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LLC v. Department of Transportation

Court of Appeals of Illinois, Fifth District

September 16, 2019

DUSTY'S OUTDOOR MEDIA, LLC, Plaintiff-Appellee,
THE DEPARTMENT OF TRANSPORTATION; RANDALL BLANKENHORN, Secretary of Transportation; and LAURA MLACNIK, Department of Transportation Bureau Chief of Land Acquisition, Defendants-Appellants.

          Appeal from the Circuit Court of Fayette County, No. 13-CH-22 Honorable Daniel E. Hartigan, Judge, presiding.

          Attorneys for Appellants Kwame Raoul, Attorney General, State of Illinois, David L. Franklin, Solicitor General, Carl J. Elitz, Assistant Attorney General.

          Attorney for Appellee Chad E. Chojnicki, McDevitt, Osteen, Chojnicki & Deters, LLC.

          JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Justices Welch and Cates concurred in the judgment and opinion.



         ¶ 1 This appeal involves a highway billboard that was erected prior to the effective date of the Highway Advertising Control Act of 1971 (Act) (225 ILCS 440/1 et seq. (West 2010)). New signs may not be erected without complying with the requirements of the Act. However, preexisting signs that do not conform with the Act's requirements may remain in place, and sign owners are allowed to perform "the normal maintenance or repair of signs and sign structures." Id. § 3.06. However, if more than 60% of the upright posts supporting a wooden sign are replaced, this is not deemed to be part of the "normal maintenance or repair" of the sign. Id. § 3.08. At issue in this appeal is the definition of the word "replace."

         ¶ 2 A sign owned by the plaintiff, Dusty's Outdoor Media, LLC, was blown over in a windstorm. The plaintiff had its sign repaired by returning it to an upright position in its original location. The defendant, the Department of Transportation (IDOT), determined that, in doing so, the plaintiff "replaced" 100% of the upright posts supporting the sign. IDOT therefore determined that the sign was no longer permitted to remain in place under the Act and demanded that the plaintiff remove the sign within 30 days. The plaintiff filed a petition seeking a writ of mandamus and relief related to eminent domain. It argued that because it used the original uprights, it did not "replace" more than 60% of the uprights. The trial court agreed with the plaintiff and granted summary judgment in its favor. IDOT appeals, arguing that (1) the court erred in interpreting the word "replace" to require the use of new materials, (2) as such, the court erred in finding that the plaintiff did no more than perform "normal maintenance or repair" of the sign, and (3) the court erred in granting summary judgment to the plaintiff on its request for relief related to eminent domain because no taking occurred. We affirm in part and reverse in part.

         ¶ 3 The plaintiff owns and leases outdoor signs for advertising. Placement of such signs along highways is regulated by the Act. The Act provides that new signs may not be erected without first obtaining a permit. Id. § 8. However, signs that were in existence before the effective date of the Act may remain in place. Such signs must be registered with IDOT. Owners of signs registered under this provision are issued registration tags for their signs, which must be displayed on the structure of the sign. Id. These registration tags are known as "red tags." The sign at issue in this appeal was in place prior to the effective date of the Act. IDOT issued a "red tag" to the plaintiff for the sign. The sign is located east of Vandalia, Illinois, along Interstate 70. IDOT has determined that no new signs are permissible in that vicinity.

         ¶ 4 On February 28, 2011, the sign blew down in a windstorm. Late in March, the plaintiff repaired the billboard by placing it upright in its original location. The original upright posts were used. Although the plaintiff added bracing to the uprights for safety reasons, the sign was not otherwise enhanced or altered from its condition prior to the storm.

         ¶ 5 On March 29, 2011, IDOT issued a notice informing the plaintiff that its billboard was "irreparable" without the replacement of more than 60% of the original uprights. The notice informed the plaintiff that its red tag permit was therefore no longer valid. We note that it is not clear from the record precisely when the sign was placed upright; however, IDOT's initial notice appears to have been based on an observation of the sign before this occurred. On April 1, the plaintiffs attorney responded to IDOT's notice in a letter, explaining that the sign was repaired without replacing any of the original uprights. On April 8, IDOT sent a letter to the plaintiff explaining that it did not differentiate between new and original uprights in determining whether the uprights have been "replaced." It is not clear whether any additional correspondence transpired between the parties over the next two years. On April 23, 2013, IDOT issued a notice of unlawful sign to the plaintiff. The notice stated that the billboard was illegal and gave the plaintiff 30 days to remove it.

         ¶ 6 On May 13, 2013, the plaintiff filed the three-count complaint at issue in this appeal. Count I requested a declaration that IDOT's actions constituted a "taking" for which just compensation was required. Count II requested a writ of mandamus directing IDOT to reinstate the plaintiffs rights under its red tag permit and to refrain from engaging in an unconstitutional taking. Count III requested a preliminary injunction. On the same day, the plaintiff filed a petition for an emergency injunction, which the court granted. IDOT filed a motion to dismiss the plaintiffs complaint, which the court denied. In October 2013, the court entered a preliminary injunction with the agreement of both parties.

         ¶ 7 In October 2017, both parties filed motions for summary judgment. IDOT argued in its motion that the plaintiff was not entitled to the relief it requested because the sign was not legal under the Act. The plaintiff argued in its motion that it did not replace 60% or more of the uprights and that, as such, it had merely maintained its sign within the meaning of the applicable statutes. Attached to the plaintiff's motion was the affidavit of Dick Rhodes, the plaintiff's owner and manager. Rhodes attested that the repairs performed on the sign in March 2011 involved placing the original sign upright in its original location and bracing the support posts. He further attested that nothing was done to change the nature of the sign.

         ¶ 8 On April 4, 2018, the court entered a written order. It framed the issues before it as (1)"what is the exact meaning of 'replacing' under the Highway Advertising Act of 1971" and (2)what constitutes "normal maintenance and repairs of a wooden billboard." In addressing the first of these questions, the court found that the "plain and ordinary" meaning of the word "replace," as used in the applicable statute, means replacing 60% or more of the original posts with new material. Applying this definition, the court found that the plaintiff did not replace 60% or more of the original uprights. Addressing the second question, the court found that placing the original sign in its original location after it was knocked down by wind constitutes normal maintenance or repair pursuant to this court's holding in Department of Transportation v. Keller Development Corp., 122 Ill.App.3d 1038 (1984). The court therefore granted the plaintiff's motion for summary judgment and denied IDOT's motion. This appeal followed.

         ¶ 9 The issue before us in this case is a question of statutory construction. Our primary objective is to ascertain and effectuate the intent of the legislature. The best indicator of legislative intent is the express statutory language. Nowak v. City of Country Club Hills, 2011 IL 111838, ¶ 11. Words used in a statute should be given their plain and ordinary meaning, unless the legislature has provided a statutory definition. Alvarez v. Pappas,229 Ill.2d 217, 228 (2008). If a statute is clear and ...

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