United States District Court, N.D. Illinois, Eastern Division
[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.
MEMORANDUM OPINION AND ORDER
Rubé n Castillo, Chief United States District Judge.
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 amended 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 in part and denied in part.
CBS, a Delaware corporation, is in the outdoor advertising business and owns or leases property on which it maintains outdoor advertising structures. (R. 32, Am. Compl. ¶ ¶ 15-16.) It sells or donates its advertising space to third parties, or uses the space itself, to communicate commercial and non-commercial messages to the public. ( Id. ¶ 16.) The Village is an Illinois municipal corporation located in Will and Kendall Counties. ( Id. ¶ 17.) Red River is an Illinois limited liability company with its principal place of business in Naperville, Illinois. ( Id. ¶ 18.) 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. ¶ 6.) The Sign is a single pylon that is anchored in concrete approximately 20 feet below ground. ( Id. ¶ 24.) It has two back-to-back faces, 14 feet high and 48 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" ), which is owned by Red River and leased to CBS through a written agreement (the " Lease" ). ( Id. ¶ 6; 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. ( See R. 32, Am. Compl. ¶ ¶ 8-9.) The Property and the McDonald's Site were previously part of the same parcel of land in unincorporated Will County. ( Id. ¶ 8.) In 2006, the then-owner of the parcel of land, G& S Land Development, LLC (" G& S" ), and its tenant, McDonald's USA, LLC (" McDonald's" ), caused the Village to approve the subdivision of the property into two lots. ( Id. ) The Property upon which the Sign is situated is part of Lot 2; the McDonald's Site is Lot 1. ( Id. )
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. ¶ ¶ 29-30.) Red River is similarly a successor lessor of the Property rather than an original party to the Lease. ( Id. ¶ ¶ 31-32.) 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. 32, Am. Compl. ¶ 20; R. 1, Ex. 3, Permit.) On April 21, 1991, Illinois issued a state permit for the Sign. (R. 32, Am. Compl. ¶ 21; R. 1, Ex. 4, Permit.) Although the Lease states that it began in August 1991, CBS alleges that construction of the Sign was completed in October 1992 and the parties agreed that the initial term of the Lease began on September 1, 1992, and expired on August 31, 2002. (R. 32, Am. Compl. ¶ 22.) At that time, the lessee, 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. ¶ 23; 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. 32, Am. Compl. ¶ 23; R. 1, Ex. 5, Addendum.)
On August 31, 1998, the Village annexed the parcel of land containing the Property and the McDonald's Site at the request of the owner of the parcel. (R. 32, Am. Compl. ¶ 38.) On October 18, 2004, the Village enacted Ordinance 2428 (the " 2004 Sign Code" ), a comprehensive regulation of signs in the Village. ( Id. ¶ 39; 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. 32, Am. Compl. ¶ 40.) As relevant here, the 2006 Sign Code states that " [b]illboards or other similar large outdoor advertising devices" are " expressly prohibited." ( Id. ) CBS alleges that the Property was zoned such that the Sign was legal when it was constructed, that it was constructed and is maintained in accordance with applicable building codes, and that it has never been cited for a code violation. ( Id. ¶ 28.)
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. ¶ 44.) 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. ¶ 46; 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.) CBS alleges that the Removal Provision pertains only to Lot 2, not to the ...