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Elk Grove And Downers Grove;
By JOHN B. MURPHEY The long-standing municipal authority to regulate the size, lighting and spacing of outdoor advertising signs has been under a 25-year assault from the billboard industry. Starting in 1965, the industry "exploited gaping loopholes" in the Federal Highway Beautification Act, a bill originally designed to limit billboards along federally-funded highways, so that thousands of new billboards were constructed in commercial and industrial areas in municipalities along federally-funded highways. See Stern, The Best Congress Money Can Buy, (1988) at 48-52. In Illinois, the General Assembly passed the Highway Advertising Control Act in 1971, Ill.Rev.Stat. ch.121, §501 et seq. (HACA). HACA was enacted in order to avoid the loss of some $32,000,000 in federal highway funds. At the time, Governor Ogilvie stated that the bill was passed to "satisfy our desire to maintain the natural beauty of our roadsides [and] to prevent the imposition of a penalty on the state which would have reduced federal highway funds by $32,000,000 annually." Among other things, HACA sets forth maximum size, lighting and spacing limitations for billboards located within 660 feet of any federal interstate or primary aid highway. Section 6.01 of HACA established size maximums of 1200 square feet in area, 30 feet in height and 60 feet in length. Section 7 grants municipalities the authority to further regulate billboards in zoned commercial and industrial areas, so long as those regulations "are consistent with the intent of this Act and with customary use . . ." That apparent authority in Section 7 was seemingly contradicted by introductory language appearing in Section 1 of HACA, which provides that the various maximum size standards set forth in Section 6 be "consistent with customary use in this state . . . more severe restrictions being inconsistent with customary use and ineffective to accomplish the purposes of this Act." The billboard industry seized upon the Section 1 language to successfully argue in a number of cases that in spite of the Section 7 language, municipalities were preempted by Section 1 from enacting billboard ordinances containing more restrictive size and spacing limitations than the statutory maximum found in the Act. In 1986, the Seventh Circuit Court of Appeals, interpreting Illinois law, decided the case of National Advertising Company v. City of Rolling Meadows, 789 F.2d 571 (7th Cir. 1986). The Rolling Meadows court held that even a home rule municipality's sign regulations were preempted by Section 1 of HACA. Under this interpretation, municipalities were powerless to regulate billboards near federal highways, regardless of aesthetic considerations, regardless of proximity to residential properties, and regardless of other public health, safety and welfare concerns. Twelve hundred square foot billboards became more and more common throughout the state as municipalities were faced with the industry's preemption argument. Fortunately, the federal courts' interpretation of Illinois law is not binding on the Illinois appellate courts. In a series of decisions, our Appellate Court has now definitively rejected the billboard industry's preemption argument, upholding the municipal authority to effectively regulate billboard size in the interest of health, safety, welfare and aesthetics. In Dingeman v. Village of Mt. Zion, 157 Ill.App.3d 461, 510 N.E.2d 539 (4th Dist. 1987), the court upheld a municipal sign ordinance with size limitations substantially more restrictive than those found in HACA. The court reviewed the legislation and held that to the extent there was a conflict between Section 1 and Section 7, the former provision had to give way in order to assure that municipalities "may have effective zoning control over size, lighting and spacing" of billboards. 157 Ill.App.3d 463. The Village had the authority to "provide advertising regulations consistent with aesthetics planning in commercial or industrial areas bordering the primary state highways." 157 Ill.App.3d 464. The Dingeman court June 1990 / Illinois Municipal Review / Page 23 concluded that the village could enact more restrictive billboard regulations than the maximum set forth in the Act, "consistent with customary use." Dingeman was followed by the Second District's first decision involving the Village of Downers Grove, National Advertising Company v. Village of Downers Grove, 166 Ill.App.3d 58, 519 N.E.2d 502 (2nd Dist. 1988). In National Advertising, the Second District Appellate Court followed Dingeman's lead and held that any conflict between Section 1 and Section 7 "should be resolved so as to permit a municipality to more strictly regulate the size, lighting and spacing of advertising signs." 166 Ill.App.3d 61. The court found that since more restrictive municipal regulations would not jeopardize Illinois' receipt of federal highway funds, the municipal regulation must control, absent a specific legislative determination to the contrary. The industry continued to challenge more restrictive sign regulations. In Universal Outdoor, Inc. v. Village of Elk Grove, __ Ill.App.3d __, __ N.E.2d __ (1st Dist. 1990), the First District Appellate Court endorsed the reasoning in the Mt. Zion and Downers Grove cases, holding that a municipality may indeed enact more restrictive sign regulations than those found in the Act. The Elk Grove decision went beyond the other two cases by holding that HACA does not preempt a municipality's home rule authority, concluding that "neither the State Act nor the Federal [Highway Beautification] Act prohibits home rule municipalities from enacting more stringent regulations than contained in either Act." The appellate court revisited the Downers Grove Ordinance in Whiteco Metrocom v. Village of Downers Grove, __ Ill.App.3d __, __ N.E.2d __ (2nd Dist. 1990). Whiteco attempted to escape the holding of the earlier decisions through its interpretation of the phrase "customary use" found in the Act. Section 7's grant of regulatory authority to municipalities requires that more restrictive sign regulations be "consistent with . . . customary use." Whiteco argued that the term "customary use" referred not to customary land use in the municipality, but to the "customary use" of advertising signs throughout the state by the outdoor advertising industry. Since the Downers Grove restrictions (20 feet in height and 200 square feet in area) were not consistent with the industry's "customary use," which coincided with the statutory maximums of 1200 square feet set forth in HACA. The appellate court rejected this interpretation and held that the term "customary use" did not prevent the village from enacting billboard regulations. Indeed, the court concluded that "the only sign size regulation which would be inconsistent with customary use would be one that allows erection of a sign with an area of more than 1200 square feet." Perhaps more importantly, the court adhered to a number of earlier decisions and held that the reasonableness of a sign ordinance need not be tested under the traditional zoning test used in LaSalle National Bank v. County of Cook, 12 Ill.2d 29 (1957). Instead, a sign regulation "is tested strictly on the basis of whether it is reasonable, that is, whether it is rationally related to the public health, safety or welfare." Since Whiteco did not challenge the reasonableness of the village's ordinance, the court had no occasion to specifically rule on that issue, thus affirming the trial court's dismissal of Whiteco's challenge. As a result of these decisions, we have come full circle. The municipal authority to enact ordinances which effectively and reasonably regulate billboards in the interest of the public health, safety and welfare —including aesthetic considerations — has been firmly reestablished. The outdoor advertising industry may no longer ignore municipal regulations when it attempts to erect billboards near federally-funded highways. It would appear that after many years of litigation the legislative titles of the "Highway Beautification Act" and "Highway Advertising Control Act" are no longer ironic tributes to the outdoor advertising lobby. •
Page 24 / Illinois Municipal Review / June 1990 |
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