City of Oakbrook Terrace v. Suburban Bank and Trust Co.

JUSTICE CALLUM, dissenting:

Because I disagree with my colleagues that the City’s ordinance infringes on the administration of the judiciary and thus does not pertain to its local government and affairs and because I find merit in the remainder of the City’s home-rule-powers argument and its takings argument, I respectfully dissent.

I. HOME RULE POWERS

A. Local Government and Affairs

I disagree with the majority’s conclusion that elimination of the remedy of just compensation infringes on the judiciary’s domain. “[T]he mere fact that an ordinance defines notice procedures, the duties of the parties, and the remedies available to the parties does not interfere with the court system.” Oak Park Trust & Savings Bank v. Village of Mount Prospect, 181 Ill. App. 3d 10, 23 (1989) (ordinance setting forth additional remedies that a court may employ does not impermissibly dictate court procedures).

Our supreme court has addressed on two occasions the validity of a home rule ordinance prescribing remedies available in court proceedings. In Yehling, the court took issue with Carbondale’s method of enforcing its eminent domain ordinance. The Carbondale ordinance’s enforcement provisions ordered the trial court to fix a hearing date within five days of the filing of a takings motion. Further, it ordered the trial court to fix a hearing date after a petitioner deposited money with the county treasurer in the amount preliminarily found by the court to constitute just compensation. The Yehling court found that “in imposing duties upon county and judicial officials and prescribing the order of certain court proceedings, the ordinance is no longer local in character.” Yehling, 96 Ill. 2d at 501. It continued:

“In the instant case, the ordinance purports to define the notice procedures of the courts, duties of parties in court, and specific remedies available in court proceedings. In doing so the city is attempting to set forth rules for the State judiciary to follow. This exercise of power is clearly a matter of State concern, and not a local function pertaining to a home rule unit’s government and affairs.” (Emphasis added.) Yehling, 96 Ill. 2d at 501.

In City of Evanston v. Create, Inc., 85 Ill. 2d 101 (1985), which was cited with approval by the Yehling court (Yehling, 96 Ill. 2d at 501), the supreme court held that the fact that the ordinance in question defined notice procedures, the duties of the parties, and the remedies available did not interfere with the court system, because courts are regularly called upon to enforce or interpret municipal ordinances. Create, 85 Ill. 2d at 116 . In Create, Evanston, a home rule unit of government, enacted a landlord and tenant ordinance that imposed certain conditions upon rental lease agreements negotiated between landlords and tenants. It further set forth landlords’ and tenants’ rights, duties, and remedies. Addressing the ordinance’s interplay with the unified state judiciary system, the court distinguished Ampersand, 61 Ill. 2d at 542-43, a case involving a Chicago ordinance that imposed a $2 filing fee in civil cases to support a county law library, finding that the Evanston ordinance placed no condition or barrier upon a citizen’s access to the state’s court system. Create, 85 Ill. 2d at 116 . The court further found:

“The [o]rdinance does not prevent either landlord or tenant from seeking relief in the courts of the State. That fact that the provisions of the ordinance here in question defines [sic] notice procedures, duties of the parties, and remedies available does not interfere with our court system. Courts are regularly called upon to enforce or interpret municipal ordinances.” Create, 85 Ill. 2d at 116 .

I believe that Yehling and Create instruct that enactment of an ordinance prescribing additional remedies available in court proceedings will be held to be an invalid exercise of home rule powers if it prescribes the order of court procedures and imposes duties on court officials (as in Yehling) or if it restricts parties’ access to the court system (as in Create). Here, the City’s ordinance does not run afoul of either prohibition.

The majority asserts that, because the ordinance conflicts with state law (i.e., eliminates the remedy of just compensation), it is thus an invalid exercise of home rule power. This assertion is unfounded because, as I address below, the majority’s test conflicts with supreme court case law.

B. Specific Action

Having determined that the City, as a home rule unit, has the power to regulate outdoor advertising signs, I next turn to the question whether the Act preempts the authority of a home rule unit to regulate such signs. The City contends that, if the legislature desired to preempt home rule municipalities from enacting and enforcing regulations requiring the alteration or removal of signs without monetary compensation or to declare the provisions of the Act to be under exclusive state control, the legislature had an obligation to specifically state its intended preemption or exclusivity. According to the City, because there is no showing of any intent to limit such authority in the Code, the Act, or the 1993 amendment, then its constitutional home rule powers permit it to exercise concurrent jurisdiction over the elimination of nonconforming, outdoor advertising signs through its sign regulations.

Viacom argues that the entire Code and Act are matters primarily of statewide concern and therefore beyond a municipality’s home rule powers. According to Viacom, a provision in the Code is not required to specifically state that it applies to home rule municipalities in order to have uniform statewide application. J.T. Land Group, the Robinette Trust, and the Robinette Estate contend that the legislature and judiciary have long been actively involved in establishing the right to and defining and analyzing the value of just compensation under the Act. In its brief, Paramount argues that, if the legislature had intended to exclude home rule municipalities from the Act’s reach, it would have expressly done so and would have selected a more precise term than “any municipality.”

The legislature can restrict the concurrent exercise of a home rule unit’s power by enacting a law that specifically limits such power. Scadron, 153 Ill. 2d at 187-88. However, unless a state law specifically states that a home rule unit’s power is limited, then the home rule unit’s power to act concurrently with the state cannot be considered restricted. Scadron, 153 Ill. 2d at 188. The majority’s reliance on the Fourth District’s Normal decision for the proposition that the proper inquiry in these cases is whether an ordinance conflicts with or runs contraiy to state law is misplaced. Our supreme court has instructed that, to limit home rule powers, the legislature must specifically say the “statute constitutes a limitation on the power of home rule units to enact ordinances that are contrary to or inconsistent with the statute.” (Emphasis added.) City of Chicago v. Roman, 184 Ill. 2d 504, 520 (1998); see also City of Champaign v. Sides, 349 Ill. App. 3d 293, 299 (2004) (a limitation on a home rule unit’s power, even only to the extent the ordinance is inconsistent with a state statute, must be specifically stated by the legislature). “Comprehensive” legislation is insufficient to declare the State’s exercise of power to be exclusive. Roman, 184 Ill. 2d at 517 ; see also American Health Care Providers, Inc. v. County of Cook, 265 Ill. App. 3d 919, 928 (1994) (“[t]he General Assembly cannot express an intent to exercise exclusive control over a subject through coincidental comprehensive regulation”).

The supreme court has decided that a general reference to municipalities in a state statute is not sufficient to preempt home rule powers. In Scadron, the supreme court held that the legislature did not specifically express its intention to limit a home rule unit’s concurrent power to regulate advertising signs where the statute in question, which regulated outdoor advertising near federally funded highways, referred simply to municipal zoning authorities. Scadron, 153 Ill. 2d at 188. The statutory provision in that case read, in relevant part: “ ‘In zoned commercial and industrial areas, whenever a State, county or municipal zoning authority has adopted laws or ordinances, which include regulations with respect to the size, lighting and spacing of signs *** the provisions of Section 6 [containing size, light, and spacing limitations] shall not apply to the erection of signs in such areas.’ (Emphasis added.) Ill. Rev. Stat. 1987, ch. 121, par. 507 [(now 225 ILCS 440/7 (West 2002))].” Scadron, 153 Ill. 2d at 172. Given this language, the issue in the case was not whether the legislature had specifically declared that the State had exclusive power to regulate signs — the quoted section gave municipalities the power to regulate signs — but whether it had specifically limited home rule units’ power to concurrently regulate outdoor advertising signs along with the state. The court was not persuaded that the statutory language was sufficiently specific to include home rule municipalities. Noting that “[t]he legislature is perfectly capable of being specific when it wants to be” (Scadron, 153 Ill. 2d at 188), the court held that the statute did not preempt the authority of home rule municipalities to regulate— including via more restrictive regulations that included a total ban on signs under certain circumstances — outdoor advertising signs in areas subject to the statutory provision. Scadron, 153 Ill. 2d at 188-89.

As Scadron instructs, a general reference to a municipality, which perhaps in other contexts can be read to encompass all types of municipalities, does not satisfy the specificity requirement of section 6(i) of the constitution. Accordingly, by referring to “any municipality,” I conclude that the legislature did not specify that section 7 — 101 of the Act applies to home rule municipalities.

C. Proper Relationship

I turn next to the relationship between the City’s ordinance and the Act. Because the legislature, as I determined above, has not specifically limited the power of home rule units when ordinances have the effect of taking or damaging private property, defendants are effectively asking this court to curtail the City’s power by invalidating its sign ordinance. See Scadron, 153 Ill. 2d at 190. Our supreme court has cautioned, however, “ ‘if the constitutional design is to be respected, the courts should step in to compensate for legislative inaction or oversight only in the clearest cases of oppression, injustice, or interference by local ordinances with vital state policies.’ ” (Emphasis omitted.) Scadron, 153 Ill. 2d at 190, quoting D. Baum, A Tentative Survey of Illinois Home Rule (Part I): Powers & Limitations, 1972 U. Ill. L.F. 137, 157.

The City relies on City of Wheaton v. Sandberg, 215 Ill. App. 3d 220 (1991). In that case, the city of Wheaton enacted an ordinance that permitted it to determine whether a parcel of land was in need of redevelopment and, if so, to designate the area a redevelopment area and acquire the land by gift, purchase, or condemnation for the purpose of redevelopment. This court applied the three-part test set forth above. Relying on Yehling, we first held that the city’s exercise of eminent domain power was a valid home rule power pertaining to local government and affairs. Sandberg, 215 Ill. App. 3d at 224 . After determining that the legislature did not specifically limit or preempt this power under the Commercial Renewal and Redevelopment Areas Act of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 11— 74.2 — 1 et seq. (now 65 ILCS 5/11 — 74.2—1 et seq. (West 2002))), we turned to the determination of the proper relationship between the ordinance and the state statute; specifically, whether the statute, which set minimum requirements for a finding of blight, created a scheme of uniform standards by which even home rule units must abide. Finding that the ordinance contained a broader definition of a blighted or redevelopment area than the statute and distinguishing cases that held that constitutional convention committee comments concerning environmental legislation showed an intent that the legislature provide leadership in that area, we held that there was no evidence indicating the necessity of uniform standards under the statute and we did not perceive an overriding policy interest on the state’s part in keeping the standards uniform. Sandberg, 215 Ill. App. 3d at 226 .

The City argues that there is no overriding policy interest in having uniform standards for compensating owners for the loss of nonconforming signs, because sign regulation varies from municipality to municipality. I agree. As the Scadron court noted, “[mjunicipalities have traditionally played an important role in regulating outdoor advertising signs.” Scadron, 153 Ill. 2d at 176. Here, defendants have not identified any statewide interest that needs to be protected, nor have they identified a problem with commercial advertising signs that necessitates adoption of uniform state standards.

Having determined that section 7 — 101 does not apply to a home rule entity, I do not reach additional arguments addressed by the parties that are premised on the application of section 7 — 101.

II. UNLAWFUL TAKING

Next, I address the City’s contention that enforcement of its ordinance does not result in a taking without just compensation. The fifth amendment to the United States Constitution provides in relevant part that “private property [shall not] be taken for public use, without just compensation.” U.S. Const., amend. V

The parties characterize their dispute as an inverse condemnation claim. As distinguished from eminent domain, inverse condemnation describes the manner in which a landowner recovers compensation for a taking of its property when condemnation proceedings have not been instituted. Tim Thompson, Inc. v. Village of Hinsdale, 247 Ill. App. 3d 863, 884 (1993). A land-use regulation does not constitute a taking if it substantially advances legitimate state interests and does not deny any owner economically viable use of its land. National Advertising Co. v. Village of Downers Grove, 204 Ill. App. 3d 499, 512 (1990). Although property may be regulated to a certain extent, if the regulation “ ‘goes too far,’ ” it will be recognized as a taking. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014 , 120 L. Ed. 2d 798, 812 , 112 S. Ct. 2886, 2893 (1992), quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 , 67 L. Ed. 322, 326 , 43 S. Ct. 158, 160 (1922).

Relying on the ordinance’s stated purpose, the City argues that the ordinance advances legitimate governmental interests in the public health, safety, and welfare by securing adequate natural light, limiting and controlling environmental pollution, conserving the taxable value of land and buildings, enhancing aesthetic values throughout the City, promoting traffic safety, and avoiding or lessening congestion in the public streets.

Paramount argues that the City did not perform any independent evaluation to test the validity of its ordinance restrictions and asserts that the City offered no evidence to support a link between traffic safety and smaller advertising signs. Even more troubling to Paramount is the fact that the restrictions are premised on certain aesthetic judgments, which it contends are necessarily subjective and should be carefully scrutinized to determine if they are only a public rationalization of an impermissible purpose.

Billboards are substantial hazards to traffic safety. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 509 , 69 L. Ed. 2d 800, 816 , 101 S. Ct. 2882, 2893 (1981). I disagree with Paramount’s assertion that the City had a duty to conduct an independent study to assess whether there exists a link between traffic safety and smaller advertising signs. Paramount has not cited to any authority for that proposition. Indeed, safety is a long-standing concern, and cases upholding billboard regulations on this basis can be found as far back as the early 1900s. See Scadron, 153 Ill. 2d at 177.

The role of aesthetics in zoning is an element of the public health, safety, and welfare. See Metromedia, 453 U.S. at 510 , 69 L. Ed. 2d at 816 , 101 S. Ct. at 2893-94 (“[i]t is not speculative to recognize that billboards by their very nature, wherever located and however constructed, can be perceived as an ‘esthetic harm’ ”); City of Rolling Meadows v. National Advertising Co., 228 Ill. App. 3d 737, 746 (1991) (aesthetics and traffic safety are valid policy reasons for governmental regulation of outdoor signs); Dingeman Advertising, Inc. v. Village of Mt. Zion, 157 Ill. App. 3d 461, 464 (1987) (same); see also City of Belleville v. Kesler, 101 Ill. App. 3d 710, 714 (1981) (sign ordinance regulating size and location of advertising signs on the basis of enhancing community appearance as well as protecting public from injury due to potentially hazardous location of a sign held constitutional on ground that it was related to public welfare).

In National Advertising Co., this court affirmed summary judgment for the village, holding that the plaintiff, which leased property near a highway and which had applied for and was denied a permit and a variance to display an off-premises advertising sign, did not suffer a taking as a result of a village ordinance that restricted such signs to 20 feet in height and 200 square feet in area and where the plaintiffs sign exceeded these restrictions. National Advertising Co., 204 Ill. App. 3d at 512 . We determined that no taking resulted from the ordinance, because the ordinance advanced a legitimate governmental interest in traffic safety and aesthetics. National Advertising Co., 204 Ill. App. 3d at 512 . Noting that the plaintiff was a lessee, we further determined that there was no evidence that the property’s owner was denied economically viable use of his land and that the village had not interfered with the plaintiff’s legitimate investment-backed expectations because, at all times, the plaintiff had notice that its proposed sign violated the village’s ordinance. National Advertising Co., 204 Ill. App. 3d at 512 .

Here, Paramount has not specified what impermissible purpose the City had in passing the ordinance. Without a proper allegation of an ulterior motive, one cannot presume it exists. See Metromedia, 453 U.S. at 510 , 69 L. Ed. 2d at 817 , 101 S. Ct. at 2894 ; see also National Advertising Co., 204 Ill. App. 3d at 507 .

Paramount next argues that the City’s ordinance results in the taking of all economically viable use of Paramount’s property. It contends that, if the City is permitted to enforce its ordinance, the size and height of Paramount’s sign would be reduced to such a degree as to effectively make it worthless for commercial advertising purposes. Paramount relies on an affidavit by David L. Quas, its president. In his affidavit, Quas stated that he had personal knowledge of the facts surrounding the transaction. He further stated that the value of a billboard sign is derived from the number of people viewing the sign and its ability, via its location, size, and height, to be clearly seen by the public. The reduction in the size and height of signs contemplated by the City’s ordinance, according to Quas, “is below the industry standard for production of advertising signs.” In paragraph 6 of his affidavit, Quas further stated that, if the City were able to enforce its ordinance against Paramount, “the size and height of the sign would be reduced to such a degree as to effectively make it worthless for commercial advertising purposes.” In the next paragraph, he explained that the sign would not be “effectively visible to the public because it would be too small and too low” and, therefore, its advertising value and Paramount’s ability to obtain advertising “will be significantly diminished.” In paragraph 8, Quas stated that the aforementioned reductions would deprive Paramount of all the economically viable use of its interest in the sign.

Supreme Court Rule 191(a) provides that affidavits in support of or in opposition to a motion for summary judgment shall be made on the personal knowledge of the affiant and shall consist not of conclusions, but of facts admissible in evidence and shall affirmatively show that the affiant could testify competently thereto. 210 Ill. 2d R. 191(a). Affidavits in support of a motion for summary judgment are strictly construed and should leave no question as to the movant’s right to judgment. Weber v. Woods, 31 Ill. App. 3d 122, 130 (1975). A court does not take as true unrebutted affidavits, or portions thereof, that do not comply with Supreme Court Rule 191(a). Forrester v. Seven Seventeen HB St. Louis Redevelopment Corp., 336 Ill. App. 3d 572, 579 (2002).

I believe Quas’s affidavit is conclusory and does not allege sufficient facts to permit this court to resolve this issue in Paramount’s favor or to even raise a material factual issue precluding the grant of summary judgment. Initially, I note that Quas’s affidavit does not explain the nature and extent of his experience in the billboard advertising industry. Where an affidavit asserts an opinion, it must first qualify as expert testimony. Go-Tane Service Stations, Inc. v. Sharp, 78 Ill. App. 3d 785, 789 (1979). Further, Quas does not explain where the Paramount sign is located in relation to Route 83 and how a height reduction, for example, would specifically affect its visibility. Would the sign be less visible due to obstructions such as trees, buildings, or a fence, or would it be less visible, and thus less effective, solely because it is smaller and shorter? I find troubling Quas’s statement in paragraph 7 of his affidavit, wherein he asserts that the sign would “not be effectively visible” and thus its value would be “significantly diminished” because it would be “too small and too low.” The quoted phrases are conclusory. See, e.g., Greystone Hotel Co. v. City of New York, 13 F. Supp. 2d 524, 528 (S.D.N.Y. 1998) (analyzing “economically viable use” element, court found the phrase “barely making a profit” conclusory). Moreover, Quas does not provide any facts showing how much smaller and lower a sign complying with the ordinance would be as compared with the current sign, nor does he provide any facts linking signs of the size and height contemplated by the City’s ordinance to any specified diminished advertising value or ability to obtain advertisers. Under Rule 191(a), an affidavit must set forth with particularity the facts upon which the claim is based. Go-Tane Service Stations, Inc., 78 Ill. App. 3d at 789 (even though affiant’s 25 years’ banking experience might have indicated he was qualified to express an opinion regarding markings on the back of checks, striking of affidavit was upheld on the basis that affidavit did not state specific facts that formed the basis of affiant’s conclusion regarding the markings).

I believe that enforcement of the City’s ordinance would not result in an unlawful taking.

III. CONCLUSION

For the reasons stated above, I would reverse the trial court’s order and remand the cause. This would result in the grant of summary judgment to the City on both the home rule powers and takings issues.