CBS Outdoor, Inc. v. The Department of Transportation ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
CBS Outdoor, Inc. v. Department of Transportation, 2012 IL App (1st) 111387Appellate Court CBS OUTDOOR, INC., Plaintiffs-Appellants, v. THE DEPARTMENT
Caption OF TRANSPORTATION, an Agency of the State of Illinois, and
31W356 DIEHL INVESTORS, LLC, an Illinois Limited Liability
Company, Defendants-Appellees.
District & No. First District, Sixth Division
Docket No. 1-11-1387
Filed March 30, 2012
Rehearing denied June 14, 2012
Held The trial court’s denial of plaintiff’s complaint for writ of certiorari was
(Note: This syllabus reversed where the Illinois Department of Transportation lacked the
constitutes no part of authority to grant defendant a billboard permit under the Illinois
the opinion of the court Administrative Code after issuing a final denial of defendant’s permit
but has been prepared application.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CH-43446; the
Review Hon. Lee Preston, Judge, presiding.
Judgment Reversed and remanded with instructions.
Counsel on William J.P. Banks, James R. Griffin, Robert C. Kenny, and Michael R.
Appeal Burney, all of Schain, Burney, Banks & Kenny, Ltd., of Chicago, for
appellant.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Solicitor General, and Janon E. Fabiano, Assistant Attorney General, of
counsel), for appellee Department of Transportation.
Arnstein & Lehr LLP, of Chicago (Hal R. Morris, Thadford A. Felton,
and Julie A. Meyer, of counsel), for appellee 31W356 Diehl Investors,
LLC.
Panel JUSTICE PALMER delivered the judgment of the court, with opinion.
Justices Garcia and Lampkin concurred in the judgment and opinion.
OPINION
¶1 Plaintiff CBS Outdoor, Inc., appeals the trial court’s denial of its writ of certiorari
challenging the issuance of an outdoor billboard permit by defendant Illinois Department of
Transportation (IDOT) to defendant 31W356 Diehl Investors, LLC (Diehl). We reverse and
remand.
¶2 Diehl owned property located at 31W356 Diehl Road in Naperville (Diehl property). The
Diehl property is adjacent to and south of Interstate 88 (I-88). Plaintiff had an agreement with
Diehl to keep an outdoor billboard on the Diehl property until September 26, 2009, although
plaintiff’s lease on the property expired on April 30, 2009.
¶3 On June 26, 2009, Diehl submitted an application (application) to IDOT for an outdoor
advertising sign permit (permit) for the Diehl property. In a cover letter to the application,
Diehl stated that while plaintiff currently had an outdoor advertising sign on the Diehl
property, Diehl was reviewing its rights to remove plaintiff’s sign and requested that IDOT
process Diehl’s application. Diehl included a copy of a trustees’ deed showing it owned the
Diehl property, a Du Page County zoning ordinance effective May 1, 1957, and a zoning map
designating the property as “Manufacturing 2” property. “Manufacturing 2” is the zoning
designation required for the billboard Diehl was seeking. While the application described the
proposed sign location as “60 feet from the N side of the highway right of way,” the
documents accompanying the application showed the proposed sign location to be south of
I-88.
¶4 In a July 9, 2009, letter, Paul Lauricella, zoning technician for Du Page County, sent a
letter to IDOT erroneously stating that the Diehl property was zoned “F-Farming” in 1959.
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¶5 On July 17, 2009, IDOT informed Diehl that it intended to deny Diehl’s application
because “[t]he location proposed does not meet spacing or zoning requirements.” IDOT also
included a checklist of items Diehl was required to submit. The letter stated that Diehl had
30 days from the receipt of the letter to provide required documentation or challenge IDOT’s
intent to deny, and that “[i]f the required documentation or a challenge is not received within
30 days after receiving this notice[, Diehl’s] permit application will be closed.”
¶6 On July 27, 2009, IDOT informed plaintiff it needed to remove its sign from the Diehl
property because the sign was illegal and the “location did not meet zoning requirements.”
Plaintiff subsequently removed its sign.
¶7 On August 17, 2009, Diehl sent a written response to IDOT, challenging IDOT’s July 17,
2009, notice of intent to deny the application. Diehl explained that, while IDOT had
requested a letter confirming the Diehl property was located within municipal limits as of
September 21, 1959, the Diehl property was located in unincorporated Du Page County, and
the Du Page County zoning ordinance passed before that date designated the Diehl property
as zoned manufacturing.
¶8 On September 9, 2009, plaintiff filed an application for a new billboard sign permit on
property located at 31W350 Diehl Road (31W350 property), which is adjacent to the Diehl
property.
¶9 On September 17, 2009, plaintiff’s counsel wrote to IDOT, acknowledging receipt of
IDOT’s July 27, 2009, letter that asked plaintiff to remove its sign from the Diehl property.
Plaintiff’s counsel then stated:
“We are also aware that your office recently received an application for an outdoor
advertising sign at that same location during the time that [plaintiff’s] sign existed. Based
on my understanding of the Illinois Administrative Code (Section 522, et seq.) the
subsequent application should not have been processed by IDOT and should have been
denied.”
¶ 10 On September 18, 2009, IDOT issued its intent to deny plaintiff’s permit. Plaintiff did
not respond to IDOT’s intent to deny letter.
¶ 11 On September 21, 2009, IDOT issued Diehl a final written denial of its application.
IDOT stated that Diehl’s challenge to IDOT’s July 17, 2009, notice of intent to deny the
application “was received and carefully reviewed by [IDOT] personnel. It has been
determined the initial decision to deny your application stands and this file is now closed.”
¶ 12 In an October 14, 2009, letter, zoning technician Lauricella informed IDOT that he had
incorrectly stated that the Diehl property was zoned as “F-Farming.” Lauricella explained
that the Diehl property had been reclassified in 1957 as “M-2 General Manufacturing,” which
allows for the placement of an outdoor advertising sign.
¶ 13 On October 19, 2009, plaintiff applied for another billboard sign permit for the 31W350
property.
¶ 14 On October 22, 2009, IDOT informed plaintiff that it intended to deny plaintiff’s
application because plaintiff had submitted an incorrect survey with its application. The
record does not indicate that plaintiff challenged in writing IDOT’s October 22, 2009, intent
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to deny letter, as required by section 522.80(a) of title 92 of the Illinois Administrative Code
(Code) (92 Ill. Adm. Code 522.80(a), amended at 30 Ill. Reg. 15792 (eff. Oct. 1, 2006)).
¶ 15 On October 30, 2009, Diehl submitted an “Amended Application” to IDOT. In the cover
letter to the application Diehl explained that a clerical error in the original application
designated the Diehl property as being “60 feet from the N side of the highway [I-88] right
of way.” The number “60” and the letter “N” were entered into “blanks” on the application,
and the “N” was incorrectly inputted. Rather, the Diehl property is 60 feet south of the
highway right-of-way. In Diehl’s amended application, the Diehl property was listed as “60
feet from the S side of the highway right of way.” Diehl also stated that other documentation
included with the original permit clearly showed Diehl’s intent that the sign was to be built
60 feet from the south right-of-way.
¶ 16 In a November 18, 2009, memorandum to IDOT, plaintiff’s counsel stated that Diehl’s
permit application “should have been corrected within 30 days of June 26, 2009, or it should
have been denied. The [Code] does not allow for revisions to applications after the 30 day
period. Therefore IDOT has no authority to issue [the permit to Diehl].”
¶ 17 On June 24, 2010, IDOT notified Diehl that its application for the outdoor sign permit
was granted.
¶ 18 On July 1, 2010, IDOT again sent plaintiff written notice of its intent to deny its
application for a new billboard to be placed on the 31W350 property because “[t]here is an
existing [IDOT] advertising permit for a location within 500’ of [plaintiff’s] proposed
location.” The existing permit IDOT referenced was the permit issued for the Diehl property
on June 24, 2010.
¶ 19 On July 30, 2010, plaintiff submitted its challenge to IDOT’s intent to deny, arguing that
the permit issued to Diehl was invalid because Diehl could not and did not correct the
deficiencies in its application within the requisite 30-day period.
¶ 20 Plaintiff filed a complaint for writ of certiorari in the circuit court of Cook County,
requesting the court reverse the decision of IDOT approving Diehl’s sign permit at the Diehl
property.
¶ 21 On April 12, 2011, the court issued a written order denying plaintiff’s complaint for writ
of certiorari and affirming IDOT’s decision to grant Diehl the permit.
¶ 22 On appeal, plaintiff contends that IDOT had no authority to issue Diehl a permit nine
months subsequent to denying the permit on September 21, 2009. Simply stated, plaintiff
argues that once IDOT issued its letter of denial of Diehl’s application, the administrative
process was concluded, Diehl lost its status and plaintiff’s application should then have had
priority.
¶ 23 IDOT and Diehl first contend that plaintiff lacked standing to challenge IDOT’s issuance
of a sign permit to Diehl and that the trial court was entitled to dismiss plaintiff’s complaint
for writ of certiorari on that basis. We review de novo whether a party has standing. Sierra
Club v. Illinois Pollution Control Board, 2011 IL 110882, ¶ 8.
¶ 24 Plaintiff responds that the standing issue is forfeited because it was not argued below. In
Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252-53 (2010), our supreme court
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stated: “[w]hile a lack of subject matter jurisdiction cannot be forfeited [citation], a lack of
standing will be forfeited if not raised in a timely manner in the trial court [citations].” We
agree that this issue is forfeited here because IDOT did not complain plaintiff lacked standing
in the trial court and Diehl only alleged that plaintiff failed to exhaust its administrative
remedies in opposing plaintiff’s complaint for writ for certiorari.
¶ 25 Further, we find plaintiff has standing because the issuance of the Diehl permit blocked
consideration of plaintiff’s application for the 31W350 property. Under the Highway
Advertising Control Act of 1971, billboard signs along interstate highways and expressways
cannot be closer than 500 feet to each other. 225 ILCS 440/6.03(b) (West 2008). In IDOT’s
July 1, 2010, letter to plaintiff, IDOT stated that it intended to deny plaintiff’s application
because Diehl’s permit was within 500 feet of plaintiff’s proposed location. Because the
issuance of Diehl’s permit adversely impacted plaintiff, we find plaintiff has standing and
we will address this appeal on the merits. See People ex rel. Klaeren v. Village of Lisle, 202
Ill. 2d 164, 176 (2002).
¶ 26 In administrative law cases, we review the decision of the administrative agency, not the
trial court. Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 531 (2006)
(per curiam). Our standard of review in administrative review cases depends on what is in
dispute: the facts, the law or a mixed question of fact and law. Goodman v. Ward, 241 Ill. 2d
398, 405 (2011). Where the facts are undisputed and there is a dispute as to whether the
governing legal provisions were interpreted correctly by an administrative agency, the case
presents a purely legal question for which our review is de novo. Ward, 241 Ill. 2d at 406 (the
de novo standard is characterized as independent and not deferential). Here, we will review
de novo IDOT’s decision to issue Diehl a billboard permit because the central inquiry is
whether IDOT complied with sections 522.80 and 522.60 of title 92 of the Code. See People
v. Carpenter, 385 Ill. App. 3d 156, 161 (2008) (“[r]egulatory construction is a question of
law that we review de novo”).
¶ 27 Administrative rules and regulations have the force of law and are construed under the
same standards governing the construction of statutes. People ex rel. Madigan v. Illinois
Commerce Comm’n, 231 Ill. 2d 370, 380 (2008). The court’s primary objective in
interpreting an agency regulation is to ascertain and give effect to the intent of the regulatory
agency. Madigan, 231 Ill. 2d at 380. The most reliable indicator of an agency’s intent is the
language of the regulation itself. Madigan, 231 Ill. 2d at 380. “Where the language of the
regulation is clear and unambiguous, we must apply it as written, without resort to extrinsic
aids of statutory construction.” Madigan, 231 Ill. 2d at 380; see also Ries v. City of Chicago,
242 Ill. 2d 205, 216 (2011) (if the language of a statute is clear and unambiguous, the court
is “not at liberty to depart from the language’s plain meaning”).
¶ 28 Administrative agencies are generally bound to follow their own rules as written, without
making ad hoc exceptions or departures in making decisions. Provena Health v. Illinois
Health Facilities Planning Board, 382 Ill. App. 3d 34, 42 (2008). When an administrative
agency has adopted rules and regulations under its statutory authority for carrying out its
duties, the agency is bound by those rules and regulations and cannot arbitrarily disregard
them in issuing a decision. Springwood Associates v. Health Facilities Planning Board, 269
Ill. App. 3d 944, 948 (1995). An agency’s decision that is contrary to duly promulgated
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regulations must be reversed. Springwood, 269 Ill. App. 3d at 948.
¶ 29 Plaintiff argues that section 522.80 of title 92 of the Code unambiguously outlines the
procedure IDOT must follow in considering permit applications. We agree.
¶ 30 At the relevant time section 522.80 of title 92 of the Code stated:
“Denial of Application
a) If a review of the application or a site investigation reveals that the permit
application is incomplete, contains incorrect information or is not in compliance with the
requirements of the Act or this Part [522.80], or that the applicant is the owner of, an
abandoned or illegal sign, then the District shall notify the applicant in writing by
certified mail of its intent to deny the permit application and state the reasons for that
action. The notification shall inform the applicant that he/she has thirty calendar days
from the date of receipt of the notification to challenge the intent to deny or to correct the
deficiencies noted. No time extensions will be permitted. The challenge shall be made in
writing, state the position of the applicant, the facts in support of that position and shall
contain any relevant documentation. The challenge must be received in the District office
within the thirty day period. The District will review the challenge and shall either
approve or deny the application based on the requirements of this Part [522.80]. No
appeal may be taken from the District’s decision on the challenged application. The
applicant’s priority will be retained pending the District’s final decision. Only one
application per applicant will be processed for the same site or any site within 500 feet
of the site along an Interstate, expressway or a primary highway outside a municipality,
or within 300 feet along a primary highway within a municipality, for which a permit
application is submitted prior to the final decision by the District.
b) If, after consideration of the challenge, the District approves the application, the
procedures in Section 522.70 shall apply. If, after consideration of the challenge, the
District denies the application, it shall be marked ‘denied’ on its face and the reason for
denial stated on the application. The District shall notify the permittee of the denial by
sending a copy of the denied application.” (Emphasis added.) 92 Ill. Adm. Code
522.80(a), (b), amended at 30 Ill. Reg. 15792, 15809-10 (eff. Oct. 1, 2006).
Section 522.60 of title 92 of the Code states that “[p]riority of processing permit applications
shall be in the order they are received.” 92 Ill. Adm. Code 522.60(b), amended at 22 Ill. Reg.
7262, 7276 (eff. Apr. 9, 1998).
¶ 31 The plain language of sections 522.80 and 522.60 clearly outlines the procedures IDOT
is required to follow in considering applications. First, IDOT notifies the applicant in writing
of its intent to deny. Second, the applicant has 30 days to respond with additional information
or challenge the decision. Third, after receiving the applicant’s challenge, IDOT reviews the
challenge and either approves or denies the application. The Code clearly states that “[n]o
appeal may be taken from [IDOT’s] decision on [a] challenged application.” 92 Ill. Adm.
Code 522.80(a), amended at 30 Ill. Reg. 15792, 15809 (eff. Oct. 1, 2006). We find these
regulatory provisions to be clear and unambiguous. As an administrative agency, IDOT is
required to follow its own rules as written and is not entitled to disregard them on an ad hoc
basis. See Springwood, 269 Ill. App. 3d at 948.
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¶ 32 Here, IDOT failed to follow its own rules. On June 26, 2009, Diehl submitted its
application to IDOT. On July 17, 2009, IDOT informed Diehl that it intended to deny Diehl’s
application because it failed to meet spacing or zoning requirements. On August 17, 2009,
Diehl sent a written response to IDOT, challenging the July 17, 2009, notice. On September
21, 2009, IDOT informed Diehl its challenge to IDOT’s notice of intent to deny the
application “was received and carefully reviewed by [IDOT] personnel” but that it had “been
determined the initial decision to deny your application stands and this file is now closed.”
Upon receipt of the final denial, Diehl could have filed a petition for a writ of certiorari or
a new application with IDOT but failed to pursue these remedies.
¶ 33 Plaintiff filed its application on October 19, 2009, and responded to IDOT’s intent-to-
deny letter on November 18, 2009. Having received a final denial of its application, Diehl
lost priority, and plaintiff’s application was entitled to priority under section 522.60 of title
92 of the Code. However, IDOT never issued a final decision on plaintiff’s application, and
on June 24, 2010, nine months after issuing its final denial of Diehl’s permit, IDOT granted
Diehl’s permit. Nothing in the Code permitted IDOT to revisit its denial of Diehl’s
application, and we hold that it was without authority to do so.
¶ 34 We note that the record shows IDOT’s denial of Diehl’s permit may have been premised
on erroneous information provided by a Du Page County zoning technician. However, here
the regulations are clear and unambiguous, and we will not read in exceptions, limitations
or conditions that conflict with the clearly expressed intent of the legislature. See Solon v.
Midwest Medical Records Ass’n, 236 Ill. 2d 433, 440-41 (2010). As our supreme court said
in Outcom, Inc. v. Illinois Department of Transportation, 233 Ill. 2d 324, 328 (2009):
“IDOT’s decision on a challenged application is final.” Unfortunately for Diehl, there are no
provisions in section 522.60 that allow IDOT to revisit closed applications or make
exceptions for inadvertent errors in permit applications. See Caldwell v. Nolan, 167 Ill. App.
3d 1057, 1063 (1988) (“in the absence of express statutory language, an administrative
agency lacks jurisdiction to grant a rehearing or modify or alter its decisions”). It is important
as noted above that Diehl failed to take the necessary step of filing a timely writ of certiorari
in order to save this particular permit application.
¶ 35 Because IDOT was without authority to issue Diehl a permit under the Code, we reverse
IDOT’s decision to grant Diehl the permit. We remand to IDOT with directions that it
reinstate the September 21, 2009, final denial of Diehl’s permit application.
¶ 36 Reversed and remanded with instructions.
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