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Bond Kildeer Marketplace, LLC v. Cbs Outdoor

September 25, 2012

BOND KILDEER MARKETPLACE, LLC,
PLAINTIFF-APPELLEE AND CROSS-APPELLANT,
v.
CBS OUTDOOR, INC., DEFENDANT-APPELLANT AND CROSS-APPELLEE.
PRESIDING.



Appeal from the Circuit Court of Lake County. No. 11-LM-766 Honorable Michael J. Fusz, Judge,

The opinion of the court was delivered by: Justice Burke

JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Zenoff and Hudson concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, CBS Outdoor, Inc., owns outdoor advertising billboards, including a billboard constructed on the property of plaintiff, Bond Kildeer Marketplace, LLC, located in the Village of Kildeer, Illinois (Village). Plaintiff owns both the property on which the billboard is constructed, which defendant leases, and certain surrounding property, both of which are located at the intersection of Rand Road and North Plum Grove Road in the Village. Plaintiff purchased the property in 2007 and became the successor lessor under the lease agreement. Pursuant to the lease, the original lessors, James and Marjorie Barnthouse, leased the premises to defendant's predecessor in interest as lessee, Scadron Enterprises GP, in July 1989. Thereafter, Scadron constructed the billboard on the premises. The stated term of the lease was 20 years, deemed renewed unless one party terminated the lease by notice to the other at least 60 days prior to the end of the initial term. Plaintiff neglected to exercise its right to terminate under the rollover provision. Two other provisions of the lease are relevant: (1) section 10 includes a termination provision by which the lessor may terminate "if the LESSOR is to improve the unimproved property by erecting thereon a permanent private, commercial or residential building, such building to be constructed upon the location where the LESSEE's signs are presently located," and (3) section 13 grants the lessee certain rights if some governmental action prevents or hinders construction or maintenance of the billboard.

¶ 2 Scadron obtained a permit for the billboard from the Illinois Department of Transportation (IDOT) in 1989, pursuant to the Illinois Highway Advertising Control Act of 1971 (Highway Ad Act) (225 ILCS 440/1 et seq. (West 2010)). Scadron transferred ownership of the billboard to defendant's predecessor, Outdoor Systems, Inc. (OSI). After OSI acquired the billboard, it did not renew the Illinois permit. Defendant subsequently acquired the billboard, but neither defendant nor its predecessors renewed the Illinois permit at any time from 1997 through the commencement of the present litigation in 2011.

¶ 3 On May 28, 2008, the Village passed an ordinance (Village of Kildeer Ordinance No. 08-O-1012 (adopted May 28, 2008)) approving the Village's annexation agreement with plaintiff, allowing the existing billboard to remain on the property until April 9, 2009, or the issuance of the first certificate of occupancy for the property, whichever occurred first (the annexation ordinance). On August 26, 2008, the Village adopted an ordinance (Village of Kildeer Ordinance No. 08-O-1023 (adopted Aug. 26, 2008)) approving a final plan and final plat of subdivision for the Kildeer Marketplace Development on plaintiff's property (the development ordinance). By this ordinance, the Village approved plaintiff's final plan to develop the entire property, including the subject premises where the billboard is located, into a shopping center. The Village amended the development ordinance on April 20, 2010, approving revision of the site plan, which does not provide or allow for a billboard on the premises or elsewhere on the property. Village of Kildeer Ordinance No. 10-O-007 (adopted Apr. 20, 2010). The site plan calls for the shopping center parking lot to be built on the premises and other portions of the property.

¶ 4 Plaintiff began to construct the shopping center on the property in 2008. By October 7, 2011, during argument on plaintiff's motion for summary judgment, plaintiff had constructed the parking lot of the shopping center, except on the site where the billboard continues to stand.

¶ 5 On August 12, 2010, plaintiff served notice to defendant to terminate the lease, claiming that it could do so pursuant to section 10 of the lease because it was "building" on the location where the billboard was located. Defendant refused to vacate the premises. In November 2010, plaintiff supplemented its notice, demanding, based on the development ordinance, that the billboard be removed because the billboard was illegal. Plaintiff also forwarded the Village's demand letter, dated November 16, 2010, to defendant and reiterated that the billboard must be removed. Defendant persisted in rejecting the notices and refused to remove the billboard and surrender possession of the premises.

¶ 6 Plaintiff thereafter filed a two-count complaint, seeking an order of possession under the Illinois Forcible Entry and Detainer Act (735 ILCS 5/9-101 et seq. (West 2010)) and a declaratory judgment that, without limitation, the lease was properly terminated and the billboard must be removed. Plaintiff asserted that (a) plaintiff may properly terminate the lease pursuant to section 10 because plaintiff is improving the property, including the subject premises, by constructing a commercial building, the shopping center, thereon; and (b) the billboard is illegal under Village ordinances, entitling plaintiff to terminate the lease.

¶ 7 In response, defendant filed combined motions under sections 2-615 and 2-619 of the Code of Civil Procedure (see 735 ILCS 5/2-619.1 (West 2010)), seeking to dismiss plaintiff's complaint. Plaintiff filed a motion for summary judgment. The parties agreed that there were no disputed issues of fact, that section 10 of the lease was unambiguous, and that the trial court should construe the lease as a matter of law.

¶ 8 The trial court granted plaintiff's summary judgment motion as to the claim regarding section 10 of the lease, finding that the parking lot proposed for the subject property was an "accessory building," triggering plaintiff's right to terminate the lease pursuant to section 10. The trial court denied plaintiff summary judgment as to the illegality claim, finding that, notwithstanding the Village ordinances, the billboard was a legal, nonconforming use. Consequently, by this decision, the trial court denied defendant's section 2-615 motion to dismiss the section 10 claim but granted defendant's section 2-619 motion to dismiss the illegality claim.

¶ 9 Defendant appeals the denial of its section 2-615 motion and the granting of plaintiff's summary judgment motion, contesting the trial court's finding that the parking lot proposed for the subject property was an "accessory building," triggering plaintiff's right to terminate the lease pursuant to section 10. Plaintiff cross-appeals the denial of its summary judgment motion relating to its claim that the Village ordinances made the billboard illegal, which rendered the lease unenforceable.

¶ 10 ANALYSIS

ΒΆ 11 We first address plaintiff's contention that the trial court erred in denying summary judgment and finding that the billboard was a legal, nonconforming use. In appeals from summary judgment rulings, reviewing courts conduct de novo review. Makowski v. City of Naperville,249 Ill. App. 3d 110, 115 (1993). "It is the judgment and not what else may have been said by the lower court that is on appeal to the reviewing court." Id. "The reviewing court's function in reviewing a summary judgment is to determine whether the trial court correctly found that ...


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