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
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
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
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
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
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