476 F. Supp. 2d 967

COVENANT MEDIA OF ILLINOIS, L.L.C., Plaintiff, v., CITY OF DES PLAINES, ILLINOIS, Defendant.

No. 04 C 8130.

United States District Court, N.D. Illinois, Eastern Division.

March 7, 2007.

*969E Adam Webb, Law Offices of E. Adam Webb, Atlanta, GA, Kurt Joseph LeVitus, LeVitus Law Offices, Chicago, IL, for Covenant Media of Illinois, L.L.C., Plaintiff.

Frank Bennett Garrett, III, Aaron Grifton Allen, Joanne Hwang Petty, Mathias William Delort, Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., Chicao, IL, David R Wiltse, City of Des Plaines, Des Plaines, IL, William D. Brinton, Rogers Towers, P.A., Jacksonville, FL, for City of Des Plaines, Illinois, Defendant.

MEMORANDUM OPINION AND ORDER.

LEFKOW, District Judge.

More than two years ago, plaintiff, Covenant Media of Illinois, L.L.C. (“Covenant”), filed a fourteen-count complaint against defendant, City of Des Plaines, Illinois (“the City”), challenging the constitutionality of the City’s sign ordinance (“the Sign Ordinance”).. Through the course of the litigation, this court identified a number of constitutional defects in the Sign Ordinance and the City twice amended its ordinance in an effort to cure those defects. Apparently, Covenant is satisfied that the current version of the sign ordinance is constitutional, and the parties now dispute only whether the case is moot and whether Covenant has standing to pursue the litigation. Presently before the court is the City’s motion for summary judgment. For the reasons stated below, the motion is granted.

BACKGROUND

Covenant is an Illinois limited liability company in the business of erecting and operating advertising signs for businesses, churches, organizations, and individuals to communicate commercial and non-commercial messages.1 The City is a municipal corporation and political subdivision of the State of Illinois located in Cook County.

As of February 2004, the City had adopted an ordinance limiting, among other things, the use and erection of billboards within the City. The purpose of the ordinance was to “regulate and control the use and development of land within the City of Des Plaines.” More generally, “it *970[was] designed to promote the public health, safety, and general welfare ...” of the City’s residents. Among other restrictions, section 11.6(B) of the Sign Ordinance limited the placement of billboards within certain zoning districts and within 660 feet of Interstate Highways 90 and 294 (“the Interstate Highways”). Section 11.3-3(A) required the Zoning Administrator to examine a permit application and its accompanying materials to determine its compliance with the Sign Ordinance as well as any other applicable City Code, ordinance, or law once a complete application had been submitted. Section 11.3-3(C) required the City Manager to “negotiate an agreement, on such terms, conditions and locations as is appropriate, including but not limited to, a licensing fee of $15,000.00 per sign payable on completion of construction and other financial considerations to the City as the City Manager deems appropriate.” Section 11.3-3(C) further required the City Council to approve the agreement reached by the City Manager for a billboard permit and the Mayor to sign the agreement.

On November 16, 2004, Covenant submitted an application to erect a billboard. Covenant’s application contemplated the erection of a billboard in a location more than 660 feet from the Interstate Highways and did not specify whether it would display commercial or non-commercial messages. By letter dated November 19, 2004, the City’s Building Inspector sent the following letter to Covenant:

Re: Billboard Permit Application for 2100 E. Touhy Ave., Des Plaines, IL Dear Mr. Miles:

The Building and Code Enforcement Division has reviewed your plans for the above improvement. Based on the information provided, the City must deny the permit request as submitted. In order for the permit to be further processed, the following items must be addressed and satisfactory correctional information must be resubmitted, including revised drawings and an item-by-item written reply to all comments.
1) This site must be approved by the Plan Commission and City Council by ordinance prior to the Issuance of a permit.
2) Approved [Illinois Department of Transportation (“IDOT”) ] permit is required.
3) Soil borings will be required.
4) Structural calculations must be legible and specific to sign and local soils.
5) Structural calculations must be signed by a structural Engineer.
6) Electrical plans must be submitted.
7) Plat of Survey is required.
8) Site plan is required.
Your permit will be on hold for thirty (30) days pending receipt of corrected, proper information. If you are unable to respond within this period of time, we will return your application and all other previously submitted materials to you. You may then re-apply at your convenience.
If you have any questions or if I may be of -any further assistance, please feel free to contact me at (847) 391-5372. Sincerely,
DEPARTMENT OF COMMUNITY DEVELOPMENT Building and Code Enforcement [SIGNED]
A1 Biancalana, Jr.
Building Inspector

On December 16, 2004, Covenant filed the instant law suit challenging the constitutionality of the Sign Ordinance in its entirety, both facially and as applied to Covenant. On the same date, Covenant responded by letter to the City’s November 19 letter denying its application.2 In *971its letter, Covenant stated its belief that its application was already in compliance with the Sign Ordinance, explained its failure to submit certain materials identified in Biancalana’s letter, and expressed willingness to comply with all reasonable requests for additional application materials. Covenant also attached to its letter a completed application for an IDOT permit, apparently in an attempt to persuade the City that such a permit was forthcoming, though it did not submit any evidence that it had actually filed the application with IDOT. Biancalana replied by letter on December 23, 2004, stating that Covenant had still either failed to submit the application materials identified in his November 19, 2004 letter or had submitted them in incomplete or improper form. Binacalana concluded:

In order for the permit to be further processed, the following items must be addressed and satisfactory correctional information must be resubmitted including revised drawings and an item-by-item written reply to all comments.
1) Submit completed Plan Commission application.....
2) Submit approved IDOT permit.
3) Submit soil borings of proposed location with permit application.
4) Submit legible structural calculations, specific to this sign, for review with permit application.
5) Electric plans shall be stamped by an Illinois licensed engineer.
6) Submit a Plat of Survey.
7) Site plan shall include dimensions from adjoining structures.3

During January 2005, Covenant submitted an additional 11 applications for sign permits, all of which the City rejected as incomplete on February 10, 2005. Ten of Covenant’s eleven additional applications proposed locations more than 660 feet from the Interstate Highways. The application for the 911 E. Touhy site proposed a location within 660 feet of the Interstate Highways, but in an area zoned for single family residences. In order to further process these applications, the City stated that each of the following items must be addressed and satisfactory correctional information resubmitted:

1) A completed Application For Development Permit (for structure).
2) A completed Sign Permit Application.
*9723) A fully dimensioned site plan showing the location of the proposed billboard sign
4) A Plat of Survey.
5) Three sets of drawings signed and sealed by a currently licensed Illinois structural engineer or architect.
6) Structural calculations signed and sealed by a currently licensed Illinois structural engineer or architect.
7) An approved IDOT permit.
8) Soil borings signed and sealed by a currently licensed Illinois civil or structural Engineer.
9) A photometric footprint for any proposed illumination.
10) Plan Commission and City Council action is required to amend the current City. Zoning Code to create an approved site for this Billboard sign. Contact the Planning and Zoning Division for an application.

In its complaint, Covenant alleged that the Sign Ordinance was unconstitutional on a variety of grounds, as has been fully set out in previous decisions of this court and will not be repeated here. On June 8, 2005, the court issued a Memorandum Opinion and Order denying the City’s motion to dismiss [Docket No. 21]. See Covenant Media of Ill., L.L.C. v. City of Des Plaines, Ill., 391 F.Supp.2d 682, 695 (N.D.Ill.2005). In that decision, the court determined that Covenant had alleged facts sufficient to support standing to challenge the Sign Ordinance, both as applied to it and to third parties under the over-breadth doctrine, and that the lawsuit was ripe for judicial review. The court also concluded that the Sign Ordinance unconstitutionally favored commercial speech over non-commercial speech, impermissibly discriminated among non-commercial messages, and impermissibly favored some commercial topics at the expense of others. Additionally, the court held that Covenant stated a claim that the Sign Ordinance was overbroad as a result of its failure to specify criteria to be used in determining whether a sign contains “obscene, indecent, or immoral matter” or to define those terms. The court further concluded that the Sign Ordinance granted City officials unbridled discretion to approve or deny a sign permit application and that Covenant had stated a claim that the Sign Ordinance lacked adequate procedural safeguards.

On June 22, 2005, Covenant filed its Motion for Preliminary Injunction seeking to enjoin the City from continuing to enforce the sign restrictions. Following the parties’ briefing on the motion, at the August 23, 2005 status hearing, the court provided the City an opportunity to decide whether to amend the Sign Ordinance before ruling on the motion. On September 8, 2005, the parties filed a joint status report, advising the court that the City had amended the Sign Ordinance (“the First Amended Sign Ordinance”) on August 29, 2005.

The First Amended Sign Ordinance remedied many of the defects identified in the court’s June 8, 2005 Memorandum Opinion and Order.4 Because, however, *973the court determined, inter alia, that Covenant was likely to succeed on the merits of its argument that the First Amended Sign Ordinance, which retained the provisions granting unbridled discretion to City officials to approve or deny permit applications, constituted an unlawful prior restraint on Covenant’s First Amendment right of free speech, this court granted Covenant’s motion for a preliminary injunction against enforcement of the First Amended Sign Ordinance [Docket No. 43]. See Covenant Media of Illinois, L.L.C. v. City of Des Plaines, 2005 WL 2277313, *4 (N.D.Ill. Sept.15, 2005).

On September 20, 2005, the City enacted the Second Amended Sign Ordinance, removing the provisions identified by the court as the basis for granting Covenant’s request for injunctive relief. As a result, this court determined that the motion for preliminary injunction previously granted had become moot and declined to enter Covenant’s proposed draft order for injunction 5 [Docket No. 49].

The City now contends that it is entitled to summary judgment on all fourteen counts of Covenant’s complaint. First, the City argues that this court lacks jurisdiction to hear this case because all of Covenant’s claims are rendered moot by the enactment of the Second Amended Sign Ordinance. The City further claims that, even if Covenant’s claims are not moot, Covenant lacks standing to bring an' as-applied challenge to any provision of the Sign Ordinance other than those pursuant to which its applications- were denied. Alternatively, the City maintains that, even if Covenant may challenge the entire Sign Ordinance, those provisions that actually caused the denial of Covenant’s permit applications are constitutional because those provisions are valid content-neutral regulations, and any individually infirm provisions are severable. The City also contends that Covenant cannot facially challenge the Sign Ordinance because Covenant has not suffered any actual injury; any injury it has suffered cannot be traced to a unseverable, unconstitutional provision nor redressed by a favorable decision; and as a commercial advertiser it lacks sufficient interest in non-commercial speech to challenge provisions regulating non-commercial speech. Finally, the City claims that Covenant acquired no vested rights in a billboard permit, and therefore, it is not entitled to actual or nominal damages or attorneys’ fees.

Covenant responds that the case is not moot because its claim for monetary damages presents a dive case or controversy. Covenant also contends that it has standing to mount a comprehensive attack on the Sign Ordinance, both as applied to it and, under the overbreadth doctrine, to third parties because the Sign Ordinance contains provisions that grant City officials unfettered discretion to grant or deny permits. Covenant further argues that its injuries are redressable because the provisions of the Sign Ordinance that the City relied on to reject its permit applications are constitutionally infirm and unseverable; the City’s reference in this litigation to other provisions of the Sign Ordinance, the building code, and Illinois law as a basis for its denial is an untrustworthy post-hoc rationalization; and, regardless, *974none of those provisions and laws prohibit the erection of Covenant’s billboards.

I. Mootness

Under Article III of the Constitution, federal courts have jurisdiction over cases and controversies. A case becomes moot, however, “when the dispute between the parties no longer rages, or when one of the parties loses his personal interest in the outcome of the suit.” Holstein v. City of Chicago, 29 F.3d 1145, 1147 (7th Cir. 1994). At the same time, “[i]t is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice [unless it is] absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of Earth, Inc. v. Laidlaw Env. Services (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (internal quotation marks and citations omitted). “[T]he presumption in cases involving voluntary cessation by government officials, particularly where it appears that the municipality is attempting to refashion the challenged statute to pass constitutional scrutiny, is that the municipality does not intend to reenact the same or substantially similar unconstitutional provisions.” Lockridge v. Village of Alsip, Illinois, 2005 WL 946880 (N.D.Ill. Apr.18, 2005) (citing Fed’n of Advertising Indus. Representatives, Inc. v. City of Chicago, 326 F.3d 924, 929 (7th Cir.2003)).

Covenant concedes that its request for injunctive relief is mooted by the City’s enactment of the Second Amended Sign Ordinance, but contends that the case as á whole is not moot because of Covenant’s request for damages, attorneys’ fees, and costs.6 The City does not seem to contest the well-recognized rule that a defendant’s change in conduct does not render a case moot where a claim for monetary damages remains.7 Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 608-09, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001); see also Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) (although claim for injunctive relief was moot, a case or controversy still existed where the plaintiff requested declaratory relief and damages); Crue v. Aiken, 370 F.3d 668, 677-78 (7th Cir.2004) (although request for injunctive relief was moot, the court had to consider the merits of the case since requests for declaratory relief and damages remained). Instead, the City argues that the case is moot because Covenant did not *975acquire a vested right in a permit by virtue of its applications under the Sign Ordinance, and thus, it has no claim for damages stemming from the denial of its applications.

The City relies on Get Outdoors II, L.L.C. v. City of Lemon Grove, Cal., 378 F.Supp.2d 1232 (S.D.Cal.2005), in support of its position. In Lemon Grove, the court found that under California law, a party has no vested right in a permit until the permit is issued and the permitee has performed substantial work and incurred substantial expense in reliance on it. Id. at 1240. Since it was undisputed that the plaintiff had never received a permit, and there was no evidence that the plaintiff had incurred substantial expense or performed substantial work in reliance on any such permit, the court found that the plaintiff did not have a vested right under the original sign ordinance entitling it to erect its proposed billboards even if it successfully challenged the ordinance. Id. On that basis, the court dismissed the plaintiffs claims as moot.

Other courts have employed a similar analysis, first declaring that a party may have a claim for damages if it has a vested property right under state law, then identifying the standard in the relevant jurisdiction, and finally evaluating whether the plaintiff had made the necessary showing. Id. See also Nat’l Advertising Co. v. City of Chicago, 788 F.Supp. 994 (N.D.Ill.1991) (finding that a billboard applicant could not pursue a claim for damages, because under Illinois law, permits are privileges from which no vested property rights attach) (citations and quotations omitted); Outdoor Media Group, Inc. v. City of Beaumont, 374 F.Supp.2d 881 (C.D.Cal. 2005) (plaintiff who had not obtained billboard permit had no claim for damages because under California law billboard erection rights do not vest until a permit issues and the permitee substantially relies on it. by certain action); Seay Outdoor Advertising, Inc. v. City of Mary Esther, Fla., 397 F.3d 943 (11th Cir.2005) (finding billboard applicant’s claims moot because it could not show under Florida law that it possessed a vested right in a permit). ,

Others, however, have not required plaintiffs to demonstrate that they 'had a vested right in a permit in order to maintain a claim for damages. See Lockridge v. Village of Alsip, Ill., 2005 WL 670632 (N.D.Ill. March 22, 2005) (summarily concluding that what saved the plaintiffs claim from being moot was that it had requested damages and attorneys’ fees and costs); Covenant Media of Cal., L.L.C. v. City of Huntington Park, Cal, 377 F.Supp.2d 828 (C.D.Cal.2005) (finding plaintiff potentially entitled to compensatory or nominal damages based on prior enforcement of a since-repealed sign ordinance, even though plaintiff made no showing that it had a vested right in a permit); Boulder Sign Co. v. City of Boulder City, Neu, 382 F.Supp.2d 1190 (D.Nev.2005) (finding plaintiffs claim for damages not moot even though it was never awarded a permit and made no showing that it substantially relied on one); Covenant Media of Ill., L.L.C. v. City of Elgin, Ill., 2006 WL 573890 (N.D.Ill. March 6, 2006) (rejecting city’s mootness challenge because billboard applicant was seeking damages for alleged harm resulting from denial of its applications). None of these cases makes any reference to vested rights so this court assumes that the defendants in those cases did not submit the vested rights argument presented here.8 As a consequence, their instructive value is limited.

*976It appears, in any event, that the analyses in the cases cited above do not consider the relevant distinction that although a plaintiff must have a property (or liberty) interest in order to pursue a due process claim, a property interest is not necessary for a First Amendment claim. The protections of procedural due process extend only to deprivations of life, liberty and property interests protected by the Fourteenth Amendment. See Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Thus, in order. to assert a claim for damages based on an alleged procedural due process violation, a plaintiff must indeed show a “legitimate claim of entitlement” to the claimed protected interest, or in this case, a vested right in a permit. See Roth, 408 U.S. at 577, 92 S.Ct. 2701; See also Boczar v. Kingen, 2000 WL 1137713 (S.D.Ind. March 9, 2000). Similarly, since “[a] claim based on substantive due process must be based on the deprivation of an underlying protected life, liberty or property interest,” the failure to show a protectable properly interest is fatal to a substantive due process claim as well. See Boczar, 2000 WL 1137713, at *23 (citing Jeffries v. Turkey Run Consol. School Dist., 492 F.2d 1, 3-4 (7th Cir.1974)). Because Covenant fails to assert a vested right under Illinois law, it cannot prevail on its claim for damages for alleged procedural and substantive due process violations, and those claims are therefore moot.

By contrast, the court has already found that various provisions of the Sign Ordinance were likely constitutionally infirm content-based regulations of free speech and that the provision granting City officials unbridled discretion to grant or deny permit applications perhaps constituted an unlawful prior restraint on Covenant’s First Amendment rights, all without requiring a showing of a vested right in a permit. Covenant Media, 2005 WL 2277313 at *4. Covenant thus may seek to recover damages based on the City’s past enforcement of the Sign Ordinance in violation of its right to free speech irrespective of whether it possessed a property interest in a permit. Accordingly, its claim for damages on these claims is not moot.

II. Standing

The doctrine of standing is another core component of Article Ill’s case or controversy requirement. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To prove standing, a plaintiff must show (1) injury in fact, (2) a causal connection between the injury and the conduct complained of; and (3) ' a likelihood that the injury will be redressed by a favorable decision. Id. at 560-61, 112 S.Ct. 2130.

A. Covenant’s As-Applied Challenge

The City argues that Covenant lacks standing to mount an as-applied challenge to the provisions of the Sign Ordinance because it cannot satisfy the injury in fact element. Specifically, the City contends that although, the court previously found that Covenant had sufficiently pled that it was injured as a result of the denial of its permit application, Covenant has failed at the summary judgment stage of the proceedings -to substantiate those allegations with affidavits or other evidence of specific facts.

The City’s argument that Covenant has failed to comply with Local Rule 56.1 is certainly valid.9 But as Covenant points *977out, courts have found that the denial of a plaintiffs application for a permit alone satisfies the injury in fact element of standing without a further showing of injury. See Lockridge v. City of Oldsmar, Fla., 2005 WL 2785233 (M.D.Fla. Sept.27, 2005); Advantage Media, L.L.C. v. City of Hopkins, 379 F.Supp.2d 1030, 1036 (D.Minn.2005). Thus, since the City denied Covenant’s applications for a billboard permit, Covenant satisfies this element of standing.

Moreover, the record supports a finding of injury in fact. The City’s- own statement of material facts, paragraphs 43 — 64, sets forth the time-, labor-, and resource-intensive efforts Covenant undertook to prepare its permit applications, and these same expenditures are further detailed in the declaration of Morgan Hudgens, one of Covenant’s co-owners, submitted in support of Covenant’s motion for a preliminary injunction and incorporated by reference into its response to the City’s statement of material facts. As such, it is competent summary judgment evidence sufficient to defeat the City’s contention that there is no evidence in the record demonstrating that Covenant was injured by the City’s denial of its application.

The City next argues that Covenant lacks standing to mount an as-applied challenge because a decision in its favor would not redress its alleged injury. It relies on Harp Advertising Illinois, Inc. v. Village of Chicago Ridge, Ill., 9 F.3d 1290 (7th Cir.1993), which held that a plaintiff billboard advertiser lacked standing to challenge a village’s sign ordinance because the signs it proposed to build were also prohibited by the village’s zoning ordinance, which the plaintiff did not claim was invalid:

[Harp] lacks standing to challenge either the sign code or the zoning code, because it could not put up its sign even if it achieved .total victory in this litigation. Harp’s proposed billboard would measure 20 by 60 feet. Yet village ordinance § 4-5-10-3(A) provides that no sign may have a face exceeding 200 square feet. Harp does not contest the validity of this ordinance; its proposed billboard, six times as large as Chicago Ridge allows, therefore will never appear. This litigation is irrelevant.

Id. at 1291 (citations omitted). Since the village could block the plaintiffs sign by enforcing another, valid, ordinance, the plaintiff had no claim for damages stemming from the village’s enforcement of the allegedly unconstitutional sign ordinance. Id.

The City contends that two bodies of law independent of the Sign Ordinance would preclude the erection of Covenant’s proposed billboards: IDOT regulations and the City’s building code. Concerning the building code, the record viewed in a light most favorable to Covenant does not establish that Covenant did not comply. The City contends that Covenant failed to file such required items as soil boring tests and electrical plans certified by an Illinois engineer. The only section of the building code identified by the City, however, is section 106.2, which merely provides,

The construction documents submitted with the application for permit shall be accompanied by a site plan showing to scale the size and location of new construction and eliciting structures on the site, distances from lot lines, the established street grades and the proposed finished grades; and it shall be drawn in accordance with an accurate boundary line survey.

*978The court cannot infer the more onerous obligations suggested by the City from this straightforward provision.10 As for the IDOT regulations, they would not preclude the erection of Covenant’s billboards. As Covenant points out, the regulation at 92 111. Admin. Code § 522.30 merely provides that signs located within 660 feet of interstate highways may not be erected until a permit has been issued by IDOT. Since Covenant proposed to locate its billboards beyond the IDOT boundary, it correctly concludes that IDOT did not require it to obtain an IDOT permit.

The City next argues that, even if some other valid, enforceable law would not prohibit the erection of Covenant’s billboards, valid, severable provisions of the Sign Ordinance would. The City contends that section 11.6(B), which prohibits the erection of billboards not located within 660 feet of the Interstate Highways, justifies the denial of Covenant’s applications.11 Since it is undisputed that eleven of the twelve billboards proposed by Covenant are more than 660 feet from the Interstate Highways, the City contends that this provision would preclude Covenant from obtaining redress even if the remainder of the Sign Ordinance is invalidated. Covenant does not dispute that its application failed to comply with the Sign Ordinance’s location restriction but argues that, since the City did not cite that deficiency in its denial letter, any effort to rely on it here is a post hoc rationalization that should be disregarded.12

It is unclear whether the City denied Covenant’s applications because it proposed billboards in unapproved locations: the City did not explicitly cite Covenant’s non-compliance with the location requirement as a basis for its decision, but did advise in the denial letters that “Plan Commission and City Coupcil action is required to amend the current City Zoning Code to create an approved location for this Billboard sign,” which implicitly suggests that Covenant’s applications did not comply with the location requirement since there was no suggestion that Covenant’s proposed locations were inappropriate for any other reason than their distance from *979the Interstate Highways. Regardless, the City’s present identification of Covenant’s non-compliance with the location requirement does not constitute an impermissible post hoc rationalization. There is nothing in the City’s denial letters to suggest that the City intended them to be a complete and final statement regarding its evaluation of Covenant’s applications’ compliance with all relevant laws. In fact, the City’s denial letters explicitly stated that, since Covenant’s applications were incomplete, the City was denying Covenant’s applications without fully considering them.13 It would be unfair to regard the City’s later identification of other deficiencies in Covenant’s applications as post hoc rationalizations when the City expressly reserved the right to conduct a more thorough review of them once Covenant had submitted additional materials. To find otherwise would would force municipalities to conduct an exhaustive review of a prospective permit-tee’s application no matter how incomplete and to make a hypothetical assessment of compliance with all relevant laws even where the application lacks information pertinent to that determination.

Other courts have similarly considered deficiencies in a billboard advertiser’s application that were not specifically identified by a municipality at the time of its denial decision when evaluating the advertiser’s standing. In Lockridge, 2005 WL 946880, *2, the city denied the plaintiffs applications for failure to comply with the city’s sign ordinance requirements. On summary judgment, the city argued that some of the plaintiffs applications were also precluded by the city’s, zoning ordinance. The court agreed, and then presumed without discussing, that the city would have denied those applications on that basis even if the sign ordinance had not been in effect. As a consequence, the court concluded that a decision invalidating the sign ordinance would not redress plaintiffs injury with respect to those applications since it would not have received a permit even in the absence- of the sign ordinance. Similarly, in Get Outdoors II, L.L.C. v. San Diego, 381 F.Supp.2d 1250 (S.D.Cal.2005), the city denied the plaintiffs permit applications because they proposed new advertising display signs, but submitted in support of its motion for summary judgment the affidavit of a competent city official outlining additional deficiencies in the plaintiffs applications, including that none complied with the challenged sign ordinance’s size restrictions. Since the plaintiff had failed to cite any authority requiring the city to list in its denial letter all of the reasons why an application is deficient, the court concluded that the plaintiff could not satisfy the redressability element of standing because its proposed billboards were too large and thus would never be approved even if other severable -provisions of the sign ordinance were invalidated.14

*980In this case, there is no genuine issue that, even if the City did not initially deny Covenant’s applications for failure to comply with the location restriction, it would have eventually. It is undisputed that Covenant’s applications contemplated billboard locations more than 660 feet from the Interstate Highways and that such locations were prohibited by the Sign Ordinance. It would be unreasonable to presume that such an obvious defect in Covenant’s applications would have been overlooked by the City; Covenant has presented no evidence to suggest that any City official had the discretion to simply waive the location requirement;15 and though Section 3.6-2 of the Sign Ordinance authorized the City Council to grant major variations from the ordinance, Covenant has presented no evidence that it could have satisfied the standards and conditions imposed by the Zoning Ordinance to have qualified for a major variation. As such, even drawing all reasonable inferences in Covenant’s favor, Covenant’s applications would have been denied because they proposed billboard locations more than 660 feet from the Interstate Highways.

Covenant contends that Section 3.7, which empowers the City Council to amend the text of the Sign Ordinance, creates an issue of fact as to whether the City would have amended the Sign Ordinance to delete the location requirement or expand the definition of permissible areas in order to permit its proposed billboards. The fact that the City could have amended the Sign Ordinance is not by itself evidence that it would have. A contrary rule would allow any applicant to get its case to a jury based on speculation alone. Likewise, the fact that the City Council has exercised its power to amend the Sign Ordinance on at least two occasions to increase the number of available permits is also insufficient to permit an inference that the City would not have strictly enforced the location requirement. Presumably, limitations on the number and location of billboards serve different purposes: the former to manage the impact of the billboards on motorists traveling on the Interstate Highways, the latter to minimize the intrusiveness of the billboards on the City’s residents. Since only residents vote in City elections, the City Council would be confronted with a much different calculation when deciding whether to amend the *981Sign Ordinance to further impose on its residents. Thus, it simply cannot be inferred that because the City has seen fit to further populate the roadsides of the Interstate Highways that it would do the same to the City’s open fields, residential lawns, and local thoroughfares. Moreover, an amendment to expand the permissible areas would have general significance and application, allowing all future applicants to take advantage of the relaxed location requirements. An amendment to increase the number of available permits, on the other hand, is more akin to a variance, since the City can easily ensure that only the applicant seeking the amendment benefits from it. For that reason, too, the City’s history of amending the Sign Ordinance to increase the number of permits is not probative on the question of whether it would have amended the location requirements.

Finally, the fact that six billboards are. presently located more than 660 feet from the Interstate Highways is inconsequential, because absent a showing that a City ordinance in effect at the time the applications for those billboards were filed was specifically amended to authorize the erection of a billboard in otherwise unapproved locations, there is no basis to infer that the City does not consistently enforce the Sign Ordinance’s location requirements. Furthermore, the City has put'forth a nonpretextual justification for each of the billboards located outside of the 660 feet corridor along the Interstate Highways that conclusively rebuts Covenant’s urged inference. According to the supplemental affidavit of David Wiltse, the City Attorney, for the City, the six billboards located more than 660 feet from the Interstate Highways identified by Covenant were not erected pursuant to a variance granted under Section 11.3-3(0 of the Sign Ordinance, but rather as a part of a settlement agreement with Universal Outdoor in Universal Outdoor v. City of Des Plaines, Case No. 86 CH 7012, Circuit Court of Cook County, Illinois, which was finalized on July 14, 1989, nearly nine years before the enactment of the Sign Ordinance.16,17 *982Wiltse further avers that no applications were submitted for any of the - six billboards, and no permit was issued. In light of these unrebutted averments, there is no evidence in the record showing that the City Council has ever exercised its power to amend the Sign Ordinance to allow billboards to be erected outside the permissible corridor along the Interstate Highways as set forth in section 11.6(B) of the Sign Ordinance.

The court, therefore, concludes that the City has established as a matter of law that it would have denied eleven of the twelve applications submitted by Covenant, at least in part, based on the Sign Ordinance’s prohibition on billboards located more than 660 feet from the Interstate Highways.18

The next question is whether the Sign Ordinance provisions that the City would have relied on to deny Covenant’s applications are constitutional. “Time, place- or manner” restrictions “are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). The location and zoning classification restrictions at issue in this case, when considered in isolation from the remainder of the ordinance, are content-neutral, consistent with the Sign Ordinance’s stated purpose and intent of preventing over-development and encouraging the compatibility between different land uses, and the Sign Ordinance preserves alternative channels for billboard advertising by permitting the erection of billboards along the Interstate Highways.

Having now concluded that the City would have denied Covenant’s applications because of the location and zoning classification restrictions even in the absence of any of the other provisions of the Sign Ordinance challenged by Covenant in this case, and that the location and zoning classification restrictions are constitutional limitations on Covenant’s First Amendment rights, the court’s only remaining task is to determine whether those provisions may be severed from the remainder of the Sign Ordinance, portions of which *983the court has already found were likely constitutionally infirm. See Covenant Media of Ill., L.L.C. v. City of Des Plaines, Ill., 2005 WL 2277313, *7 (N.D.Ill.2005). Covenant contends that the court has already found that they may- not. In the decision denying the City’s motion to dismiss, the court expressly reserved judgment on severability:

“Because the court’s inquiry was limited to determining whether Covenant stated a claim, the court did not address each constitutional challenge to the Sign Ordinance raised by Covenant. The court defers any decision regarding severability until there is a final determination as to the constitutionality of all the challenged provisions.”

Covenant Media of Ill., L.L.C. v. City of Des Plaines, Ill., 391 F.Supp.2d 682, 695 (N.D.Ill.2005). Following the enactment of the Amended Sign Ordinance, the court granted Covenant’s motion for a preliminary injunction, finding that Covenant was likely to prevail on its claim that severance of the constitutionally infirm provisions was inappropriate:

“In this case, the Amended Sign Ordinance has established a system to regulate the posting of signs and billboards through the issuance of permits and the imposition of fees to cover the costs of regulation and supervision. Additionally, the Amended Sign Ordinance requires that the City -Manager, City Council, and Mayor all participate in the process and approve negotiated agreements before issuing permits to post billboards. In light of the importance of the fees and the approval of City officials, the court cannot conclude that the City would have passed the Sign Ordinance without the unconstitutional provisions, especially after City officials failed to alter these sections in the Amended Sign Ordinance. As a consequence, the court finds that Covenant has demonstrated a likelihood of success in establishing that the Amended Sign Ordinance is null and void in its entirety.”

Covenant Media of Ill., L.L.C. v. City of Des Plaines, Ill., 2005 WL 22-77313, *7 (N.D.Ill.2005). The court’s finding was not final, however, rather' just- a forecast of what was likely to occur on final disposition, and it was predicated on the assumption that the City Council would not have passed the Sign Ordinance without the offensive provisions. That assumption has since been conclusively undermined by the enactment of the Second Amended Sign Ordinance, which eliminated those provisions. Accordingly, it is appropriate for the court to reconsider the issue of sever-ability.

The severability of a local ordinance is a question of state law. See Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 772, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). Under Illinois law, the determination of whether an invalid section of an ordinance dooms the remainder of an ordinance is a question of legislative intent. “The settled and governing test of severability is whether the valid and invalid provisions of the Act are so mutually connected with and dependent on each other, as conditions, considerations or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass, the residue independently.” Waicekauskas v. Burke, 336 Ill.App.3d 436, 441, 784 N.E.2d 280, 271 Ill.Dec. 62 (2002) (citations, ellipsis, and internal quotation marks omitted). Here, it is clear from the City’s amendments of the Sign Ordinance to remove the putatively unconstitutional provisions that it intended the location and zoning classification restrictions to stand by themselves. That conclusion is buttressed by the Sign Ordinance’s severability clause, which, though not dispositive, *984alone establishes a presumption that the City intended the invalid provisions to be severed. Id.

Because the location and zoning classification restrictions are severable and independently enforceable, Covenant cannot demonstrate that it has suffered a redress-able injury due to the City’s denial of its application based, in part, on the putatively unconstitutional-provisions of the Sign Ordinance. The City would have denied Covenant’s applications either because they proposed billboards locations more than 660 feet from the Interstate Highways or in areas zoned for “single family residences.” Since the enforcement of those constitutional provisions justifies the City’s denial of Covenant’s applications, Covenant was not deprived anything to which it was otherwise entitled. Covenant is, therefore, entitled neither to erect its proposed billboards nor to damages. As such, Covenant cannot satisfy the redress-ability element for standing. Accordingly, the court must dismiss Covenant’s suit for lack of jurisdiction unless its facial standing stands.

B. Facial Challenge

Covenant does not have Article III standing to assert the rights of third parties who may be affected by the putatively unconstitutional provisions of the Sign Ordinance. “To avoid chilling the speech of third parties who may be unwilling or unlikely to raise a challenge in their own stead, the overbreadth doctrine in certain circumstances permits litigants already before the court to challenge a regulation on its face and raise the rights of third parties whose protected expression is prohibited or substantially burdened by regulation.” Schultz v. City of Cumberland, 228 F.3d 831, 848 (7th Cir.2000). A plaintiff asserting a facial overbreadth challenge must, however, still satisfy all of the constitutional standing requirements as to the statutory provision that it challenges. See Harp, 9 F.3d at 1291-92 (plaintiff advertiser lacked standing to facially challenge sign ordinance because its inability to erect billboard would not be redressed by a favorable decision since an unchallenged portion of the sign ordinance would prohibit its erection); CAMP Legal Defense Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 2006 WL 1623279, *12 (11th Cir. June 13, 2006) (rejecting contention that injury under one provision of a challenged sign ordinance confers standing on plaintiff to challenge all provisions of an allegedly unconstitutional ordinance).

In this case, Covenant can show neither that the injury it suffered as a result of the denial of its applications is causally connected to the provisions of the Sign Ordinance it challenges nor that a favorable decision would redress its injury. The court has already concluded that the City would have denied Covenant’s applications because it does not permit the erection of billboards more than 660 feet from the Interstate Highways or in residential zoning districts. While Covenant asserts that the City’s decision was based on Covenant’s election not to participate in the Sign Ordinance’s discretionary approval process or to seek a text amendment under Section 3.7, there is no evidence in the record to support those allegations. Covenant is thus unable to demonstrate either a causal nexus between its injury and the provisions of the Sign Ordinance it challenges or that a favorable decision would redress- its injuries. As such, Covenant lacks standing to assert an over-breadth challenge on behalf of third parties.19 See Midwest Media Property, L.L.C. v. Symmes Township, Ohio, 2006 *985WL 2347489, *6 (S.D.Ohio May 22, 2006) (plaintiff advertiser lacked standing to facially challenge sign ordinance because it could not show an actual injury in fact where unchallenged sign ordinance’s height and size restrictions precluded its proposed billboards); Advantage Media, L.L.C. v. City of Eden Prairie, 405 F.Supp.2d 1037, 1042-43 (D.Minn.2005) (plaintiff could not satisfy redressability element of standing because it did not specifically challenge the sign restrictions that caused the denial of its applications); Get Outdoors II, L.L.C. v. City of San Diego, 381 F.Supp.2d 1250, 1259 (S.D.Cal. 2005) (plaintiff lacked standing to assert overbreadth challenge because its application did not comply with the sign ordinance’s unchallenged size restrictions). Accordingly, the court must dismiss Covenant’s case for lack of jurisdiction.20

ORDER

For the reasons stated above, the City’s motion for summary judgment [# 58] is granted. Covenant’s motion to strike [# 75] is denied on the merits in part and as moot in part. The clerk is instructed to enter judgment in favor of defendants. This case is terminated.

Covenant Media of Illinois, L.L.C. v. City of Des Plaines
476 F. Supp. 2d 967

Case Details

Name
Covenant Media of Illinois, L.L.C. v. City of Des Plaines
Decision Date
Mar 7, 2007
Citations

476 F. Supp. 2d 967

Jurisdiction
United States

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