Opposition Brief — National Advertising Co. v. Village of Downers Grove

— FIL ]

oe JUN

No. 90-1743 5 1991

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

NATIONAL ADVERTISING COMPANY, a Delaware

Corporation, subsidiary of

Minnesota Mining and Manufacturing,

a Delaware Corporation,

Petitioner.

Vs.

THE VILLAGE OF DOWNERS GROVE,

an Illinois municipal corporation,

} Respondent.

Petition For Writ Of Certiorari To The Appellate

Court Of Illinois, Second Judicial District

RESPONDENT’S BRIEF IN OPPOSITION

BARBARA J. GOSSELAR

Counsel of Record

KUBIESA & POWER, LTD.

5757 South Cass Avenue

Westmont, Illinois 60559

(708) 969-1040

Attorneys for Respondent

Midwest Law Printing Co., Chicago 60611, (212) 321-0220

QUESTIONS PRESENTED

. Whether the respondent’s sign ordinance, which allows

noncommercial messages on all signs, fully protects

petitioner’s rights under the First Amendment to the

Federal Constitution.

Whether the respondent’s sign ordinance bears the

necessary rational relationship to its primary goals of

aesthetics and safety.

Whether the respondent’s reasonable regulation of

petitioner’s signs constitutes a taking of property for

which compensation is required.

Whether the respondent’s amendment of its sign or-

dinance to allow noncommercial messages on any per-

mitted sign impaired petitioner’s contract or due pro-

cess rights.

TABLE OF CONTENTS

QUESTIONS PRESENTED ..................

TABLE OF AUTHORITIES .................

FOE. <0 ses nd ke dusbivanesgsedessekusone

STATEMENT OF THE CASE ...............

SUMMARY OF ARGUMENT ................

ARGUMENT FOR DENYING

THE PETITION:

I.

THE RESPONDENT’S SIGN ORDINANCE

ALLOWS NONCOMMERCIAL COPY OF ANY

NATURE ON ANY OTHERWISE PERMITTED

ETE 6c cccnevesceeseadisnevedadeunaenes

II.

THE RESPONDENT’S SIGN ORDINANCE

FULLY PROTECTS THE FIRST AMEND.

MENT RIGHTS OF THE PETITIONER AND

ED AVR c0eteesuseisseteseces

A. It Is Constitutional To Strictly Regulate

Off-Premises Commercial Signs So Long As

Noncommercial Messages Are Permitted

Everywhere That Commercial Messages

ROG Be io kse dexsaccevesasiess.:

B. The Respondent’s Sign Ordinance Passes

The Test For A Valid Time, Place And

Manner Restriction ........ccccccccee

10

12

12

14

C. The Terms Of Respondent’s Sign Ordi-

nance Are Sufficiently Clear To Advise

Petitioner And Respondent’s Officials As

To What Signs Are Permitted ....... 15

III.

THE RESPONDENT’S REASONABLE REGU-

LATION OF PETITIONER’S SIGNS DOES NOT

CONSTITUTE A TAKING OF PROPERTY FOR

WHICH COMPENSATION IS REQUIRED ... 16

A. The Respondent’s Sign Ordinance Is Rea-

sonably Related To The Public Health,

eg ee 16

B. The Regulations Of The Respondent’s

Sign Ordinance Do Not Constitute A Tak-

ing Of The Petitioner’s Property Which

Requires Compensation .............. 19

IV.

THE RESPONDENT’S AMENDMENT OF ITS

SIGN ORDINANCE TO ALLOW NONCOM.-

MERCIAL MESSAGES ON ANY PERMITTED

SIGN DID NOT IMPAIR EITHER THE PETI.-

TIONER’S CONTRACT OR DUE PROCESS

MURS CStU seadascsebacnsoressevrs 21

ee 24

ere e Gag b bbe debs 6 0505.50 80a'ere App. 1

iV

TABLE OF AUTHORITIES

Cases PAGE

A.E. Brewster v. City of Dallas, 703 F.Supp. 1260

Pe: Ws EN Aceccnaddsarececenea 13, 17, 18, 19

Central Hudson Gas and Electric v. Public Service

Commission, 447 U.S. 557 (1980) .......... 15

City of Champaign v. Kroger Co., 88 Ill.App.3d

498, 410 N.E.2d 661 (4th Dist. 1980) ....... 17

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S.

ge, PEE EET UPOTEET TTT TTT ITT CeTTe 21

Georgia Outdoor Advertising, Inc. v. City of Waynes-

ville, 833 F.2d 43 (4th Cir. 1987) .......... 13

Jackson v. City Council of the City of Charlottes-

ville, Virginia, 659 F.Supp. 470 (W.D. Vir. 1987) .. 19

Krych v. Village of Burr Ridge, 111 Ill.App.3d 461,

444 N.E.2d 229 (2d Dist. 1982) ............ 17

Lindsay v. City of San Antonio, 821 F.2d 1103 (5th

Cir. 1987), cert. denied, 484 U.S. 1010 (1988) .. 13

Major Media of the Southeast, Inc. v. City of

Raleigh, 621 F.Supp. 1446 (E.D.N.C. 1985),

affirmed, 792 F.2d 1269 (4th Cir. 1986), cert.

denied, 479 U.S. 1102 (1987) .............. 13

Major Media of the Southeast, Inc. v. City of

Raleigh, 792 F.2d 1269 (4th Cir. 1986), cert.

denied, 479 U.S. 1102 (1987) ........ 10, 15, 17, 19

McNulty v. Town of Indialantic, 727 F.Supp. 604

oS rrr rT er rr restr ee 20

Members of the City Council of the City of Los

Angeles v. Taxpayers for Vincent, 466 U.S. 789

Py civee boeuUc bis baceh ss ¥nsewnee ene eae 16

Metromedia, Inc. v. City of San Diego, 453 U.S.

| RE ree er ee re passim

Vv

Naegele Outdoor Advertising Inc. v. City of Dur-

ham, 844 F.2d 172 (4th Cir. 1988) ......... 18

National Advertising Co. v. Village of Downers

Grove, 166 Ill.App.3d 58, 519 N.E.2d 502, 116

Ill.Dee. 610 (2d Dist. 1988), cert. denied, 121

A DE EE SG 5 bb v5 coos unsenenesous 6, 20

National Advertising Co. v. Village of Downers

Grove, 204 Ill.App.3d 499, 561 N.E.2d 1300, 149

Ill. Dec. 604 (2d Dist. 1990) cert. denied, (1991) ..

OTT eee ee re ee eee Creer re 8, 21, 22

Penn Central Transportation Co. v. New York

oe 6B eee ee 20

Scadron v. City of Des Plaines, 734 F.Supp. 1434

oe A Be ee er eer er re 14

Rzadkowolski v. Village of Lake Orion, 845 F.2d

rere ree 14, 17

Village of Downers Grove v. Clark, 78 CH 422

(18th Jud. Cir. Ill. 1978) ...............06. 2

Village of Skokie v. Walton on Dempster, Inc., 119

Ill. App.3d 299, 456 N.E.2d 293 (1st Dist. 1983) . . 17

Wheeler v. Commissioner of Highways, 822 F.2d

586 (6th Cir. 1987), cert. denied, 484 U.S. 1007

PEE ee ee ee ee PoP er eee eee 14, 17

Other Authorities

Constitution of the United States,

ee I os ko bbw bodes 40 16s kena nire passim

The Illinois Highway Advertising Control Act of

1971, Illinois Revised Statutes, ch. 121, sec. 501

of ong. GIGS) CTACA’) occ ccscceccces 2, 4, 5, 6, 20

Interim Settlement Agreement entered January 16,

ica ask rere Pe OP rer Per 4,9, 19, 22, 23

1983 Downers Grove Zoning Ordinance .... 2, 4, 6, 21, 23

1987 Amendment to Downers Grove

EE SIE 5 hk 53 cess ees caciueeses passim

No. 90-1743

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

NATIONAL ADVERTISING COMPANY, a Delaware

Corporation, subsidiary of

Minnesota Mining and Manufacturing,

a Delaware Corporation,

Petitioner,

Vs.

THE VILLAGE OF DOWNERS GROVE,

an Illinois municipal corporation,

Respondent.

Petition For Writ Of Certiorari To The Appellate

~ Court Of Illinois, Second Judicial, District

RESPONDENT’S BRIEF IN OPPOSITION

, PRAYER

Respondent, Village of Downers Grove, respectfully prays

that a Writ of Certiorari to review the judgment of the

Appellate Court of Illinois be denied.

caliuns

STATEMENT OF THE CASE

Respondent has enacted a Comprehensive Zoning Ordi-

nance which governs the use and improvement of proper-

ty in the Village of Downers Grove, Illinois (““Downers

Grove’’). Included in such Zoning Ordinance is Article IX

which, together with sign definitions set forth in Article

III, governs the erection of signs in Downers Grove, and

is referred to as the Downers Grove Sign Ordinance (“Sign

Ordinance’’).

Prior to 1983, the Sign Ordinance prohibited off-premises

signs. (R-1165) Respondent amended the Sign Ordinance in

response to a decision of the 18th Judicial Circuit Court of

Illinois in Village of Downers Grove v. Clark, 78 CH 422

(18th Jud. Cir., Ill. 1978), which held that a prohibition of

off-premises signs was preempted by the Illinois Highway

Advertising Control Act of 1971 (/ll.Rev.Stat., ch. 121, sec.

501 et seg. (1989)) (““HACA”). (R-1165-1169) In 1983, when

petitioner applied for permits for four (4) off-premises or

advertising signs, the Sign Ordinance in effect permitted

off-premises signs in the respondent’s least restrictive zon-

ing district, subject to certain size and height restrictions.

Petitioner’s permits were denied because its proposed signs

exceeded the size and height restrictions of the ordinance,

and in the case of one application, because off-premises

or advertising signs were not allowed in the zone in which

the sign was to be located. In this respect, the petitioner

is inaccurate in representing to this Court that its pro-

posed signs complied with “‘all lawful requirements of the

respondent’s ordinance.”’ (Petition at 7) Such a contention

is totally refuted by the petitioner’s failure to comply with

size restrictions upheld by both the trial and appellate

courts below as lawful, reasonable and valid. (R-1467-1471)

=

Though the Sign Ordinance has been amended from time

to time, at all times relevant to this case the following

restrictions have been applicable to petitioner’s proposed

signs:

a) Advertising signs are permitted in the “B-3

General Services and Highway Business District”,

and in the “M-1 Light Manufacturing District” if the

subject property fronts on Ogden Avenue in Downers

Grove. (R-98; R-34, 35)

b) Advertising signs are limited in size to 200 square

feet in face area. (R-98; R-34)

c) All freestanding signs in business districts,

whether on-premises or advertising signs, are lim-

ited to 20 feet in height. (R-96; R-33)

d) The total allowable surface area for all on-

premises and advertising signs on a lot is deter-

mined by the lot frontage. The total area of signs

permitted on a zoning lot in the zones where adver-

tising signs are permitted is calculated on the basis

of 2 square feet of sign area per foot of lot frontage

on all adjacent streets, alleys or other public ways.

(R-97-98; R-34-35)

e) There are numerous locations in Downers Grove

which are properly zoned for billboards, including three

of the four locations where petitioner sought to erect

such signs. These locations provide numerous oppor-

tunities for the presentation of both commercial and

noncommercial messages so long as the size, height,

and other zoning restrictions are met. (R-39-40)

At the time of the petitioner’s application for permits

for its advertising signs, content of signs was restricted

to messages related to the business, product or activity

—

available or conducted on the zoning lot. In addition, ad-

vertising signs were allowed in the B-3 zone and on cer-

tain properties in the M-1 zone, and political campaign

signs were permitted everywhere. (R-96-98) Contrary to

the petitioner’s contention, permitted on-premises signs

were not limited solely to business identification. Noncom-

mercial messages related to the business or activity on

the lot and political messages were also permitted on all

on-premises signs. (R-97-98) Further, advertising signs could

display any message of a commercial or noncormmercial

nature. The respondent argued below that the Sign Ordi-

nance in effect in 1983 was constitutional in that it treated

commercial and noncommercial speech the same, and has

never conceded that such ordinance was constitutionally

defective. (R-368-371)

Because the petitioner alleged that it would be damaged

for every month it was not permitted to erect its signs, in

1984 the parties executed an Interim Settlement Agreement

to mitigate such damages. (R-377-384) A complete copy of

the Interim Settlement Agreement is attached hereto as

Appendix 1. It is apparent from the preambles to the In-

terim Settlement Agreement that settlement negotiations

were predicated primarily on the parties’ dispute over the

effect of HACA on the applicability of the respondent’s sign

restrictions to the petitioner’s proposed signs, rather than

on the constitutional challenges raised by the petitioner.

By the terms of Sections 1 and 3 of the Interim Settle-

ment Agreement, which was entered by the Court on Jan-

uary 16, 1985, the petitioner was permitted to erect three

of its proposed signs, with the understanding that if the

respondent successfully defended against the petitioner’s

challenge to the sign restrictions, the signs would be re-

moved. (R-378-381) Section 4 of the Agreement specifical-

ly contemplated that the petitioner could be required to

=

modify its signs to conform to any amendment which the

respondent might enact in response to the courts’ deter.

mination. (R-381) Finally, Section 5 of the Agreement pre-

served all the respondent’s rights and defenses with respect

to the validity of the ordinances involved in the litigation.

(R-381, 382) The respondent has contended that an amend-

ment during the pendency of the litigation, to clarify the

intent of the Sign Ordinance and assure its constitutional-

ity, was not precluded by the agreement and could isot

prejudice the petitioner in any way.

The petitioner’s Third Amended Complaint filed in 1986

contained four counts. (R-969-992) Count I sought adminis-

trative review of the denial by the Downers Grove Zoning

Board of Appeals of a variation to permit the erection of

a sign proposed for one of the proposed sign sites. Count

II challenged the Sign Ordinance as preempted by HACA.

Count III alleged that the Sign Ordinance violated the

petitioner’s First Amendment rights, and Count IV chal-

lenged the restrictions of the Sign Ordinance as unreason-

able and constituting a taking of property without just

compensation.

In 1986, the trial court ruled in favor of the petitioner

on cross-motions for summary judgment as to Count II of

the complaint. (R-432) The result of the court’s ruling on

Count II was to eliminate altogether any local authority

to restrict signage in any manner which was more strin-

gent than the regulations established under HACA. As

a result, the respondent requested that the court certify

its decision for interlocutory appeal. (R-432) The trial court

concurred with the respondent that if its decision was up-

held on appeal, any of the other challenges to the sign

ordinance which were alleged in the petitioner’s complaint

would have been unnecessary, and the respondent would

have been compelled to permit the petitioner’s signs based

on the maximum sizes established in HACA. (2-434-435)

a =

The Second District Appellate Court reversed the trial

court decision on Count II in National Advertising Com-

pany v. Village of Downers Grove, 166 Ill.App.3d 58, 519

N.E.2d 502, 116 Ill.Dec. 610 (2d Dist. 1988), cert. denied,

121 Ill.2d 572 (1988), holding that the respondent’s strict

local sign regulation (as opposed to a total prohibition of

signs) was not preempted by HACA. Based on this hold-

ing, the petitioner’s signs were not permitted either under

the Sign Ordinance or under HACA which allowed the

respondent’s sign restrictions.

Though the respondent had contended that the Sign

Ordinance in effect in 1983 was constitutional in that it

treated commercial and noncommercial speech the same

(R-368-371), in 1987, during the appeal on Count II of the

petitioner’s complaint, the respondent amended its Sign

Ordinance to clarify its intent that commercial speech was

not to be favored over noncommercial speech, and that

noncommercial messages of any nature were to be allowed

on any otherwise permitted sign in any zoning district in

Downers Grove (see App. D to Petition for Certiorari).

The Sign Ordinance was amended in response to devel-

opments in the case law and in hopes of bolstering the

respondent’s First Amendment argument in another sign

case. It was hoped that the amendment would render the

plaintiff's First Amendment claim moot, and in fact, the

plaintiff in that case dropped its First Amendment claim

following adoption of the amendment. (R-795-796)

On remand to the trial court following the appellate

court’s reversal of Count II, the parties filed cross mo-

tions for summary judgment as to the petitioner’s First

Amendment challenge in Count III of the Third Amended

Complaint. (R-12-41; R-175-274) On April 10, 1989, the trial

court denied both parties’ motions, ard ruled that the Sign

Ordinance, as amended in 1987, would apply to Count III.

a

(R-652) Thereafter, the petitioner filed a Fourth Amended

Complaint, adding a challenge to the Sign Ordinance in

effect in 1987 as part of its First Amendment challenge

in Count III. (R-681-700) The respondent again moved for

summary judgment, this time as to Counts III and IV

of the petitioner’s complaint. (R-831-862) The respondent

filed affidavits in support of its motion to show that there

were numerous locations zoned for advertising signs in

Downers Grove, and to clarify the intent of the amend-

ment made to the Sign Ordinance in 1987, that noncom-

mercial signs of whatever nature should be permitted

everywhere. (R-852-862; R-795-796) The respondent also

moved to dismiss Count I, which sought administrative

review of the Downers Grove Zoning Board of Appeal’s

denial of a variation from the sign regulations. (R-735-736)

On September 7, 1989, the trial court granted the re-

spondent’s motion for summary judgment as to Counts

III and IV and denied its motion to dismiss Count I.

(R-1356) Having considered the petitioner’s First Amend-

ment and due process challenges, the court found the 1987

ordinance valid. It is clear from the total record that the

trial court adopted the respondent’s arguments in support

of its motion. (R-1544-1545) On November 14, 1989, the

trial court ruled in favor of the respondent on the merits

of the petitioner’s challenge to the administrative action

of the Downers Grove Zoning Board of Appeals in deny-

ing a variation for one of the petitioner’s signs. (R-1441)

On October 10, 1990, the Second District Appellate Court

affirmed the trial court’s ruling in all respects, and on

February 6, 1991, the Illinois Supreme Court denied the

petitioner’s request for leave to appeal.

sellin

SUMMARY OF ARGUMENT

The petitioner has stated no compelling reasons what-

soever for this Court’s exercise of its discretion to hear

its appeal. The question of sign regulation under both the

First Amendment and the due process clause is well set-

tled, and this Court has denied certiorari in several similar

cases interpreting its decision in Metromedia Inc. v. City

of San Diego, 453 U.S. 490 (1981). The respondent’s Sign

Ordinance, as amended in 1987, clearly protects the First

Amendment rights of the petitioner and its advertisers,

and is in complete accord with the decisions of this Court

and of the various lower federal courts.

The petitioner has incorrectly interpreted the respon-

dent’s Sign Ordinance, arguing that it precludes noncom-

mercial copy on signs in any zone except the B-3 zone

where advertising signs are allowed. This construction is

absurd in light of the 1987 amendment which clearly al-

lows noncommercial copy of any nature on any permitted

sign. Both the trial and appellate courts in Illinois resound-

ingly rejected the petitioner’s attempts to twist the mean-

ing of the Sign Ordinance, and recognized that its plain

language permits noncommercial speech on any otherwise

permitted sign. (R-1537); National Advertising Company v.

Village of Downers Grove, 204 Ill.App.3d 499, 561 N.E.2d

1300, 149 Ill.Dec. 604 at 609, 611 (2d Dist. 1990), cert. de-

nied (1991).

Having passed the strict scrutiny of the court’s First

Amendment analysis, the Sign Ordinance clearly meets

the necessary test which assures that the petitioner’s due

process rights are protected. Further, as a regulatory or-

dinance, rationally related to the legitimate governmental

=

purposes of traffic safety and aesthetics, the Sign Ordi-

nance does not constitute a taking of property for which

compensation is required.

Since the 1987 amendment actually assured protection

for the petitioner’s rights by adding a clear right to place

noncommercial messages on any sign permitted under the

ordinance, the petitioner’s argument that it has lost a

vested right under either the Sign Ordinance or the In-

terim Settlement Agreement is without merit. In fact, the

respondent’s amendment to its Sign Ordinance in 1987 is

completely consistent with the terms of the Interim Set-

tlement Agreement. The respondent never waived its on-

going right to amend its ordinances, and the amendment

itself benefitted the petitioner by giving it what it claimed

it wanted—its First Amendment right to place noncommer-

cial messages on any permitted sign. Because the Agree-

ment specifically contemplated the possibility of amend-

ments to the Sign Ordinance, and provided that such

amendments made after the litigation could be applied to

require the petitioner to modify its signs, the petitioner’s

situation is unchanged by the respondent’s beneficial

amendment during the litigation.

Though Rule 10 of this Court’s Rules is not intended

to control or fully measure this Court’s discretion to re-

view decisions, it does set forth the character of reasons

to be considered. Petitioner has not shown why this Court’s

discretion to consider its appeal is warranted, as the deci-

sion of the Second District Appellate Court of Illinois is

not in conflict with any decision of the Illinois Supreme

Court, with any Federal Court of Appeals’ decision, or

with any applicable decision of this Court. The petitioner

also fails to raise any important question of federal law

which has not already been settled by this Court. In its

Petition to this Court, the petitioner has merely reargued

—10—

the merits of its position, which were considered and re-

jected by the Second District Appellate Court of Illinois,

and which were rejected for further review by the Illinois

Supreme Court on Petition for Leave to Appeal. There

is simply no basis whatsoever for issuing a writ of cer-

tiorari in this case.

ARGUMENT FOR DENYING THE PETITION

z.

THE RESPONDENT’S SIGN ORDINANCE ALLOWS

NONCOMMERCIAL COPY OF ANY NATURE ON ANY

OTHERWISE PERMITTED SIGN.

The 1987 amendment to the respondent’s Sign Ordinance

made it absolutely clear that noncommercial speech of what-

ever nature is allowed on any permitted sign. The Sign

Ordinance created a specific exception from the restric-

tions which limit the content of signs to messages related

to the “business, product or activity available or conducted

on the zoning lot” to allow “noncommercial copy of any

nature”. Downers Grove Zoning Ordinance, Art. IX, secs.

4.1-4, 5.1-4, 5.2-4, 5.3-4, 5.4-4. This allowance for all non-

commercial messages is totally consistent with this Court’s

decision in Metromedia, Inc. v. City of San Diego, 453

U.S. 490 (1981). In fact, the respondent’s sign regulations

were patterned after the Raleigh sign regulations which

were upheld in Major Media of the Southeast, Inc. v. City

of Raleigh, 792 F.2d 1269 (4th Cir. 1986), cert. denied 479

U.S. 1102 (1987), following an analysis of the Metromedia

decision.

=

In an attempt to create a conflict with this Court’s deci-

sion in Metromedia Inc. v. City of San Diego, 453 U.S.

490 (1981), the petitioner has totally mischaracterized the

provisions of the Sign Ordinance, as amended in 1987. The

petitioner claims that the respondent’s Sign Ordinance

bars noncommercial speech in areas permitting commer-

cial speech. Such an interpretation is not only inconsistent

with the plain language of the 1987 amendment to the

respondent’s Sign Ordinance, but it defies logic to inter-

pret the language of the amendment in this fashion. The

1987 amendment substituted the following language for

the Sign Ordinance’s previous content restrictions:

Except for signs containing noncommercial copy of

any nature, content of signs shall be limited to the

business, product and activity available or conducted

on the zoning lot. (emphasis added).

Downers Grove Zoning Ordinance, Art. IX, secs. 5.1-4,

5.2-4, 5.4-4. The obvious purpose of this language was to

permit any noncommercial message on any allowable sign.

For this reason, both the trial and appellate courts found

the respondent’s Sign Ordinance to be totally consistent

with the holdings of Metromedia.

In Metromedia, this Court found the San Diego sign

regulations unconstitutional because they allowed on-prem-

ises commercial signs while prohibiting on-premises non-

commercial signs, thus offering greater protection to com-

mercial speech than to noncommercial speech. 453 U.S.

at 513. In addition, the San Diego ordinance distinguished

among noncommercial messages, permitting some as excep-

tions to the sign regulations while not permitting others.

The Court held this to be unlawful content-based discrim-

ination. 453 U.S. at 514.

The trial and appellate courts below were convinced that

the respondent’s Sign Ordinance is distinguishable from

= =

the defective San Diego ordinance in that it allows any

noncommercial message on any sign permitted under the

ordinance. This being the case, there can be no conflict

with either this Court’s ruling in Metromedia, or with any

of the decisions which have interpreted it.

THE RESPONDENT'S SIGN ORDINANCE FULLY PRO-

TECTS THE FIRST AMENDMENT RIGHTS OF THE

PETITIONER AND ITS ADVERTISERS.

There is no significant federal issue presented in this

case which has not already been fully addressed by this

Court. A sign ordinance which allows commercial on-prem-

ises and off-premises signs subject to reasonable size and

height restrictions, and which allows noncommercial copy

on any sign, fully protects the First Amendment rights

of the petitioner and its advertisers.

A. It Is Constitutional To Strictly Regulate Off-Premises

Commercial Signs So Long As Noncommercial Messages

Are Permitted Everywhere That Commercial Messages

Are Allowed.

Upon a careful analysis of this Court’s decision in Metro-

media Inc. v. City of San Diego, 453 U.S. 490 (1981), the

Second District Appellate Court below correctly held that

the respondent’s Sign Ordinance does not violate the First

Amendment. The appellate court concluded that the plu-

rality of this Court, joined by Justice Stevens in a par-

tial dissent, and Justice (now Chief Justice) Rehnquist and

former Chief Justice Burger in dissenting opinions, had

agreed that a city could bar off-site commercial signs in

the interests of traffic safety and aesthetics, while allow-

ing on-site signs. 453 U.S. at 507-512; 541, 553; 559-566;

—13—

569-570) The plurality in Metromedia also held that a bill-

board restriction violates the First Amendment if it bars

noncommercial advertising on a sign where commercial

advertising would be allowed. 453 U.S. at 513. The appel-

late court in this case upheld the respondent’s sign restric-

tions, because it found that the respondent’s Sign Ordi-

nance allows noncommercial copy on any signs otherwise

permitted. National Advertising Company v. Village of

Downers Grove, 204 Ill.App.3d 499, 561 N.E.2d 1300, 149

Ill.Dec. 604 at 609, 611 (2d Dist. 1990).

The appellate court also adopted the viewpoint of the

majority of this Court in Metromedia that traffic safety

and aesthetics provided ample justification for a ban on

off-site commercial billboards as a matter of law, that such

a ban directly advanced such governmental interests, and

that such a ban did not reach further than necessary to

achieve its goals. 453 U.S. at 512. This Court relied on

the ‘‘accumulated, common sense judgments of local law-

makers” in this regard. 453 U.S. at 509. Several courts

since Metromedia have declined to treat this issue as fac-

tual, and have deferred to the legislative body for its

determination of whether a regulation or prohibition of

off-premises signs is justified by traffic safety and aesthe-

tic concerns. Georgia Outdoor Advertising, Inc. v. City

of Waynesville, 833 F.2d 43, 46 (4th Cir. 1987); Lindsay

v. City of San Antonio, 821 F.2d 1103, 1108 n.8 (Sth Cir.

1987), cert. denied, 484 U.S. 1010 (1988); Major Media of

the Southeast, Inc. v. City of Raleigh, 621 F.Supp. 1446,

1451 (E.D.N.C. 1985), affirmed, 792 F.2d 1269 (4th Cir.

1986), cert. denied, 479 U.S. 1102 (1987); A.E. Brewster

v. City of Dallas, 703 F.Supp. 1260, 1265, n.5 (N.D. Tex.

1988).

Because the respondent’s Sign Ordinance allows noncom-

mercial messages of whatever nature on any permitted

afin

sign, the appellate court found it unnecessary to address

any First Amendment issue with respect to such mes-

sages, because it found the respondent’s Sign Ordinance

to be fully consistent with this Court’s holding in Metro-

media, Inc. v. City of San Diego, 453 U.S. 490 (1981).

B. The Respondent’s Sign Ordinance Passes The Test For

A Valid Time, Place And Manner Restriction.

The appellate court in the case at hand also upheld the

respondent’s Sign Ordinance as a valid, content-neutral

time, place and manner restriction. Finding that the on-

premises versus off-premises distinction is not content-

based simply because the determination of whether a sign

is permitted is a function of its message, the appellate

court applied the test for a time, place and manner restric-

tion to the respondent’s ordinance and found it to be valid.

See also Wheeler v. Commissioner of Highways, 822 F.2d

586, 590-96 (6th Cir. 1987), cert. denied, 484 U.S. 1007

(1988); Scadron v. City of DesPlaines, 734 F.Supp. 1434,

1447-48 (N.D.Ill. 1990); Rzadkowolski v. Village of Lake

Orion, 845 F.2d 6538, 654-55 (6th Cir. 1988). Because non-

commercial messages may be placed on otherwise per-

mitted signs throughout Downers Grove, it is clear that

ample alternative means of communication exist.

The appellate court correctly upheld the provisions of

the respondent’s Sign Ordinance and its decision is con-

sistent not only with this Court’s holding in Metromedia,

Inc. v. City of San Diego, 453 U.S. 490 (1981), but with

a myriad of cases which have interpreted and followed

the reasoning in Metromedia.

C. The Terms Of Respondent’s Sign Ordinance Are Suffi-

ciently Clear To Advise Petitioner And Respondent’s Of-

ficials As To What Signs Are Permitted.

The petitioner argues that the absence of any definition

of the terms “commercial” and “noncommercial” in respon-

dent’s Sign Ordinance renders the ordinance too vague

and allows respondent’s officials too much discretion to

decide which speech to allow and which to prohibit. The

Court in Major Media of the Southeast, Inc. v. City of

Raleigh, 792 F.2d 1269 (4th Cir., 1986), cert. denied, 479

U.S. 1102 (1987) determined that sufficient guidance as

to the appropriate meaning of these terms had been pro-

vided by this Court’s decisions, including Central Hudson

Gas & Electric v. Public Service Commission, 447 U.S.

557 (1980). The Fourth Circuit in Major Media held that

the basic definition of commercial speech as “‘expression

related solely to the economic interests of the speaker

and its audience” (emphasis added) (See Central Hudson

Gas & Electric v. Public Service Commission, 447 U.S.

at 561) gave sufficient guidance to Raleigh’s officials, and

that the infrequent possibility of a marginal question con-

cerning whether speech was commercial or noncommercial

in nature was not enough to justify a charge that the

Raleigh ordinance was too vague. 792 F.2d at 1272-73.

Similarly, in the case at hand, respondent’s officials are

provided ample guidance as to the interpretation of the

Sign Ordinance, and the risk of improper application is

negligible. This is especially true since it is clear from

the manner in which the respondent amended its Sign Or-

dinance in 1987 that its concern is not with the content

of the speech, but rather with controlling the size and

proliferation of signs in the interest of traffic safety and

aesthetics.

= =

Ill.

THE RESPONDENT’S REASONABLE REGULATION OF

PETITIONER’S SIGNS DOES NOT CONSTITUTE A TAK-

ING OF PROPERTY FOR WHICH COMPENSATION IS

REQUIRED.

The petitioner’s attempts to enlarge the due process

issues in this case to issues of national scope and interest

must certainly fail. The respondent’s sign restrictions are

rationally related to the public health, safety and welfare

and the reasonable regulations of the Sign Ordinance do

not constitute a taking.

A. The Respondent’s Sign Ordinance Is Reasonably Related

To The Public Health, Safety And Welfare.

The respondent has already argued, in the context of

the First Amendment issue involved in Count III of the

petitioner’s Fourth Amended Complaint, that strict sign

regulations substantially advance the public interest in

aesthetics and traffic safety, as a matter of law. Metro-

media, Inc. v. City of San Diego, 453 U.S. 490 (1981). To

the extent that the regulations of the Sign Ordinance

serve to reduce the overall visual clutter, even if in a

piecemeal fashion, they are reasonably related to these

valid goals. See Members of the City Council of the City

of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789

(1984).

If a total prohibition of off-premises commercial signs

is substantially related to the interests of the municipal-

ity in traffic safety and aesthetics under the strict scrutiny

of First Amendment analysis, no different result should

be reached under a due process analysis of the respon-

dent’s strict regulation of off-premises commercial signs.

Metromedia, Inc. v. City of San Diego, 453 U.S. 490 at

521, n.25 (1981).

-—

Contrary to the petitioner’s argument that the oniy rea-

sonable regulation is regulation consistent with the indus-

try’s standards, the Illinois courts have already found

much more stringent restrictions to be valid. See Village

of Skokie v. Walton on Dempster, Inc., 119 Ill.App.3d 299,

456 N.E.2d 293 (1st Dist. 1983); Krych v. Village of Burr

Ridge, 111 Ill.App.3d 461, 444 N.E.2d 229 (2d Dist. 1982).

Further, the respondent’s Sign Ordinance is entitled to

a presumption of validity. City of Champaign v. Kroger

Co., 88 Ill.App.3d 498, 410 N.E.2d 661 (4th Dist. 1980).

The petitioner, therefore, has a heavy burden of showing

that the Sign Ordinance is unrelated to the public health,

safety and welfare, and if there is any possible rational

basis for the ordinance, the court’s review must be defer-

ential to the legislative decision.

Since various courts have determined that commercial

off-premises signs may be prohibited or severely regulated

well below the standard industry size signs without vio-

lating either First Amendment or due process rights, it

is clear that the respondent’s restriction of off-premises

commercial signs to 200 square feet in size and 20 feet

in height is not unreasonable merely because it does not

permit the petitioner’s 1200 square foot ‘“standard-size”’

signs. See Metromedia, Inc. v. City of San Diego, 453

U.S. 490 (1981); Rzadkowolski v. Village of Lake Orion,

845 F.2d 653 (6th Cir. 1988); Wheeler v. Commissioner

of Highways, Commonwealth of Kentucky, 822 F.2d 586

(6th Cir. 1987), cert. denied, 484 U.S. 1007 (1988); A.F.

Brewster v. City of Dallas, 703 F.Supp. 1260 (N.D. Tex.

1988); and Major Media of the Southeast, Inc. v. City of

Raleigh, 792 F.2d 1269 (4th Cir. 1986), cert. denied, 479

U.S. 1102 (1987).

The Village’s Ordinance is also not unreasonable simply

because the signs are proposed to be located in commer-

~ =

cial and industrial areas which are less than pristine in

nature. In fact, the courts have specifically held to the

contrary. In Naegele Outdoor Advertising, Inc. v. City of

Durham, 844 F.2d 172, 174 (4th Cir. 1988), the Fourth

Circuit Court of Appeals upheld the Durham ordinance

on a motion for summary judgment, finding that the loca-

tion of billboards in commercial and industrial areas did

not preclude the city from relying on aesthetics to justify

a ban on commercial off-premises signs.

Finally, the determination of the reasonableness of sign

restrictions is not necessarily a factual inquiry, and the

trial court properly rejected the petitioner’s attempts to

diminish the validity of the regulations by the affidavits

of its experts. On a motion for summary judgment, the

court in A.E. Brewster v. City of Dallas, 703 F.Supp. 1260

(N.D.Tex. 1988) recognized the significant burden of over-

coming the judgment of legislators as to the appropriate

regulations which are needed to achieve the public’s goals.

It rejected the empirical studies provided by the sign com-

pany concerning the relationship of traffic safety and bill-

boards, and concluded that these studies could not susti-

tute for the City’s judgment. Brewster, 703 F.Supp. at

1265. Even in the face of affidavits from billboard experts

to the effect that signs of the size required by local or-

dinance could not be seen by high speed travelers, the

Court deferred to the legislative determination of the City

as to the reasonableness of the restrictions. Brewster, 703

F.Supp. at 1264-5.

It was this significant burden which the petitioner was

required to overcome, and substantial prior case law up-

holding similar regulations mandated a finding by the trial

court that the respondent’s Sign Ordinance is not arbi-

trary and capricious and fully protects the petitioner’s due

process rights, as a matter of law.

- Ss

B. The Regulations Of The Respondent’s Sign Ordinance

Do Not Constitute A Taking Of The Petitioner’s Prop-

erty Which Requires Compensation.

The petitioner argues that the respondent’s sign regula-

tions unlawfully take its property without due process.

However, if the regulations are reasonably related to the

public interest, as argued by the respondent above, a tak-

ing of the petitioner’s property cannot occur.

It is well settled in the law that a reasonable regulation

does not constitute a taking of property in violation of the

due process clause simply because it causes some adverse

impact on the business of the property owner or lessee.

This principle is especially apparent from a review of sign

regulation cases. For example, the Western District of

Virginia considered a due process challenge in Jackson

v. City Council ofthe City of Charlottesville, Virginia,

659 F.Supp. 470, 476 (W.D. Vir. 1987), and upheld sign

restrictions even though they deprived the owner of the

highest and best use of his property, resulted in a loss

of prospective business opportunities, and reduced the fair

market value of the signs.

Despite the obvious impact on the sign company’s busi-

ness, numerous courts have held that even an amortiza-

tion period which requires the elimination of existing pre-

viously lawful billboards within a certain period of time

does not constitute a taking. A.E. Brewster v. City of

Dallas, 703 F.Supp. 1260 (N.D. Tex. 1988); Major Media

of the Southeast, Inc. v. City of Raleigh, 792 F.2d 1269

(4th Cir. 1986) cert. denied, 479 U.S. 1102 (1987). In this

case, however, the signs erected by the petitioner under

the Interim Settlement Agreement were not legally non-

conforming, and the Village is not seeking to amortize

them. Contrary to the petitioner’s assertions, the signs

never conformed to the size restrictions applicable to

—20—

them. They also did not conform to the requirements of

HACA, since the courts have determined that HACA al-

lows for the enforcement of strict local regulation. Na-

tional Advertising Co. v. Village of Downers Grove, 166

Ill. App.3d 58, 519 N.E.2d 502, 116 Ill.Dec. 610 (2d Dist.

1988), cert. denied, 121 Ill.2d 572 (1988).

The court in Penn Central Transportation Co. v. New

York City, 438 U.S. 104 (1978), held that in order to deter-

mine whether governmental regulations go too far, and

constitute a taking of property without compensation, it

is necessary to consider the character of the governmental

action, the interference with reasonable investment-backed

expectations, and the economic impact of the regulations.

Penn Central, 438 U.S. at 124. In the case before this

Court, it is clear that the petitioner had no reasonable

investment-bacxed expectations, because it was always on

notice that its signs were impermissibly large and high

under the respondent’s Sign Ordinance. The petitioner holds

a leasehold over a small portion of property used for other

commercial purposes. Its use of the leasehold for billboards

was always contingent on its success in challenging the

respondent’s size regulation on signs, and it entered the

leases with full knowledge that the size restrictions pre-

cluded its proposed signs. The court in McNulty v. Town

of Indialantic, 727 F.Supp. 604, (M.D.Fla. 1989), specifical-

ly held that one who invests in land and improvements

with notice of statutory impediments to its right to use

the land as planned cannot justify legitimate investment-

backed expectations. McNulty, 727 F.Supp at 611. The

petitioner’s claim that it is entitled to compensation for

a regulatory taking is, therefore, defeated by the absence

of any legitimate investment-backed expectations.

Further, the respondent’s regulation of signs allows signs

in a substantial number of locations, subject to reasonable

—2j|~—

size and height limitations which are intended to assure

the traffic safety and aesthetic interests of the community.

Under these circumstances, the petitioner has not estab-

lished the necessary economic impact, that is, a taking

of all viable use of the property as required by First

English Evangelical Lutheran Church of Glendale v. Coun-

ty of Los Angeles, 482 U.S. 304 (1987).

The respondent’s sign restrictions do not result in an

unlawful taking of the petitioner’s property, and therefore,

do not warrant the interest of this Court on review.

IV.

THE RESPONDENT’S AMENDMENT OF ITS SIGN OR-

DINANCE TO ALLOW NONCOMMERCIAL MESSAGES

ON ANY PERMITTED SIGN DID NOT IMPAIR EITHER

THE PETITIONER’S CONTRACT OR DUE PROCESS

RIGHTS.

The petitioner has argued that it has a “vested right”’

to erect signs of precisely the size and height it desires,

and contends that this right arises from the respondent’s

application of its allegedly unconstitutional 1983 Sign Or-

dinance to preclude its signs. The petitioner further ar-

gues that the respondent could not amend its sign regula-

tions to assure their constitutionality, and then apply the

amended regulations to prohibit its oversized signs.

The trial court and the Second District Appellate Court,

respectively, scoffed at this argument as “logically prepos-

terous” (R-1493), “a twist of logic,” and “illogical.”’ Na-

tional Advertising Company v. Village of Downers Grove,

204 Ill.App.3d 499, 561 N.E.2d 1300, 149 IIl.Dec.604, 608

(2d Dist. 1990), cert. denied (1991). With regard to the

1987 amendment to the respondent’s sign regulations, the

Second District Appellate Court stated:

29

In the first place, National has not lost a right it

would have had but for the amended ordinance. The

amended ordinance did not take away a property

right; it added one, allowing noncommercial messages

on any signs permitted under the ordinance. Second-

ly, National’s permit was not denied because of this

alleged unconstitutional provision. National’s permit

was denied because it proposed to erect a sign that

exceeded the size allowed under the ordinance. (em-

phasis added).

National v. Downers Grove, 149 IIll.Dec. at 608-609.

In addition, the petitioner contends that it relied on the

Interim Settlement Agreement and that the respondent’s

amendment to its Sign Ordinance in 1987 cannot be ap-

plied to its signs. In so arguing, the petitioner fails to

advise this Court that the damages it waived under the

Agreement were damages it claimed it would suffer for

lost rent and profits until sign permits were issued. Since

its signs were erected pursuant to the Agreement, it has

benefitted from the rents and profits on those signs for

over six years while its claim was being litigated. It is

hard to believe the petitioner has not recovered its costs

in that time. In any event, the Interim Settlement Agree-

ment did nothing to guarantee an outcome favorable to

the petitioner in this litigation.

The petitioner’s argument with respect to its vested

right to erect signs is especially ironic, because the 1987

amendment gave the petitioner what it claimed it wanted:

its full First Amendment rights to place noncommercial

copy on any otherwise permitted signs. The Interim Set-

tlement Agreement says nothing and implies nothing con-

cerning the respondent’s ability to amend its sign regula-

tions to grant additional authority for signage. In fact,

paragraph 4 of the Agreement permitted the respondent

a

—~23—

to amend its sign regulations in response to a final deter-

mination as to the constitutionality of such regulations, and

to apply the amended regulations to the petitioner’s signs.

The petitioner has failed to show how circumstances would

be any different today, if the 1983 Ordinance had been

declared unconstitutional due to insufficient protection for

noncommercial speech, and the respondent had amended

its sign regulations to correct such a deficiency after such

a judicial determination. Under the terms of the Interim

Settlement Agreement, the size restrictions of the Sign

Ordinance would still be applicable to the petitioner’s pro-

posed signs, and would still preclude the erection of such

signs. The petitioner should have reasonably contemplated

the possibility of such an outcome, and erred if it relied

on its ability to claim a “vested right” to erect its signs

simply because it applied for permits for such signs at

a time when it believed that the respondent’s sign regula-

tions were unconstitutional.

In expending funds to obtain leases and prepare plans

and in ultimately constructing the subject signs pursuant

to the Interim Settlement Agreement, the petitioner sim-

ply took the chance that the respondent might be right,

and that its sign regulations would either be held con-

stitutional, or would be amended to render them constitu-

tional. The petitioner did not rely on the continued ex-

istence of the provisions of the 1983 Sign Ordinance; it

relied on its ability to successfully litigate this case. Its

diminished likelihood of success in this litigation as a re-

sult of the 1987 amendment to the sign regulations does

not give it a vested right to sign permits under any prior

ordinance or under the Interim Settlement Agreement,

especially since its signs never conformed to the valid size

restrictions under any version of the Sign Ordinance.

—24—

CONCLUSION

The respondent respectfully prays that this Honorable

Court deny the Petition for a Writ of Certiorari to review

the judgment of the Second District Appellate Court of

Illinois, as that decision fully conforms to the decisions

of this Court and the Federal District and Circuit Courts,

and raises no important or unique questions of federal law

which have not already been fully addressed.

Respectfully submitted,

BARBARA J. GOSSELAR

Counsel of Record

KUBIESA & POWER, LTD.

5757 South Cass Avenue

Westmont, Illinois 60559

(708) 969-1040

Attorneys for Respondent

App. 1

APPENDIX 1

INTERIM SETTLEMENT AGREEMENT

THIS INTERIM SETTLEMENT AGREEMENT is entered

into on this 14th day of December, 1984, by and between

plaintiff, NATIONAL ADVERTISING COMPANY, a Dela-

ware corporation (subsidiary of Minnesota Mining and Manu-

facturing, a Delaware corporation) (hereinafter referred to

as “National”) and the VILLAGE OF DOWNERS GROVE,

an Illinois home-rule municipality and its ZONING BOARD

OF APPEALS (hereinafter collectively referred to as the

“Village’’).

WITNESSETH:

WHEREAS, heretofore National has filed suit against

the Village challenging the validity of the Village’s denial

of permits for the erection of two (2) outdoor advertising

signs (hereinafter referred to as the ‘“‘Signs’’); and

WHEREAS, subsequent to the filing of the lawsuit, Na-

tional has obtained a lease for the erection of a third sign;

and

WHEREAS, National’s claim rests, in part, on the IIli-

nois Highway Advertising Control Act, 121 Ill. Rev. Stats.

Sec. 501, et seg., which statute authorizes erection of signs,

such as those proposed by National, of a size up to 1,200

square feet per sign face for double faced advertising

signs; and

WHEREAS, it is the position of the Village that its ordi-

nances with respect to the regulation of signs are legal,

valid and enforceable, notwithstanding National’s claim

with respect to the Illinois Highway Advertising Control

Act, and it intends to defend the validity in the present

lawsuit; and

App. 2

WHEREAS, National further asserts that the Village’s

refusal to permit the erection of the signs results in sub-

stantial damage to National in terms of lost sign rental

revenues; and

WHEREAS, the parties, through their respective attor-

neys, have met in an effort to negotiate an Interim Settle-

ment Agreement whereby National would be authorized

to erect its signs on the properties described hereinbelow

during the pendency of this lawsuit, subject to the limita-

tions and reservations contained herein; and

WHEREAS, in exchange for such permission, National

will agree to waive any and all claims for damages result-

ing from the Village’s permit denials as specified herein-

below;

NOW, THEREFORE, IT IS HEREBY AGREED BY AND

BETWEEN THE PARTIES HERETO AS FOLLOWS:

Section 1: The Village hereby authorizes National to

erect signs containing the following dimensions on the

property described hereinbelow:

a. A double-face advertising sign, 67 feet in height,

with each face being 672 square feet in area, to be

located on the following described property:

That part of the southeast quarter of section 30,

township 39 north, range 11, east of the third prin-

cipal meridian, bounded and described as follows;

Commencing at the southeast corner of said section

30; Thence north along the east line of said section

30 a distance of 650.39 feet (deed 650.43 feet) to the

point of beginning, said point being the northeast cor-

ner of lot 4 of Northern Illinois Gas Company York

Township Assessment plat no. 1 (document R 64-28042);

Thence continuing north along the east line of said

section 30, 628.25 feet to the south right of way line

of Butterfield Road; Thence southwesterly along south-

erly line of said Butterfield Road, a distance of 808.00

interacial meatal

App. 3

feet; Thence southeasterly along a straight line, which

is at right angles to the southerly line of said Butter-

field Road, 950.106 feet to a point in the northerly

line of aforementioned lot 4; Thence northeasterly

along the northerly right of way line of the Northern

Illinois Gas Company, being a curve concave to the

southeast, having a radius of 4027.22 feet, a distance

of 802.26 feet to the place of beginning, (except from

said tract that part conveyed by Warranty deed from

Goldblatt Bros, Inc, a corporation of Illinois to the

State of Illinois, for the use of the Department of

Public Works and Buildings recorded as document

R69-46986 and rerecorded as document R69-50820) all

in Du Page County, Illinois.

(the “Arun property’’). The lease date for such sign

is January 17, 1983.

b. A double-face advertising sign, 73 feet in height,

with each face being 1,200 square feet in area, to be

located on the following described property:

Part of Lot 3 and all of Lot 6 in Lloyd A. Goding’s

Assessment plat of part of Section 1, Township 38

North, Range 10 East of the third principal meridian,

and part of Section 6, Township 38 north, range 11

east of the third principal meridian, according to

the plat thereof recorded March 19, 1958 as document

873882, (except that part of said property heretofore

dedicated for highway purposes), in Du Page County,

Illinois.

(the “Stillwell property”). The lease date for such

sign is May 1, 1984.

ec. A double-face advertising sign, 73 feet in height,

with each face being 1,200 square feet in area, to be

located on the following described property:

Lots 1 and 2 in “Ford Leasing Development Co.

Assessment Plat”, a part of Lot 2 of Assessment Plat

No. 3 of lands belonging to Trustees of Joy Morton,

deceased, in Section 1, Township 38 north, range 10

App. 4

east of the third principal meridian, in Du Page Coun-

ty, Illinois.

(the “Madden property”’)

the support member of such sign to be located direct-

ly on the lot line and the sign face projecting so as

to extend only over the Madden property. The lease

date for such sign is January 20, 1983.

The signs shall be erected substantially in accordance with

the plans and specifications attached hereto as Exhibits

A, B and C, respectively.

Section 2: In consideration for the permission author-

ized by Section 1 hereinabove, National agrees:

(a) that it will not erect nor seek permission to erect

any other advertising signs within the corporate limits

of the Village during the pendency of this action;

(b) that it does hereby waive any and all claims for

damages, lost revenue, lost profits, or any other in-

jury against the Village, its officers and officials, in-

cluding any claims for costs and attorneys’ fees against

the Village, its officers and employees, which National

alleges or may allege resulted from the Viliage’s de-

nial of National’s applications to erect signs within

the corporate limits of the Village (including, but not

limited to, the signs described hereinabove in Para-

graph 1), and any other damages with respect to said

signs hereinafter accruing.

Section 3: In the event that it is finally determined by

this Court (or the Illinois Appellate Court, the Illinois

Supreme Court, or the United States Supreme Court, in

the event of appeals) that the ordinances of the Village

are valid or that for any other reason the Village acted

legally and properly in denying National’s sign permits,

National shall, within thirty (30) days thereafter, remove

Oe

App. 5

the signs erected pursuant to Section 1 hereinabove, or

shall conform its signs to all requirements of the Village’s

ordinances and shall not request any further administra-

tive relief by way of ordinance variation, amendment or

otherwise from the Village, or its Boards or Commissions,

so as to allow the erection of signs of the dimensions de-

scribed in Section 1 hereinabove, unless otherwise per-

mitted by the Village.

Section 4: In the event it is finally determined by this

Court (or the Illinois Appellate Court, the Illinois Supreme

Court or the United States Supreme Court, in the event

of appeals) that the ordinances of the Village which regu-

late the signs described hereinabove are unconstitutional,

void, beyond the authority of the Village, or for any other

reason invalid, National shall be permitted to maintain

such signs or to modify them in accordance with the final

ruling or judgment entered in this case, or in accordance

with valid requirements of any ordinances adopted by the

Village in response to such final determination.

Section 5: This is an Interim Settlement Agreement.

The erection of the signs as set forth hereinabove is be-

ing authorized by the Village for the sole purpose of

mitigating possible damages during the pendency of this

action so that a full judicial determination as to the valid-

ity of the applicable Village ordinances may be had in a

manner that is equitable to both parties. The parties rec-

ognize that, in effecting this Interim Settlement Agree-

ment, certain procedural requirements of the Village,

sometimes referred to as administrative remedies, includ-

ing, but not limited to, formal application for Village sign

or building permits, requests for ordinance text amend-

ments, variations or special uses, are, as to these signs

only, obviated and avoided by the negotiation and execu-

tion of this Interim Settlement Agreement. National will

App. 6

submit to the Village certificates of its structural engi-

neer and its electrician, certifying that the sign installa-

tion are, or will be, in compliance with the Village re-

quirements for structure, foundation and electrical wiring.

National recognizes that, except as set forth herein, noth-

ing in this Agreement and authorization shall be construed

as a waiver by the Village of any rights or defenses with

respect to the validity of said ordinances and other mat-

ters raised in this litigation.

IN WITNESS WHEREOF, the parties hereto have set

their hands and seals this 14th day of December, 1984.

NATIONAL ADVERTISING COMPANY

By: /s/ SANFORD M. STEIN by JMP

Sanford M. Stein

Its Attorney

VILLAGE OF DOWNERS GROVE

By: /s/ BARBARA J. GOSSELAR

Barbara J. Gosselar

Its Attorney

App. 7 -

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and cor-

rect copy of the foregoing MOTION FOR LEAVE TO FILE

INTERIM SETTLEMENT AGREEMENT AND PROPOSED

ORDER were, this 6th day of December, 1984, served

upon the following counsel of record. at the address listed

below, by Personal Delivery, before 5:00 p.m.:

Barbara J. Gosselar, Esq.

Village of Downers Grove

Civie Center

Downers Grove, Illinois 60515

/s/) SANFORD M. STEIN

Sanford M. Stein

App. 8

[Filed January 16, 1985)

UNITED STATES OF AMERICA

STATE OF ILLINOIS COUNTY OF DU PAGE

IN THE CIRCUIT COURT

OF THE EIGHTEENTH JUDICIAL CIRCUIT

DU PAGE COUNTY, WHEATON, ILLINOIS

NATIONAL ADVERTISING COM-

PANY, a Delaware corporation (sub-

sidiary of Minnesota Mining and Manu-

facturing, a Delaware corporation),

Plaintiff,

-Vs.- No. 83 MR 332

THE VILLAGE OF DOWNERS

GROVE, an Illinois municipality,

THE VILLAGE OF DOWNERS

GROVE ZONING BOARD OF

APPEALS, GREGORY BEGGS,

ANTHONY TONZ, EUGENIA

KUCERA, LAURENCE MUSIELAK,

AND HAROLD SLAGTER,

Defendants.

AGREED ORDER

This cause coming on to be heard on the Joint Mo-

tion of the Parties for Leave to File Interim Settle-

ment Agreement, counsel having represented to the

Court that the Interim Settlement Agreement, a copy

of which has been attached to the Motion, is a fair

and reasonable Interim Settlement Agreement and,

App. 9

the Court understanding that the Interim Settlement

Agreement will not dispose of the litigation but will

allow the parties to proceed with the litigation under

the terms of the Interim Settlement Agreement, and

the Court being fully advised on the premises,

IT IS HEREBY ORDERED that the Interim Settle-

ment Agreement of the parties, as evidenced by the

attachment hereto as Exhibit “A,” is hereby entered

of record.

Name SANFORD M. STEIN, ESQ.

DuPage Attorney No. 82557

Attorney for Plaintiff

Address 100 West Monroe Street, Suite 2100

City Chicago, Illinois 60603

Phone 312-382-0800

Enter: /s/ S. BRUCE SCIDMORE

Judge

Date: Jan. 16, 1985