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Cbs Outdoor, Inc v. the Department of Transportation

March 30, 2012

CBS OUTDOOR, INC,
PLAINTIFFS-APPELLANTS,
v.
THE DEPARTMENT OF TRANSPORTATION, AN AGENCY OF THE STATE OF ILLINOIS, AND 31W356 DIEHL INVESTORS, LLC,
AN ILLINOIS LIMITED LIABILITY COMPANY,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 10 CH 43446 Honorable Lee Preston, Judge Presiding.

The opinion of the court was delivered by: Justice Palmer

JUSTICE PALMER delivered the judgment of the court, with opinion. Justices Garcia and Lampkin concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff CBS Outdoor, Inc., appeals the trial court's denial of its writ of certiorari challenging the issuance of an outdoor billboard permit by defendant Illinois Department of Transportation (IDOT) to defendant 31W356 Diehl Investors, LLC (Diehl). We reverse and remand.

¶ 2 Diehl owned property located at 31W356 Diehl Road in Naperville (Diehl property). The Diehl property is adjacent to and south of Interstate 88 (I-88). Plaintiff had an agreement with Diehl to keep an outdoor billboard on the Diehl property until September 26, 2009, although plaintiff's lease on the property expired on April 30, 2009.

¶ 3 On June 26, 2009, Diehl submitted an application (application) to IDOT for an outdoor advertising sign permit (permit) for the Diehl property. In a cover letter to the application, Diehl stated that while plaintiff currently had an outdoor advertising sign on the Diehl property, Diehl was reviewing its rights to remove plaintiff's sign and requested that IDOT process Diehl's application. Diehl included a copy of a trustees' deed showing it owned the Diehl property, a Du Page County zoning ordinance effective May 1, 1957, and a zoning map designating the property as "Manufacturing 2" property. "Manufacturing 2" is the zoning designation required for the billboard Diehl was seeking. While the application described the proposed sign location as "60 feet from the N side of the highway right of way," the documents accompanying the application showed the proposed sign location to be south of I-88.

¶ 4 In a July 9, 2009, letter, Paul Lauricella, zoning technician for Du Page County, sent a letter to IDOT erroneously stating that the Diehl property was zoned "F-Farming" in 1959.

¶ 5 On July 17, 2009, IDOT informed Diehl that it intended to deny Diehl's application because"[t]he location proposed does not meet spacing or zoning requirements." IDOT also included a checklist of items Diehl was required to submit. The letter stated that Diehl had 30 days from the receipt of the letter to provide required documentation or challenge IDOT's intent to deny, and that "[i]f the required documentation or a challenge is not received within 30 days after receiving this notice[, Diehl's] permit application will be closed."

¶ 6 On July 27, 2009, IDOT informed plaintiff it needed to remove its sign from the Diehl property because the sign was illegal and the "location did not meet zoning requirements." Plaintiff subsequently removed its sign.

¶ 7 On August 17, 2009, Diehl sent a written response to IDOT, challenging IDOT's July 17, 2009, notice of intent to deny the application. Diehl explained that, while IDOT had requested a letter confirming the Diehl property was located within municipal limits as of September 21, 1959, the Diehl property was located in unincorporated Du Page County, and the Du Page County zoning ordinance passed before that date designated the Diehl property as zoned manufacturing.

¶ 8 On September 9, 2009, plaintiff filed an application for a new billboard sign permit on property located at 31W350 Diehl Road (31W350 property), which is adjacent to the Diehl property.

¶ 9 On September 17, 2009, plaintiff's counsel wrote to IDOT, acknowledging receipt of IDOT's July 27, 2009, letter that asked plaintiff to remove its sign from the Diehl property. Plaintiff's counsel then stated:

"We are also aware that your office recently received an application for an outdoor advertising sign at that same location during the time that [plaintiff's] sign existed. Based on my understanding of the Illinois Administrative Code (Section 522, et seq.) the subsequent application should not have been processed by IDOT and should have been denied."

ΒΆ 10 On September 18, 2009, IDOT issued its intent to deny plaintiff's permit. Plaintiff did not respond to ...


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