee, 906 F.2d at 1191 (7th Cir. 1990) (quotation omitted).

DISCUSSION

Covenant urges the court to reconsider two aspects of its grant of summary judgment in favor of the City: (1) Covenant contends that the court's conclusion that Covenant's application for a billboard at the 911 E. Touhy location would have been denied because it was located within 660 feet of an Interstate Highway in an area zoned for "single family residences" is based on a mistake of fact, because it is undisputed that the property at 911 E. Touhy was zoned "commercial" at the time Covenant submitted its application; and (2) Covenant contends that the court's conclusion that Covenant is not a prevailing party under 42 U.S.C. § 1988 and is thus not entitled to attorneys' fees and costs is contrary to established Seventh Circuit precedent.

The City agrees that the court misapprehended the facts when it found that the property at 911 E. Touhy was zoned for "single family residences" at the time Covenant submitted its applications. Nevertheless, the City argues that that mistake of fact is harmless because though the property was indeed zoned "commercial" at the time Covenant submitted its application, it was zoned for "single family residences" in 1959, which would have itself required the denial of Covenant's application.*fn1

The City relies on the Federal Highway Beautification Act of 1965, 23 U.S.C. § 131, to support its contention that IDOT and, by extension, the City would have been precluded from granting a permit for the erection of a billboard at the 911 E. Touhy location. That statute provided that if states did not adopt regulation for the "effective control of the erection and maintenance along the Interstate System and the primary system of outdoor advertising signs, displays, and devices," then those states would lose ten percent of their federal highway funds.

23 U.S.C. § 131(b).

Illinois acted to save its share of federal highway funds by enacting the Highway Advertising Control Act of 1971 ("the Illinois Act"), 225 Ill. Comp. Stat. 440 et. seq. The statute provides that no sign shall be "erected or maintained along primary or Interstate highways except those described in Sections 4.01 through 4.08." 225 Ill. Comp. Stat. 440/4 (1998). Relevant here, section 4.04 authorizes "[s]igns which are erected in business areas after the effective date of this Act and which comply, when erected, with Sections 5, 6 (subject to provisions of Section 7) and 8 of this Act." 225 Ill. Comp. Stat. 440/4.04 (1998). The Illinois Act defines "business area" as:

[A]ny part of an area adjacent to and within 660 feet of the right-of-way which is at any time zoned for business, commercial or industrial activities under the authority of any law of this State; or not so zoned, but which constitutes an unzoned commercial or industrial area as defined in Section 3.11. However, as to signs along Interstate highways, the term "business area" includes only areas which are within incorporated limits of any city, village or incorporated town, as such limits existed on September 21, 1959, and which are zoned for industrial or commercial use, or both, or to portions of Interstate highways which traverse other areas where the land use, as of September 21, 1959, was established by State law as industrial or commercial, or both. 225 Ill. Comp. Stat. 440/3.12 (1998) (emphasis added).*fn2

The Act provides that IDOT may establish regulations for the implementation and enforcement of the Illinois Act. 225 Ill. Comp. Stat. 440/14.01 (1998). Under these regulations, "business area" was further explained, providing, in relevant part, that:

Areas which were zoned as of September 21, 1959 and were not specifically zoned for business, commercial or industrial use as of September 21, 1959 and were outside corporate limits on that date will not be ...


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