Bond Kildeer Marketplace v. CBS Outdoor ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Bond Kildeer Marketplace, LLC v. CBS Outdoor, Inc., 2012 IL App (2d) 111292
Appellate Court BOND KILDEER MARKETPLACE, LLC, Plaintiff-Appellee and Cross-
Caption Appellant, v. CBS OUTDOOR, INC., Defendant-Appellant and Cross-
Appellee.
District & No. Second District
Docket No. 2-11-1292
Filed September 25, 2012
Held Summary judgment was properly entered for plaintiff in action seeking
(Note: This syllabus removal of billboard from plaintiff’s property, since billboard was illegal
constitutes no part of pursuant to Highway Advertising Control Act.
the opinion of the court
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Lake County, No. 11-LM-766; the Hon.
Review Michael J. Fusz, Judge, presiding.
Judgment Affirmed.
Counsel on Robert J. Weber and Mary Margaret Johnson, both of Law Offices of
Appeal Robert J. Weber, of Chicago, for appellant.
Stephen J. Siegel and Adam T. Waskowski, both of Novak & Macey
LLP, of Chicago, for appellee.
Panel JUSTICE BURKE delivered the judgment of the court, with opinion.
Justices Zenoff and Hudson concurred in the judgment and opinion.
OPINION
¶1 Defendant, CBS Outdoor, Inc., owns outdoor advertising billboards, including a billboard
constructed on the property of plaintiff, Bond Kildeer Marketplace, LLC, located in the
Village of Kildeer, Illinois (Village). Plaintiff owns both the property on which the billboard
is constructed, which defendant leases, and certain surrounding property, both of which are
located at the intersection of Rand Road and North Plum Grove Road in the Village. Plaintiff
purchased the property in 2007 and became the successor lessor under the lease agreement.
Pursuant to the lease, the original lessors, James and Marjorie Barnthouse, leased the
premises to defendant’s predecessor in interest as lessee, Scadron Enterprises GP, in July
1989. Thereafter, Scadron constructed the billboard on the premises. The stated term of the
lease was 20 years, deemed renewed unless one party terminated the lease by notice to the
other at least 60 days prior to the end of the initial term. Plaintiff neglected to exercise its
right to terminate under the rollover provision. Two other provisions of the lease are relevant:
(1) section 10 includes a termination provision by which the lessor may terminate “if the
LESSOR is to improve the unimproved property by erecting thereon a permanent private,
commercial or residential building, such building to be constructed upon the location where
the LESSEE’s signs are presently located,” and (2) section 13 grants the lessee certain rights
if some governmental action prevents or hinders construction or maintenance of the
billboard.
¶2 Scadron obtained a permit for the billboard from the Illinois Department of
Transportation (IDOT) in 1989, pursuant to the Illinois Highway Advertising Control Act
of 1971 (Highway Ad Act) (225 ILCS 440/1 et seq. (West 2010)). Scadron transferred
ownership of the billboard to defendant’s predecessor, Outdoor Systems, Inc. (OSI). After
OSI acquired the billboard, it did not renew the Illinois permit. Defendant subsequently
acquired the billboard, but neither defendant nor its predecessors renewed the Illinois permit
at any time from 1997 through the commencement of the present litigation in 2011.
¶3 On May 28, 2008, the Village passed an ordinance (Village of Kildeer Ordinance No. 08-
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O-1012 (adopted May 28, 2008)) approving the Village’s annexation agreement with
plaintiff, allowing the existing billboard to remain on the property until April 9, 2009, or the
issuance of the first certificate of occupancy for the property, whichever occurred first (the
annexation ordinance). On August 26, 2008, the Village adopted an ordinance (Village of
Kildeer Ordinance No. 08-O-1023 (adopted Aug. 26, 2008)) approving a final plan and final
plat of subdivision for the Kildeer Marketplace Development on plaintiff’s property (the
development ordinance). By this ordinance, the Village approved plaintiff’s final plan to
develop the entire property, including the subject premises where the billboard is located,
into a shopping center. The Village amended the development ordinance on April 20, 2010,
approving revision of the site plan, which does not provide or allow for a billboard on the
premises or elsewhere on the property. Village of Kildeer Ordinance No. 10-O-007 (adopted
Apr. 20, 2010). The site plan calls for the shopping center parking lot to be built on the
premises and other portions of the property.
¶4 Plaintiff began to construct the shopping center on the property in 2008. By October 7,
2011, during argument on plaintiff’s motion for summary judgment, plaintiff had constructed
the parking lot of the shopping center, except on the site where the billboard continues to
stand.
¶5 On August 12, 2010, plaintiff served notice to defendant to terminate the lease, claiming
that it could do so pursuant to section 10 of the lease because it was “building” on the
location where the billboard was located. Defendant refused to vacate the premises. In
November 2010, plaintiff supplemented its notice, demanding, based on the development
ordinance, that the billboard be removed because the billboard was illegal. Plaintiff also
forwarded the Village’s demand letter, dated November 16, 2010, to defendant and reiterated
that the billboard must be removed. Defendant persisted in rejecting the notices and refused
to remove the billboard and surrender possession of the premises.
¶6 Plaintiff thereafter filed a two-count complaint, seeking an order of possession under the
Illinois Forcible Entry and Detainer Act (735 ILCS 5/9-101 et seq. (West 2010)) and a
declaratory judgment that, without limitation, the lease was properly terminated and the
billboard must be removed. Plaintiff asserted that (a) plaintiff may properly terminate the
lease pursuant to section 10 because plaintiff is improving the property, including the subject
premises, by constructing a commercial building, the shopping center, thereon; and (b) the
billboard is illegal under Village ordinances, entitling plaintiff to terminate the lease.
¶7 In response, defendant filed combined motions under sections 2-615 and 2-619 of the
Code of Civil Procedure (see 735 ILCS 5/2-619.1 (West 2010)), seeking to dismiss plaintiff’s
complaint. Plaintiff filed a motion for summary judgment. The parties agreed that there were
no disputed issues of fact, that section 10 of the lease was unambiguous, and that the trial
court should construe the lease as a matter of law.
¶8 The trial court granted plaintiff’s summary judgment motion as to the claim regarding
section 10 of the lease, finding that the parking lot proposed for the subject property was an
“accessory building,” triggering plaintiff’s right to terminate the lease pursuant to section 10.
The trial court denied plaintiff summary judgment as to the illegality claim, finding that,
notwithstanding the Village ordinances, the billboard was a legal, nonconforming use.
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Consequently, by this decision, the trial court denied defendant’s section 2-615 motion to
dismiss the section 10 claim but granted defendant’s section 2-619 motion to dismiss the
illegality claim.
¶9 Defendant appeals the denial of its section 2-615 motion and the granting of plaintiff’s
summary judgment motion, contesting the trial court’s finding that the parking lot proposed
for the subject property was an “accessory building,” triggering plaintiff’s right to terminate
the lease pursuant to section 10. Plaintiff cross-appeals the denial of its summary judgment
motion relating to its claim that the Village ordinances made the billboard illegal, which
rendered the lease unenforceable.
¶ 10 ANALYSIS
¶ 11 We first address plaintiff’s contention that the trial court erred in denying summary
judgment and finding that the billboard was a legal, nonconforming use. In appeals from
summary judgment rulings, reviewing courts conduct de novo review. Makowski v. City of
Naperville, 249 Ill. App. 3d 110, 115 (1993). “It is the judgment and not what else may have
been said by the lower court that is on appeal to the reviewing court.” Id. “The reviewing
court’s function in reviewing a summary judgment is to determine whether the trial court
correctly found that no genuine issue of material fact existed and whether the trial court
correctly entered judgment for the moving party as a matter of law.” Id.
¶ 12 The Village annexed the property on May 28, 2008, pursuant to an annexation agreement
with plaintiff and an ordinance directing the execution of that agreement. On August 26,
2008, the Village enacted ordinance No. 08-O-1023, approving plaintiff’s plat and site plan.
Then, on April 20, 2010, the Village enacted ordinance No. 10-O-007, amending ordinance
No. 08-O-1023. Neither ordinance includes the billboard within the approved plan. In
particular, the plan requires plaintiff to construct the shopping center parking lot where the
billboard is located. The annexation ordinance directs the Village to sign the annexation
agreement with plaintiff, and the development ordinance requires compliance with the
annexation agreement. The annexation agreement allows “the existing billboard on the
property until April 9, 2009, or the issuance of the first Certificate of Occupancy for the
Property whichever occurs first.” Thus, by April 9, 2009, the billboard was required to have
been removed. On November 16, 2010, the Village sent a letter to plaintiff stating that the
billboard was illegal under the ordinances and must be removed. Clearly, the billboard is
presently in violation of the annexation ordinance and the development ordinance (which
incorporates the annexation ordinance).
¶ 13 Plaintiff asserts that the billboard was not in compliance with the law when the
annexation ordinance was enacted in 2008, as the IDOT permit was void pursuant to section
8 of the Highway Ad Act, which requires that all billboards on federal highways maintain
valid Illinois billboard permits. It provides in relevant part:
“Upon change of sign ownership the new owner of the sign shall notify [IDOT] and
supply the necessary information to renew the permit for such sign at no cost within 60
days after the change in ownership. Any permit not so renewed shall become void.”
(Emphasis added.) 225 ILCS 440/8 (West 2010).
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¶ 14 “A legal nonconforming use is a use that is not permitted under the current zoning
ordinance but is allowed to continue because it predates the ordinance.” Taylor v. Zoning
Board of Appeals, 375 Ill. App. 3d 585, 592 (2007). In other words, to establish a lawful
nonconforming use requires a showing that the use complied with the law in effect when the
zoning ordinance, which renders the use nonconforming, was enacted. See City of Elgin v.
Rippberger, 59 Ill. App. 3d 92, 94 (1978).
¶ 15 The IDOT permit was initially issued to Scadron in 1989. In 1997, Scadron then
conveyed the billboard to OSI, which was required by section 8 of the Highway Ad Act to
notify IDOT and renew the permit. Defendant admits that written notice of Scadron’s 1997
sale of the billboard to OSI, or to defendant’s other corporate predecessors, was not sent to
IDOT until 2011.
¶ 16 The trial court reasoned that, although defendant violated section 8 of the Highway Ad
Act by failing to renew the permit, this was not the kind of violation of law that rendered the
billboard an illegal use. The trial court did not believe that the failure to notify IDOT of the
change of ownership had any effect on the billboard’s existence as a legal billboard. The trial
court also found that section 13 of the lease did not give plaintiff, as lessor, any power to
terminate the lease. We agree with the trial court’s finding that section 13 of the lease does
not give plaintiff the power to terminate the lease, as it simply enunciates the lessee’s rights
should a governmental body take action to remove the billboard.
¶ 17 Citing Black’s Law Dictionary 1604 (8th ed. 2004), which defines the word “void” as “of
no legal effect; null,” and applying its plain and ordinary meaning to section 8 of the
Highway Ad Act, plaintiff argues that OSI’s failure to timely renew the billboard permit
rendered the billboard illegal and that it remained illegal through the date when the
annexation ordinance was enacted in 2008. Accordingly, plaintiff maintains that the trial
court erred in concluding that the billboard was a lawful nonconforming use.
¶ 18 Defendant argues that, contrary to plaintiff’s contention, failure to send a timely notice
of a change of ownership does not automatically revoke the permit and render the billboard
unlawful. Defendant directs us to section 522.90 of title 92 of the Administrative Code
(Code) (92 Ill. Adm. Code 522.90 (2011)), which provides that, upon a change in permittee
or sign ownership, the new permittee or owner of the sign shall notify IDOT in writing of the
sign permit and the old and new permittees’ or sign owners’ names within 60 days after the
change, and that any permit not so renewed “shall become revocable” in accordance with
provisions that call for notice and time to respond and correct the problem. (Emphasis
added.) 92 Ill. Adm. Code 522.110 (2011) (IDOT notifies permittee, who has 30 days to
respond); 92 Ill. Adm. Code 522.120 (2011) (response can be that the problem has been
corrected).
¶ 19 The fundamental rule of statutory construction is to ascertain and give effect to the
legislature’s intent. Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 503-
04 (2000). The best indication of legislative intent is the statutory language, given its plain
and ordinary meaning. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 479 (1994). Where
the language is clear and unambiguous, we must apply the statute without resort to further
aids of statutory construction. Davis v. Toshiba Machine Co., America, 186 Ill. 2d 181, 184-
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85 (1999). If the statutory language is ambiguous, however, we may look to other sources to
ascertain the legislature’s intent. People v. Ross, 168 Ill. 2d 347, 352 (1995). A statute is
ambiguous if it is capable of being understood by reasonably well-informed persons in two
or more different ways. People v. Jameson, 162 Ill. 2d 282, 288 (1994). The construction of
a statute is a question of law that is reviewed de novo. In re Estate of Dierkes, 191 Ill. 2d
326, 330 (2000).
¶ 20 A court will give substantial weight and deference to an interpretation of an ambiguous
statute by the agency charged with administering and enforcing that statute. Bonaguro v.
County Officers Electoral Board, 158 Ill. 2d 391, 398 (1994). Indeed, a reasonable
construction of an ambiguous statute by the agency charged with that statute’s enforcement,
if contemporaneous, consistent, long continued, and in concurrence with legislative
acquiescence, creates a presumption of correctness that is only slightly less persuasive than
a judicial construction of the statute. People ex rel. Watson v. House of Vision, 59 Ill. 2d 508,
514-15 (1974).
¶ 21 In this case, the statute, on its face, is clear and unambiguous. Thus, according to the
express terms of the statute, the permit became void upon the failure to renew the permit
within 60 days after the change of sign ownership. See Blume v. Pittsburgh Life & Trust Co.,
183 Ill. App. 295, 298 (1913) (there can be no doubt that, by the express term that it “shall
become void,” the policy became void upon the failure of the insured to pay the premium for
the year). Because we find the statute unambiguous, we need not look to the agency’s
interpretation. We note also that the phrase “shall become revocable” conveys an entirely
different meaning from the express terms of the statute. See Black’s Law Dictionary 1346
(8th ed. 2004) (defining “revocable” as the capability of being cancelled or withdrawn).
¶ 22 Defendant argues that the billboard was not unlawful until 30 days after defendant
received a notice of violation from IDOT, and it never received notice from IDOT. Section
10 of the Highway Ad Act provides that “[s]igns without valid permits” are “unlawful.” 225
ILCS 440/10 (West 2010). Section 10 of the Highway Ad Act further states that “[e]ach sign
declared by this Section to be unlawful and a public nuisance shall be removed or brought
into compliance with this Act” within 30 days of the IDOT notice. Id. Therefore, the 30-day
notice from IDOT is a procedure for removing, or forcing into compliance, signs that IDOT
has already determined to be “unlawful,” which defeats defendant’s argument.1
¶ 23 Defendant argues that, even if we find that the permit was void for failure to timely
comply, then alternatively the billboard is still a legal nonconforming use because “issuance
of the State Permit and the notice of change of ownership do[ ] not relate to land use.”
Defendant relies upon Carroll v. Hurst, 103 Ill. App. 3d 984 (1982), in support of its
argument. We find Carroll distinguishable.
¶ 24 In Carroll, the homeowners of nearby land sued to enjoin the defendant’s operation of
1
Defendant also argues that, after OSI acquired the billboard in 1997, ownership did not
change, because the ownership arose through a series of stock purchases followed by mergers and
changes of name, rather than asset purchases. Defendant cites no evidence in the record or case law
to support this theory.
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a junkyard and salvage operation on his property, either as a private nuisance or as an invalid
nonconforming use under a county zoning ordinance. The holding by the Fourth District
Appellate Court distinguished “between violations of statutes designed to regulate land use
as opposed to violations of statutes whose purpose is totally unrelated to land use planning.”
Id. at 989. Here, unlike in Carroll, the Highway Ad Act and the required permission to place
signs along highways clearly are related to land use planning.
¶ 25 In Illinois, “[n]o recovery can be had by either party to a contract the performance of
which involves the violation of an existing law.” (Internal quotation marks omitted.) T.E.C.
& Associates, Inc. v. Alberto-Culver Co., 131 Ill. App. 3d 1085, 1095 (1985). Based on our
conclusion that the billboard was illegal pursuant to the Highway Ad Act, and given that the
billboard was unlawful prior to the 2008 passage of the annexation ordinance, the lease was
rendered unenforceable, as its purpose had been rendered illegal. Although the trial court
held that plaintiff had the right to terminate the lease pursuant to section 10 of the lease, we
may affirm on any ground supported by the record, regardless of whether the trial court relied
on that ground. See Swilley v. County of Cook, 348 Ill. App. 3d 405, 407 (2004).
¶ 26 Plaintiff argues that this appeal is moot as the billboard is clearly now illegal since April
9, 2009, has passed. However, because the billboard was illegal prior to the passage of the
annexation ordinance, that date is irrelevant.
¶ 27 Based on our determination, we need not address defendant’s argument that the trial
court erred in finding that the parking lot was an accessory building, which granted plaintiff
the right to terminate the lease pursuant to section 10 of the lease.
¶ 28 For the preceding reasons, we affirm the judgment of the circuit court of Lake County.
¶ 29 Affirmed.
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