United States District Court, N.D. Illinois
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For CBS Outdoor, Inc., Plaintiff: Robert J. Weber, Law Offices of Robert J. Weber, Chicago, IL.
For Village of Plainfield, Illinois, Defendant: Marie L. Pappas, LEAD ATTORNEY, McKeown Fitzgerald Zollner Buck Hutchison & Ruttle, Joliet, IL.
Rubé n Castillo, Chief United States District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff CBS Outdoor, Inc. (" CBS" ) brings this action against Defendants Village of Plainfield, Illinois (the " Village" ) and Red River Plainfield, LLC (" Red River" ) alleging violations of CBS's constitutional rights to due process, equal protection of the law, and freedom of speech. Presently before the Court is the Village's motion to dismiss the complaint for failure to state a claim upon which relief may be granted. For the reasons set forth below, the Village's motion is granted.
CBS, a Delaware corporation, is in the outdoor advertising business and owns or leases property on which it maintains outdoor advertising structures. (R. 1, Compl. ¶ ¶ 12-13.) It sells or donates its advertising space to third parties, or uses it itself, to communicate commercial and non-commercial messages to the public. ( Id. ¶ 13.) The Village is an Illinois municipal corporation located in Will and Kendall Counties. ( Id. ¶ 14.) Red River is an Illinois limited liability company with its principal place of business in Naperville, Illinois. ( Id. ¶ 15.) Masud M. Arjmand, a resident of Naperville, Illinois, is the sole member of Red River. ( Id. )
CBS owns and maintains a billboard that is the subject of this suit (the " Sign" ). ( Id. ¶ 5.) The Sign is a single pylon that is anchored in concrete approximately 20 feet below ground. ( Id. ¶ 20.) It has two back-to-back faces, 14 feet high and 68 feet wide, that are visible from Illinois State Route 59. ( Id. ) The top of the Sign is approximately 64 feet above the ground. ( Id. ) The Sign is located on a parcel of land (the " Property" ) that is owned by Red River and leased to CBS through a written agreement (the " Lease" ). ( Id. ¶ 5; R. 1, Ex. 1, Lease.) The Property is adjacent to another parcel of property (the " McDonald's Site" ) that is also owned by Red River. (R. 1, Compl. ¶ 15.)
Although not an original party to the Lease, CBS came to be the successor lessee of the Property and owner of the Sign through a series of transactions and mergers. ( Id. ¶ ¶ 25-26.) Red River is similarly a successor lessor of the Property rather than an original party to the Lease. ( Id. ¶ 27.) The Lease states that it commenced on August 8, 1991, and continued for
an initial term of ten years from the first day of the first month following erection of the advertising display(s) (hereinafter called " the effective date" ), and shall continue thereafter, at the option of the Lessee, for a second term of ten years,
and thereafter from year to year, on the same terms, until terminated as of any subsequent anniversary of the effective date by written notice of termination given not less than sixty days prior to such anniversary date by either the Lessor or Lessee.
(R. 1, Ex. 1, Lease ¶ 3.) In September 1991, Will County issued a building permit for the Sign. (R. 1, Compl. ¶ 17; R. 1, Ex. 3, Permit.) On April 21, 1991, Illinois issued a state permit for the Sign. (R. 1, Compl. ¶ 18; R. 1, Ex. 4, Permit.) CBS alleges that construction of the Sign was completed in October 1992, but the parties agreed that the initial term of the Lease began on September 1, 1992, and expired on August 31, 2002. (R. 1, Compl. ¶ 19.) At that point, the lessee at the time, CBS's predecessor in interest, exercised its option to renew the Lease for a second ten-year term, which expired on August 31, 2012. ( Id. ) On March 28, 2012, Red River and CBS executed an Addendum to the Lease (the " Addendum" ) that extended CBS's right to possession of the Property for a term of twenty years. ( Id. ¶ 28; R. 1, Ex. 5, Addendum.) The Addendum was backdated to September 1, 2011, and the term of the Addendum ran through August 31, 2031. (R. 1, Compl. ¶ 28; R. 1, Ex. 5, Addendum.)
On August 31, 1998, the Village annexed the Property and the McDonald's Site at the request of the owner of those properties--Red River's predecessor in interest. (R. 1, Compl. ¶ 34.) On October 18, 2004, the Village enacted Ordinance 2428 (the " 2004 Sign Code" ), a comprehensive regulation of signs in the Village. ( Id. ¶ 35; R. 1, Ex. 6, Portions of 2004 Sign Code). The 2004 Sign Code was amended and recodified on August 15, 2006 as Ordinance 2578 (the " 2006 Sign Code" ).  (R. 1, Compl. ¶ 36; R. 1, Ex. 7, 2006 Sign Code.) As relevant here, the 2006 Sign Code states that " [b]illboards or other similar large outdoor advertising devices" are " expressly prohibited." (R. 1, Ex. 7, 2006 Sign Code § 9-95(3).) CBS alleges that the Property was zoned such that the Sign was legal when it was constructed, that it was constructed and maintained in accordance with applicable building codes, and that it has never been cited for a code violation. (R. 1, Compl. ¶ 24.)
In 2005, McDonald's USA, LLC (" McDonald's" ) approached the Village to propose developing the McDonald's Site as a typical McDonald's restaurant with a drive-through window. ( Id. ¶ 37.) On April 17, 2006, the Village enacted Ordinance 2548, which granted the special use permit McDonald's needed to develop its proposed restaurant at the McDonald's Site. ( Id. ¶ 39; R. 1, Ex. 2, Ord. 2548.) Ordinance 2548 granted the permit subject to two conditions: (1) the execution of a statement of intent; and (2) " Removal of the [Sign], when the current lease expires in 2011, or sooner if possible" (the " Removal Provision" ). (R. 1, Ex. 2, Ord. 2548 at § 3.) On August 3, 2006, McDonald's, the Village, and the owner of the property (Red River's predecessor in interest) fulfilled the first condition of Ordinance 2548 by signing the Planned Unit Development Commercial and Industrial Statement of Intent and Agreement (the " PUD Statement" ). (R. 1, Compl. ¶ 41.) The PUD Statement provides, inter alia , that the
Lease " shall not be renewed or extended" by the owner or any successor, and " [u]pon the expiration of the [Lease] in 2011, or upon the earlier termination of the [Lease] to the extent legally permitted," the Sign would promptly be removed. ( Id. ¶ 42; R. 1, Ex. 8, PUD Statement ¶ 3.) CBS was not notified of the enactment of Ordinance 2548 or of the signing of the PUD Statement. (R. 1, Compl. ¶ ¶ 39, 41.) CBS alleges that when Red River obtained title to the Property and the McDonald's Site in November 2007, it did not have actual notice or knowledge of the Removal Provision contained in Ordinance 2548. ( Id. ¶ 27.)
On April 30, 2012, an officer of the Village wrote to Red River that the Property was in violation of Section 9-95(3) of the 2006 Sign Code and the PUD Agreement. ( Id. ¶ 45; R. 1, Ex. 9, Apr. 30, 2012 Letter to Red River.) The letter instructed that the Sign should be removed by May 30, 2012, and that failure to remove the Sign would result in a fine of up to $750 per day and possible prosecution. (R. 1, Compl. ¶ 45; R. 1, Ex. 9, Apr. 30, 2012 Letter to Red River.)
On June 4, 2012, CBS filed its complaint against Red River and the Village. (R. 1, Compl.) In Count I, CBS brings three claims of constitutional violations pursuant to 42 U.S.C. § § 1983 and 1988. CBS alleges that the Removal Provision of Ordinance 2548 constitutes a deprivation of substantive due process, ( id. ¶ 57); a deprivation of equal protection of the law, ( id. ¶ 58); and a deprivation of CBS's freedom of speech ( id. ¶ 59). CBS prays for relief in the form of a permanent injunction barring the Village from enforcing the Removal Provision. ( Id. ¶ 61.) In Count II, CBS seeks a declaratory judgment that the Removal Provision is invalid and unenforceable under Illinois State law. ( Id. ¶ ¶ 62-66.) CBS also seeks a preliminary injunction prohibiting enforcement pendente lite. ( Id. ¶ ¶ 46-53).
On August 31, 2012, the Village moved to dismiss CBS's complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (R. 12, Def.'s Mot.) The Village argues that CBS's claims are barred by the applicable statutes of limitations, (R. 14, Def.'s Mem. at 5-6); that CBS has not shown a likelihood of success on the merits sufficient to justify a preliminary injunction, ( id. at 6-7); that CBS does not have a legally cognizable or constitutionally protected interest in the property at issue such that the requested relief may be granted, ( id. at 7-9); that the Addendum was illegal and void, ( id. at 9-10); that CBS's request for a declaratory judgment should be denied, ( id. at 11-13); and ...