City of Oakbrook Terrace v. Suburban Bank & Trust Co. ( 2006 )

No. 2--04--0719 filed: 3/24/06
_________________________________________________________________________
_____
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________________
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THE CITY OF OAKBROOK TERRACE, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant, )
)
v. ) No. 99--CH--50
)
SUBURBAN BANK AND TRUST )
COMPANY, as Trustee under Trust)
Agreement dated July 1, 1996, and Known as)
Trust No.1122; PARAMOUNT MEDIA )
GROUP, INC.; CAROLYN B. ROBINETTE, )
as Successor Trustee of the Clayburn B.)
Robinette Declaration of Trust dated)
November 15, 1980; THE ESTATE OF )
ROSE ALMA ROBINETTE; and )
NATIONAL ADVERTISING COMPANY, )
d/b/a Outdoor Systems Advertising, )
)
Defendants-Appellees )
)
) Honorable
(Public Storage, Inc.; Mad Outdoor, Inc.; and ) Patrick J. Leston,
Eller Media Company, Defendants). ) Judge, Presiding.
_________________________________________________________________________
_____
JUSTICE O'MALLEY delivered the opinion of the court:
Plaintiff, the City of Oakbrook Terrace (City), sought to enforce a zoning ordinance
regulating off-premises, freestanding, outdoor advertising signs against various defendants
that owned or leased either existing legal, nonconforming signs or the property on which
No. 2--04--0719
such signs were located. The parties filed cross-motions for summary judgment. Relying
primarily on section 7--101 of the Eminent Domain Act (Act) (735 ILCS 5/7--101 (West
1998)), the trial court found that the City could not require alteration of defendants' signs
without paying them just compensation. Accordingly, it granted defendants' motions for
summary judgment and denied the City's motion. The City appeals. We affirm.
I. BACKGROUND
On December 23, 1980, the City, a home rule unit of local government, enacted
Ordinance No. 80--24 (1980 ordinance) prohibiting off-premises, freestanding, advertising
signs and requiring that all nonconforming signs be removed or altered to conform to the
ordinance by 1988.
On January 15, 1999, the City commenced an enforcement action against
defendants, seeking injunctive relief and the assessment of fines after it gave notice to
defendants or their predecessors to remove, alter, remodel, or convert their signs to
conform to the City's ordinance. Defendants did not bring their signs into conformance, file
for variances, or appeal the City's determination that the signs violated the 1980 ordinance.
On August 14, 2001, the City enacted Ordinance No. 01--15 (2001 ordinance), which
repealed certain portions of the 1980 ordinance, including the portion that prohibited off-
premises, outdoor, advertising signs. The new ordinance permitted such signs, but
imposed size and height restrictions and included a two-year amortization period for
nonconforming signs. Under the ordinance, off-premises, outdoor, advertising signs could
not exceed 20 feet in height and could not have a face area larger than 200 square feet.
Defendant Paramount Media Group, Inc. (Paramount), leases a free-standing off-
premises outdoor advertising sign located at 0S480 Route 83 in the City. The sign was
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erected by a predecessor to Suburban Bank and Trust Co. (Suburban), as trustee under a
trust agreement dated July 1, 1996, and known as Trust No. 1122, and also owned by a
predecessor to Suburban prior to the enactment of the 1980 ordinance. In November
1999, Paramount leased the sign from Suburban for a 20-year term. Suburban sold its
property and the sign on December 18, 2003, to defendant J.T. Land Group, Inc. (J.T. Land
Group). 1 Paramount leases space on the sign to various advertisers. The Paramount sign
exceeds the area and possibly the height restrictions for such signs, in violation of the 2001
ordinance.
Defendant Carolyn B. Robinette, as successor trustee of the Clayburn B. Robinette
Declaration of Trust dated November 15, 1980 (Robinette Trust), owns certain properties
located at 0S680 and 0S700 Route 83 in the City (the Trust Properties). The Robinette
Trust or its predecessor erected an off-premises, freestanding sign on the 0S700 property
before the adoption of the 1980 ordinance, and it currently owns the sign and leases space
on it to various commercial advertisers. Defendant Viacom, Inc. (Viacom), or its
predecessor, National Advertising Company (National), 2 erected the off-premises,
freestanding sign on the 0S680 property sometime before the adoption of the 1980
1
On January 6, 2003, the trial court dismissed Suburban as a party defendant and
substituted in its place J.T. Land Group.
2
Viacom, Inc. was substituted for named defendant National Advertising Company.
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ordinance. Under a lease with the Robinette Trust or its predecessor, Viacom's sign
occupies the property and is leased to various commercial advertisers. Both signs on the
Trust Properties exceed the height and space limitations set forth in the 2001 ordinance.
Defendant the estate of Rose Alma Robinette (Robinette Estate) owns property
located at 0S560 Route 83 in the City. Viacom or National erected an off-premises,
freestanding sign on the property sometime prior to the adoption of the 1980 ordinance.
Viacom leases the sign from the Robinette Estate or its predecessor and leases space on it
to various commercial advertisers. The sign exceeds the height and space limitations set
forth in the 2001 ordinance.
The City filed its third amended complaint on November 19, 2001, seeking injunctive
relief against defendants, alleging they maintained off-premises signs in violation of its 2001
sign ordinance. Paramount filed a counterclaim against the City, arguing, among other
things, that enforcement of the ordinance would result in an unlawful taking of Paramount's
property without payment of just compensation. Following discovery, the parties filed
cross-motions for summary judgment. On June 16, 2004, the trial court denied the City's
motion and granted defendants' motions. The City timely appeals the grant of summary
judgment in favor of defendants and the denial of its motion for summary judgment.
II. STANDARD OF REVIEW
Summary judgment is proper when the pleadings, depositions, and affidavits on file
demonstrate that no genuine issue of material fact exists and that the moving party is
entitled to judgment as a matter of law. Kleinschmidt, Inc. v. County of Cook, 287 Ill. App.
3d 312, 315-16 (1997). When the parties file cross-motions for summary judgment, the
parties agree that no material factual issue exists and that only questions of law are
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presented. Subway Restaurants of Bloomington-Normal, Inc. v. Topinka, 322 Ill. App. 3d
376, 381 (2001). Of course, the mere fact that the parties have presented cross-motions
for summary judgment does not establish that no factual issues exist; rather, the trial court
and the reviewing court may determine the existence of a factual issue sufficient to
preclude the entry of summary judgment notwithstanding the fact that the parties do not
believe one exists. Kalis v. Colgate-Palmolive Co., 357 Ill. App. 3d 172, 174 (2005). We
review de novo the propriety of an order granting summary judgment. Outboard Marine
Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). Similarly, the construction
of a statute or ordinance involves a question of law, which we review de novo. Village of
Mundelein v. Franco, 317 Ill. App. 3d 512, 517 (2000).
III. ANALYSIS
A. Jurisdiction and Scope of Appellate Review
As a preliminary matter, we address whether we have jurisdiction to review this appeal and
the scope of our review. In this case, the City filed a complaint seeking to enforce its billboard
ordinance against defendants. Defendants, in turn, filed answers to the City's complaint and raised
several affirmative defenses, including arguments based on free speech, due process, equal
protection, a highway advertising statute, estoppel, and laches. Subsequently, the City moved for
summary judgment, addressing all the defenses raised by defendants. In their motions for summary
judgment, defendants raised only section 7--101 of the Act and a takings argument. However, in
their memoranda in opposition to the City's motion, defendants addressed some of their affirmative
defenses.
Following a hearing on the parties' motions, the trial court denied the City's motion for
summary judgment and granted defendants' motions. The court noted that it had reviewed the
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voluminous pleadings, and, in explaining its ruling, the court focused on section 7--101 of the Act.
It concluded by stating that it was adopting the positions of Paramount and Viacom in their "briefs,"
without specifying if the court was relying solely on the materials defendants submitted in support of
their motions for summary judgment or if it was also relying on defendants' memoranda in
opposition to the City's motion. In its written order denying the City's motion and granting
defendants' motions, the trial court stated "[f]or the reasons stated in open court, including [s]ection
7--101 of the [Act]."
In motions filed prior to oral arguments in this case, the parties presented arguments
concerning our jurisdiction over all or part of this appeal. Viacom contends that this court does not
have jurisdiction to consider the City's "interlocutory" appeal of its denied summary judgment
motion because that motion addressed different issues from defendants' granted summary judgment
motions. According to Viacom, because the trial court ruled only on the effect of section 7--101,
this court lacks jurisdiction over the appeal from the denial of the City's summary judgment motion
as to the other issues. The City contends that the trial court ruled on all of the issues raised in the
parties' cross-motions for summary judgment and in the memoranda opposing the motions. Thus,
because the order disposed of all the issues, it was a final, appealable judgment. Alternatively, the
City moves to dismiss this appeal for lack for jurisdiction, arguing that the trial court's order was
insufficient to establish jurisdiction for an interlocutory appeal because the order did not cite to
Supreme Court Rule 304(a) or make the required express written finding that there was no just
reason for delaying appeal. 155 Ill. 2d R. 304(a).
Ordinarily, the denial of a motion for summary judgment is not a final judgment and
therefore is not appealable. Chavda v. Wolak, 188 Ill. 2d 394, 403 (1999). However, an exception
exists where the parties file opposing motions for summary judgment on the same claim and the trial
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court grants one motion and denies the other. Arangold Corp. v. Zehnder, 187 Ill. 2d 341, 358
(1999). The resulting order is final and appealable because it entirely disposes of the litigation.
Arangold, 187 Ill. 2d at 358.
Here, the trial court's ruling is ambiguous as to its scope. Upon reviewing the transcript of
the hearing on the parties' summary judgment motions, we are unable to ascertain whether the trial
court ruled in defendants' favor on all of the issues raised in all of the summary-judgment-related
pleadings or only with respect to the common issues addressed by both sides in their summary
judgment motions. During the hearing on the parties' summary judgment motions, the court focused
on section 7--101, but also noted that it was adopting the arguments in Paramount's and Viacom's
"briefs." The court announced its decision following arguments by the City during which the City
addressed, among others, some of defendants' affirmative defenses. In light of this ambiguity as to
the scope of the order, we are reluctant to read the order expansively. Indeed, we note that
defendants needed to prevail on only one of their affirmative defenses to dispose of this litigation.
That said, however, the posture of the case under a narrow reading of the trial court's order is that
defendants' position is sustained by virtue of the grant of summary judgment in their favor and
against the City on defendants' motions and the denial of the City's motion for summary judgment.
As a result, the affirmative defenses are effectively mooted and would potentially come into
consideration on this appeal only if we find that the City should prevail on the issue of the
application of section 7--101 of the Act. Because we ultimately conclude that the trial court
properly ruled in defendants' favor on the issue of the application of section 7--101 of the Act, we
need not further address the scope of its order. Accordingly, we shall interpret the court's ruling to
encompass only the common issues raised in the parties' summary judgment motions, namely, the
application of section 7--101 of the Act and a takings argument. We also note that, in answer to the
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City's jurisdictional challenge, because the trial court's order on the cross-motions for summary
judgment disposed of the litigation, it constituted a final judgment and this court has jurisdiction to
consider this appeal.
In light of our narrow reading of the trial court's order, we decline to address two arguments
raised by the City. First, the City and Viacom address whether the City's inspection fee constitutes
an illegal tax. In the trial court, Viacom raised the fee issue as an affirmative defense. The City
responded to this argument in its answer and subsequently addressed it in its motion for summary
judgment, arguing that Viacom stated no facts to support its claim that the fee was excessive and had
no relation to the cost of the inspections. Viacom, however, did not raise the fee issue in its
summary judgment motion; instead, it raised it in its response in opposition to the City's summary
judgment motion, arguing that the City did not show that there existed no material factual issue with
respect to the fee argument. As we noted above, given the ambiguous scope of the trial court's order,
we will read it as incorporating only the issues addressed by both sides in their motions for summary
judgment, namely, section 7--101 of the Act and a takings argument. Therefore, because both sides
did not address the fee issue in their summary judgment motions, we decline to address it here.
Second, the City requests that we address its argument that defendants' affirmative defenses
be stricken. In its motion for summary judgment, the City argued that defendants' affirmative
defenses should be stricken for failure to plead sufficient facts. See 735 ILCS 5/2--613(d) (West
1998). The City furthermore requests that we address the affirmative defenses. Because defendants
did not raise these issues in their summary judgment motions, we decline the City's request to
address them here. Moreover, as noted above, in light of our ruling on the applicability of section 7-
-101 of the Act, there is no need to reach the affirmative defenses.
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Accordingly, we deny as moot the City's motion to preclude defendants from relying on their
affirmative defenses as a basis to decide this appeal. We grant Viacom's motion, joined by the other
defendants, to strike for lack of jurisdiction the City's appeal of the summary judgment denial as to
all issues (excluding section 7--101 of the Act and the takings argument). Finally, we deny the
City's motion to dismiss this appeal for lack of jurisdiction.
B. Home Rule Powers
The City argues that, as a home rule municipality, it is not subject to the
requirements of the Act. It contends that, under its home rule authority, it can regulate
signs and eliminate nonconformities over time in the manner it determines to be in the best
interests of the City and its residents. Addressing the City's home rule argument, the trial
court found that the Act preempts the City's ordinance and that sign owners throughout the
state should be compensated equally.
Section 7--101 of the Act provides, in relevant part: "[p]rivate property shall not be
taken or damaged for public use without just compensation, and in all cases in which
compensation is not made by *** [a] municipality in its respective corporate capacity, such
compensation shall be ascertained by a jury." 735 ILCS 5/7--101 (West 1998). The 1993
amendment to the Act provided specific protection to billboard owners. Pub. Act 87--1205,
eff. July 1, 1993 (amending 735 ILCS 5/7--101 (West 1992)). After the amendment, section
7--101 further provides: "[t]he right to just compensation as provided in this Article applies
to the owner or owners of any lawfully erected off-premises outdoor advertising sign that is
compelled to be altered or removed under this Article or any other statute, or under any
ordinance or regulation of any municipality or other unit of local government, and also
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applies to the owner or owners of the property on which that sign is erected." (Emphasis
added.) 735 ILCS 5/7--101 (West 1998).
The City is a home rule municipality and derives its home rule powers from the
Illinois Constitution of 1970. Ill. Const. 1970, art. VII, '6. The constitution permits
municipalities to exercise any power and perform any function pertaining to their
government and affairs, except as limited by that section. Ill. Const. 1970, art. VII, '6(a).
Section 6(i) provides that home rule units may perform concurrently with the state any
power or function of a home rule unit to the extent that the General Assembly by law does
not specifically limit the concurrent exercise or specifically declare the state's exercise to be
exclusive. Ill. Const. 1970, art. VII, '6(i). The intent and purpose of the home rule
provisions is to severely limit the judiciary's authority to preempt home rule powers through
judicial interpretation of unexpressed legislative intent. Scadron v. City of Des Plaines, 153
Ill. 2d 164, 186 (1992). Home rule powers should be construed liberally. Ill. Const. 1970,
art. VII, '6(m).
We apply a three-part test to determine whether a municipality's actions are a valid
exercise of its home rule authority. County of Cook v. John Sexton Contractors Co., 75 Ill.
2d 494, 508 (1979). First, we must decide whether the exercise of power by the
municipality is a power " 'pertaining to its government and affairs.' " County of Cook, 75 Ill.
2d at 508, quoting Ill. Const. 1970, art. VII, '6(a). Second, we must determine whether the
legislature has specifically limited the local exercise of the power at issue or whether the
legislature has specifically declared the State's exercise to be exclusive, thereby totally
preempting a home rule unit's exercise of its constitutional power. Finally, if no specific
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action has been taken, then we must determine the proper relationship between the local
ordinance and the state law. County of Cook, 75 Ill. 2d at 508.
1. Local Government and Affairs
The presence of a statewide, as opposed to a local, interest in an area has been
found on the basis of constitutional provisions committing the area in question to a specific
branch of government. McLorn v. City of East St. Louis, 105 Ill. App. 3d 148, 153 (1982)
(power over sovereign immunity); County of Cook, 75 Ill. 2d at 514-15 (environmental
control); People ex rel. Lignoul v. City of Chicago, 67 Ill. 2d 480, 487 (1977) (regulation of
banking industry); Ampersand, Inc. v. Finley, 61 Ill. 2d 537, 542 (1975) (unified court
system); see also City of Quincy v. Daniels, 246 Ill. App. 3d 792, 796-97 (1993) (home rule
municipality's trespass ordinance, which created a criminal offense for conduct the state's
criminal statute deemed to be noncriminal, held void because language in state statute and
constitutional convention comments reflected a statewide policy of having a uniform
definition of crimes). Home rule entities also have been found to overstep their powers
when their ordinances have an extraterritorial effect. See, e.g., People ex rel. Bernardi v.
City of Highland Park, 121 Ill. 2d 1, 16 (1988) (home rule municipality could not abrogate
state statute regulating prevailing wages for public works projects where the ordinance
would have affected wages outside the city and intruded into a field traditionally regulated
by the state).
It is not enough that the state has comprehensively regulated an area that would
otherwise fall under home rule power. Village of Bolingbrook v. Citizens Utilities Co. of
Illinois, 158 Ill. 2d 133, 138 (1994). Historic regulation by the state of an area is but one
factor to consider in determining whether an area is of local dimension. Bolingbrook, 158
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Ill. 2d at 139. Whether a particular problem is of statewide rather than local dimension
must be decided with regard for the nature and extent of the problem, the units of
government that have the most vital interest in its solution, and the role traditionally played
by local and statewide authorities in dealing with it. Kalodimos v. Village of Morton Grove,
103 Ill. 2d 483, 501 (1984).
Generally, the power to regulate outdoor advertising pertains to a municipality's
government and affairs. Scadron, 153 Ill. 2d at 194. However, the administration of justice
under the constitution is a matter of statewide concern and does not pertain to local
government and affairs. Ampersand, 61 Ill. 2d at 542. When the interests affected extend
well beyond those of home rule units, then the exercise of power does not pertain to local
government and affairs. City of Carbondale v. Yehling, 96 Ill. 2d 495, 499 (1983).
In Yehling, the city of Carbondale, a home rule unit, enacted an eminent domain
ordinance setting forth procedures to exercise eminent domain powers within its city limits
for the purpose of redeveloping its business district. The supreme court initially determined
that the city's purpose pertained to its local government and affairs. However, the court
held that the city's exercise of eminent domain power under its ordinance impermissibly
interfered with the state judiciary system and therefore it did not pertain to the local affairs
of Carbondale. Yehling, 96 Ill. 2d at 501. By imposing duties upon county and judicial
officials, defining specific remedies available in court proceedings, and prescribing the
order of certain court proceedings, the ordinance was no longer local in character. Yehling,
96 Ill. 2d at 504.
Attempting to distinguish Yehling, the City argues that its use of amortization as just
compensation has no impact on judicial procedures and that its ordinance places no undue
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burden on the courts. Paramount and Viacom contend that the City's ordinance precludes
a specific remedy of just compensation available in court proceedings under section 7--101
of the Act and that the City is attempting to modify the procedural rules under the Code of
Civil Procedure (Code) (735 ILCS 5/1--101 et seq. (West 1998)) that the judiciary would
have to follow. Thus, they argue that the City's ordinance directly conflicts with the Code
and affects the court system and its procedures by completely denying citizens the
procedural and property protections and the just compensation remedy mandated by the
Act.
We disagree in part with Paramount and Viacom's argument that the City is
attempting both to modify procedural rules of the Code and to preclude a specific remedy
available under the Act. We first look to the claim that the City's ordinance is seeking to
modify the procedural rules of the Code. We find that the City's ordinance does not impact
the procedures the courts are to follow as set forth in the Code. The Act's placement within
the Code does not necessarily imply that any municipal ordinance to the contrary infringes
into the judiciary's domain. We find any infringement to be too tenuous. We also note that
the burden imposed on the judiciary in Yehling was more explicit, including prescribing the
order of court proceedings and imposing duties on judicial officials. Indeed, in other cases
in which ordinances have been held to interfere with the procedural administration of the
judiciary, the ordinances imposed, as in Yehling, explicit burdens on the court system. See
Village of Glenview v. Zwick, 356 Ill. App. 3d 630, 641 (2005) (home rule municipality's fee-
shifting ordinance, which imposed on an opposing party the obligation to pay the
municipality's reasonable attorney fees when the municipality was the successful party in
litigation involving the enforcement or defense of a provision of its municipal code, did not
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pertain to the city's government and affairs because it imposed a burden on the state's
judicial system); City of Naperville v. Lerch, 198 Ill. App. 3d 578, 583-84 (1990) (in the
absence of a statute passed by the General Assembly, trial court had no power to award
plaintiff home rule municipality attorney fees under its ordinance permitting such award);
Ampersand, 61 Ill. 2d at 542-43 (ordinance imposing payment of county library fee in
addition to court filing fees held invalid because it related to the administration of justice,
which is a statewide concern and does not relate to local government and affairs). The
ordinance does not mandate any procedures dealing with the litigation of a violation of the
ordinance. We conclude, therefore, that the City's actions here do not generally interfere
with the Code of Civil Procedure.
This does not, however, answer the question of whether the City's ordinance
precludes a remedy, namely, just compensation, available under the Act. The City argues
that its amortization scheme is just compensation. That is to say, the amortization
provision of the City's ordinance fulfills the Act's mandate that a property owner receive just
compensation when it is deprived of its property by action of the state or municipal
government. In support, the City cites to Village of Skokie v. Walton on Dempster, Inc., 119
Ill. App. 3d 299 (1983). According to the City, Village of Skokie endorses the use of an
amortization period to compensate an owner while a municipality gradually eliminates a
nonconforming use in its zoning scheme. The City overstates the rules laid down in Village
of Skokie.
In the first instance, we note that Village of Skokie raises no home rule issue.
Second, there is no issue regarding a taking being worked by a regulatory ordinance; thus
there is no issue of whether an amortization period may stand as just compensation.
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Because of these distinguishing features, the general rule that the City attempts to draw
from Village of Skokie is inappropriate. The Village of Skokie court approved of the
amortization at issue there (Village of Skokie, 119 Ill. App. 3d at 304-05); however, the
issue being addressed related to the constitutionality of the ordinance, and not whether
substituting amortization for just compensation overstepped a municipality's home rule
authority. Village of Skokie, 119 Ill. App. 3d at 303-04.
Relatedly, we note that, even where a home rule municipality legislates within a
subject matter where there exist state statutes, this exercise of home rule authority will be
allowed where there is no infringement of the powers accorded to a specific governmental
branch. For example, in City of Chicago v. Taylor, 332 Ill. App. 3d 583, 589 (2002), the
court upheld an ordinance regulating firearms despite the existence of state statutes
covering the same subject matter. Additionally, the court emphasized the fact that the
delegates to the Illinois 1970 constitutional convention considered that firearm control "was
a suitable field for local regulation pursuant to home rule authority." Taylor, 332 Ill. App. 3d
at 588; see also Crawford v. City of Chicago, 304 Ill. App. 3d 818, 826-27 (1999) (domestic
partnership ordinance valid exercise of home rule authority because it extended health
benefits to city employees and did not impact marriage rights in general); Town of Normal
v. Seven Kegs, 234 Ill. App. 3d 715, 719 (1992) (underage drinking ordinance was valid
exercise of home rule authority where ordinance "does not conflict with or run contrary to
State law"); City of Wheaton v. Sandberg, 215 Ill. App. 3d 220, 226 (1991) (local ordinance
regarding the use of eminent domain to cure community blight upheld even though it did not
incorporate all standards for determining blight as used in state statute; no legislative
expression of need for uniformity across all communities in dealing with blighted areas).
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But cf. LaSalle National Trust, N.A. v. Village of Mettawa, 249 Ill. App. 3d 550 (1993)
(disconnection ordinance impermissibly infringes upon judiciary as it requires municipal
approval of disconnection after court determines that requirements of disconnection statute
have been met). The key factor in these cases appears to be whether the ordinance
"conflict[s] with or run[s] contrary to State law." Town of Normal, 234 Ill. App. 3d at 719.
Where an ordinance contravenes a state statute, or otherwise intrudes upon the bailiwick of
a governmental branch, the courts have not hesitated to find it an invalid exercise of home
rule authority. E.g., Ampersand, 61 Ill. 2d at 542-43; Zwick, 356 Ill. App. 3d at 641; Lerch,
198 Ill. App. 3d at 583-84.
With these principles in mind, we find Department of Transportation v. Drury
Displays, Inc., 327 Ill. App. 3d 881 (2002), to be more particularly apt. There, the
Department of Transportation condemned the defendant's sign and argued that the just
compensation due to the defendant was only the "bonus value" (the difference between the
market rent and the actual rent being paid) for the condemned sign. Drury Displays, 327 Ill.
App. 3d at 887. The court analyzed the plain language of the statute, particularly the
portion of section 7--101 of the Act that was added by the 1993 amendment. It held that
"just compensation" is the fair market value of the property at its highest and best use on
the date the property is condemned. Drury Displays, 327 Ill. App. 3d at 888. According to
the Drury Displays court, had the legislature intended that "just compensation" for a
condemned sign mean "bonus value," it would have chosen to use the words "bonus value"
in place of "just compensation." Drury Displays, 327 Ill. App. 3d at 888.
We find this analysis to be directly applicable to the case at hand. "Amortization"
has nothing to do with fair market value of the property at its highest and best use on the
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date the property is deemed condemned. The City's claim, that amortization is just
compensation, fails.
To the extent, then, that the City is arguing that its amortization schedule in its
ordinance is the only remedy available to defendants, the ordinance burdens the state
judiciary, because it prevents the state judiciary from awarding "just compensation"
pursuant to the Act. Moreover, it affects the substance of the Act and not only the
procedures. This infringement is significant enough to place it on par with the
impermissible infringements identified in Yehling, 96 Ill. 2d at 501-04, Ampersand, 61 Ill. 2d
at 542-43, Zwick, 356 Ill. App. 3d at 641, and Lerch, 198 Ill. App. 3d at 583-84. As a result,
the City's attempt to replace "just compensation" with amortization as the only remedy
available to a sign owner required to remove or alter its sign to comply with the City's
ordinance infringes on the state judiciary and is an impermissible exercise of its home rule
authority.
2. Remaining Issues Under Home Rule Analysis
As a result of our conclusion that the City's ordinance impermissibly infringes on a
statewide issue, namely, the provision of just compensation to advertising sign owners, we
need not continue our analysis of the ordinance under the framework set forth in County of
Cook, 75 Ill. 2d at 508.
C. Unlawful Taking
Our determination that the ordinance constitutes an improper exercise of home rule
authority obviates a further analysis of the taking-without-just-compensation issue; if the
ordinance is invalid, then the signs will be allowed to remain undisturbed. Consequently,
there can be no taking. If the City institutes a new ordinance that does not attempt to
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foreclose the remedies of the Act and moves to enforce it against defendants, then that
may result in a taking under section 7--101 of the Act. That scenario, however, is not
before us.
IV. CONCLUSION
For the foregoing reasons, the judgment of the circuit court of Du Page County is
affirmed.
Affirmed.
BOWMAN, J., concurs.
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
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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
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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
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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 contrary to state law is misplaced. Our supreme court has instructed that, to
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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
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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,
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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.
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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,
"[m]unicipalities 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
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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.
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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 plaintiff's 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
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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.
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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. Official Reports Advance Sheet No. 8 (April 17, 2002), R. 191(a), eff.
July 1, 2002. 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
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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.
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