                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

Nos. 05-2515 & 06-2672
G ENERAL A UTO SERVICE STATION, et al.,
                                               Plaintiffs-Appellants,
                                  v.

C ITY OF C HICAGO,
                                                 Defendant-Appellee.
                          ____________
            Appeals from the United States District Court
        for the Northern District of Illinois, Eastern Division
            No. 00 C 368—Rebecca R. Pallmeyer, Judge.
                          ____________
        A RGUED JUNE 4, 2007—D ECIDED M AY 16, 2008
                          ____________


  Before R IPPLE, R OVNER, and SYKES, Circuit Judges.
  R OVNER, Circuit Judge. The plaintiffs-appellants are the
owners and the agent of a building in Chicago that for
more than four decades has displayed an advertising
sign without a permit. Current zoning provisions prohibit
the sign given its size and proximity to a residential
district, but the plaintiffs contend that because the sign
was lawful when first erected, they have a right to continue
displaying the sign. After the City of Chicago declared the
sign unlawful and ordered it removed, the plaintiffs-
appellants filed suit under 42 U.S.C. § 1983 challenging the
2                                     Nos. 05-2515 & 06-2672

City’s action on a variety of constitutional grounds. The
district court resolved the suit in the City’s favor. We
affirm.


                               I.
  Bernard A. Heerey purchased the building located at
1127-33 North State Street in Chicago in 1961. Pursuant to
a 1984 trust agreement, Cosmopolitan Bank and Trust
now holds legal title to the property. Heerey assigned
his beneficial interest in the property to General Auto
Service Station,1 an Illinois corporation which in 1998
merged with and into General Auto Service Station LLC
(collectively, “GASS”). F.A.Y. Properties, Inc. (“F.A.Y.”) is
an Illinois corporation that acts as an agent and lessor for
GASS. Heerey was the sole owner of both GASS and F.A.Y.
Heerey died in 1999 at the age of 79 without immediate
family to survive him. The terms of his will provide that
once certain bequests are made, the assets in his estate,
which include a number of properties on Chicago’s north
side, are to be placed in a charitable trust in order to
fund distributions to religious and charitable organiza-
tions. As of the date this case was tried in December 2004,
the probate of Heerey’s estate was ongoing and the trust
had not yet been funded.
  The south exterior wall of the building at 1127-33 North
State Street is a desirable location for advertising. The



1
  The name of the corporation was a holdover from a time
when Heerey and his parents owned an automobile parts
business on Chicago’s north side. Heerey closed that business in
the 1960s.
Nos. 05-2515 & 06-2672                                        3

building is four stories tall, and soon after Heerey pur-
chased the property, the buildings to its immediate south
were torn down, eventually to be replaced by a one-story
building. As a result, the exposed south wall of the build-
ing at 1127-33 North State is visible to motorists and
pedestrians passing through the nearby intersection of
North Rush and State Streets, in the heart of Chicago’s
Gold Coast.
  In 1962, Heerey, without first seeking or obtaining a
permit from the City, had an advertising sign painted on
the south wall of the building. That wall has been con-
tinuously used for advertising since that time. In the
ensuing years, Heerey and later GASS, through F.A.Y.,
leased the advertising space on the building to a variety of
entities, including Whiteco Industries, Inc., whose suc-
cessor, Lamar Advertising Company, holds the current
lease. We shall refer to these lessees collectively as
“Whiteco.” For the one-year period ending July 14, 2008,
GASS is being paid $99,074.48 for the lease of the sign.
  When Heerey first began using the side of his building
for advertising in 1962, section 86.1-4 of the City’s electrical
code provided in relevant part that “[i]t shall be unlaw-
ful to proceed with the erection, enlargement, alteration
or rehang of any illuminated sign or illumination of
signboard unless a permit therefore shall have first been
obtained from the Commissioner of Buildings.” The dis-
trict court understood this language to require a permit
only for an illuminated sign. Because the original sign on
Heerey’s building was not illuminated, the court con-
cluded that no permit was required. R. 126 at 16. The City
accepts that ruling for purposes of this appeal, as do we.
 At all times relevant to this suit, the property at 1127-33
North State Street has been located within a district zoned
4                                   Nos. 05-2515 & 06-2672

by the City for business use. However, the sign on the
south wall of the building has always been within 75 feet
of a district zoned for residential use.
  As of 1962, section 8.9(5) of the City’s zoning ordinance
prohibited advertising signs “within 75 feet of any prop-
erty in a Residence District.” The district court took the
phrase “any property” in this provision to mean any
improved property. Although the sign on Heerey’s build-
ing is within 75 feet of a residential district, when first
erected it was not within 75 feet of any improved prop-
erty in such a district. Consequently, the court assumed
that the sign was lawful when first painted on Heerey’s
building. R. 126 at 15. Although the City contested this
point below, it has not quarreled with the district court’s
assumption for purposes of this appeal. Consequently,
we like the district court shall assume that the sign was
lawful when first erected.
   In subsequent years, however, Heerey made two
changes vis-à-vis the advertising on his building for
which a permit was indubitably required under the then-
governing terms of the City’s electrical code. First, at some
point between 1962 and 1969, Heerey illuminated the sign
by installing lights near the roof line of his building.
Section 86.1-4 of the code, which we quoted from above,
required that a permit be issued by the Commissioner of
Buildings for, among other things, the “erection” of an
illuminated sign and the “illumination of signboard.”
Second, between 1975 and 1979, Heerey allowed the lessee
of the advertising space on his building to combine what
had been two signs into a larger, single sign by covering
the building windows that had separated the two signs.
Then, in 1979, that sign was enlarged to its current dimen-
sions of 26 feet by 59 feet. These changes again triggered
Nos. 05-2515 & 06-2672                                         5

the permit requirement of section 86.1-4, which applied to
any “enlargement” or “alteration” made to “any illumi-
nated sign.” The district court thus concluded that Heerey
was required to obtain a permit before illuminating and
enlarging the signage on his building. R. 126 at 16-17. So
far as the record reveals, Heerey did not obtain a per-
mit before he made any of these modifications.2
  In 1986, the City finally took notice that the sign lacked
a permit. On September 3 of that year, it issued a viola-
tion notice to Heerey’s property management company
asserting that the illuminated sign had been installed
without a permit in violation of section 86.1 of the
electrical code. App. 193. A hearing before the City’s
electrical compliance board was scheduled and continued
on several occasions, but the City took no further action
on the 1986 notice.
   In 1990, the provision of the City’s zoning ordinance
regarding the distance between advertising signs and
residential districts was toughened. Whereas before,
section 8.9(5) of the ordinance (as construed by the dis-
trict court) permitted no advertising sign within 75 feet
of improved property in a residential district, section 8.9(7)
of the revised ordinance now provided that “[n]o adver-
tising sign having a face which exceeds 100 square feet
shall be permitted within 250 feet of a Residence District”
and that “no advertising sign” of any size “shall be permit-
ted within 75 feet of a Residence District.” App. 237. A
“grandfather” provision, section 6.7-1(a), was added to the


2
   Although GASS’s counsel indicated at trial that the plaintiffs
believed Heerey did obtain a permit for illumination of the
sign, he conceded that GASS had been unable to locate any
such permit. R. 166 at 15, 23.
6                                     Nos. 05-2515 & 06-2672

ordinance providing that any sign not conforming to the
new distance requirements (among others) which had
been “lawfully erected pursuant to a permit lawfully
issued prior to the effective date of this section, may
remain in use as a legal non-conforming sign.” App. 227.3
  On September 29, 1994, the City issued a second viola-
tion notice to Heerey, this one charging that because the
face of the sign was larger than 100 square feet and was
within 250 feet of a residential district, the sign violated
the distance requirement adopted in 1990. App. 113.
Heerey’s attorney forwarded the notice to Whiteco and
asked that it handle the matter. Whiteco in turn sub-
mitted a permit application to the City. App. 113A. That
application was approved initially by the City’s zoning
department on January 12, 1995. Zoning employee William
Merritt determined that the sign was a “legal non-con-
forming” use, and he therefore stamped the permit ap-
plication to indicate that the sign “conforms to zoning
ordinance.” App. 107 ¶ 36, App. 113B. At that point, the
approval of the City’s building department was required,
and Whiteco submitted its permit application to that
department for review. However, for any sign that ex-


3
  In 2004, the City eliminated the distinction for grand-
fathering purposes between permitted and non-permitted
signs. Section 6.7-1(a) was repealed and replaced by two new
provisions, found at sections 17-15-0502 and 17-15-0503 of
Chicago’s Municipal Ordinance, which collectively permit a
non-conforming sign to remain in use so long as the sign
complied with the zoning and sign regulations in effect at the
time the sign was established. As it is section 6.7-1(a) that is
relevant for purposes of GASS’s appeal, we shall refer exclu-
sively to this section and speak of it in the present tense,
although it has since been superseded.
Nos. 05-2515 & 06-2672                                  7

ceeded 100 square feet in size, the municipal code re-
quired City Council approval in addition to a permit. App.
285. On April 19, 1995, the building department noted
on a “plan correction sheet” issued to Whiteco that a
copy of the Council’s order approving the sign “must be
attached to the permit application.” App. 208. Whiteco
had written to the City alderman whose ward included
the State Street property one week earlier requesting
his support and assistance in obtaining such approval.
But for reasons that the record does not reveal, Whiteco
never obtained an order from the City Council approving
the sign. For its part, the City took no further action on
Whiteco’s 1994 permit application.
  On August 22, 1997, the City issued a third notice of
violation to Heerey’s property management company
directing Heerey to “[o]btain permit for outdoor flat
building sign installed without permit.” App. 108 ¶ 40;
App. 116. Heerey’s attorney again forwarded the notice
to Whiteco asking that it handle the matter. Whiteco
appeared as the respondent before the City’s Department
of Administrative Hearings on September 30, 1997, and
admitted that it was not in compliance with the permit
requirement. The hearing officer entered the following
findings and order:
   Respondent is found to be in violation of the Chicago
   Building Code with regards to the afore stated charges;
   however, Respondent afforded opportunity of mitiga-
   tion via compliance. Compliance must be evidenced
   by reinspection and/or other evidence corroborating
   conditions. This matter is continued for hearing on
   fines . . . .
App. 117 (footnote omitted).
8                                    Nos. 05-2515 & 06-2672

  Whiteco subsequently attempted to bring the sign into
compliance with the building code by applying for a
permit, but its efforts met with failure. On April 21, 1998,
the City’s Zoning Administrator denied zoning certifica-
tion for the sign on the grounds that the sign violated
the provision of the zoning ordinance regarding the
proximity of signs to residential districts and was not
grandfathered because there was no prior permit for the
sign on file. Given the lack of zoning certification, the City
did not issue a permit for the sign. Whiteco appealed
the denial of zoning certification to the City’s Zoning
Board of Appeals (“ZBA”), but the ZBA sustained the
denial on September 14, 1998.
   The following month, a City hearing officer entered a
final order on the 1997 notice of violation imposing a
fine of $250 and ordering Whiteco to remove the sign
within 90 days in the event it did not obtain a permit. App.
161. By the terms of the City’s zoning ordinance, GASS as
the (effective) owner of the property is liable for the
violation to the same extent as its lessee, Whiteco. The
City’s order has yet to be enforced; to this day, Whiteco’s
successor continues to lease the sign and display adver-
tising on the south wall of GASS’s building.
  Whiteco filed suit in the Circuit Court of Cook County
seeking judicial review of the ZBA’s decision, arguing
in part that the ZBA had overlooked the fact that no
permit had been required when the sign was first erected
in 1962 and that, consequently, the sign qualified as a
legal, non-conforming use under the grandfather provi-
sion of the zoning ordinance. The Circuit Court denied
review on March 2, 2000. The court found that Whiteco
had failed to present any evidence to the ZBA in support
of the notion that the sign constituted a legal, non-conform-
Nos. 05-2515 & 06-2672                                         9

ing use. Whiteco appealed, but the Illinois Appellate Court
affirmed in September 2001 and the Illinois Supreme Court
subsequently denied Whiteco’s petition for leave to appeal.
  In the meantime, GASS, as the owner of the property,
was seeking relief of its own. Late in 1999, GASS filed a
declaratory judgment action in state court challenging
the relevant provisions of the zoning ordinance and the
City’s failure to grant it a permit in 1994 on a variety of
grounds. At the same time, GASS sought leave to inter-
vene in Whiteco’s action so that it too could challenge
the ZBA’s refusal to order zoning certification for the
sign. The state court denied GASS’s request to intervene
in Whiteco’s suit,4 and GASS eventually dismissed its own
state-court suit in favor of the instant federal suit.
  GASS (along with F.A.Y. and Cosmopolitan Bank, but
for the sake of simplicity, we shall refer only to GASS) filed
this section 1983 action against the City in January 2000.
GASS’s second amended complaint 5 asserted a variety of


4
  There is a dispute between the parties as to whether the
City opposed GASS’s petition for leave to intervene in Whiteco’s
suit. We were led to believe in Gen. Auto Serv. Station LLC v.
City of Chicago, 319 F.3d 902, 905 (7th Cir. 2003), which we
discuss below, that the City actively had opposed GASS’s
petition. The City contends that we were mistaken in that
regard, although GASS and the other appellants do not share
that view. We need not resolve this dispute for purposes of
the instant appeal.
5
  GASS filed the second amended complaint with the district
court’s permission after the bench trial had concluded, in order
to conform the allegations to the evidence. For the sake of
convenience, we shall refer to that version of the complaint,
                                                   (continued...)
10                                  Nos. 05-2515 & 06-2672

constitutional claims, four of which are pursued in this
appeal. First, GASS asserted that the advertising sign
constituted commercial speech that was not misleading
and which the City had no legitimate or substantial inter-
est in restricting or prohibiting. The City’s invocation of
its zoning ordinance to prohibit the sign therefore deprived
GASS of its rights under the First Amendment to the U.S.
Constitution. R.122, Count I. Second, GASS contended that
the City, in failing to process its 1994 application for a
permit, violated its right to procedural due process under
the U.S. Constitution. Id., Count II. Third, GASS asserted
that in refusing to recognizing its sign as a lawful, non-
conforming use under the grandfather provision found in
section 6.7-1 of the zoning ordinance, the City had applied
its laws in a way that did not promote the public health,
safety, morals, or general welfare and therefore had
deprived GASS of substantive due process under the U.S.
Constitution. Id., Count III. Fourth, GASS claimed that the
City’s application of the 1990 zoning provisions, and
its refusal to grandfather the sign, amounted to a retroac-
tive application of laws enacted after the sign’s erection
that deprived GASS of its vested property and contractual
rights in a harsh, oppressive, and arbitrary manner,
thereby again depriving GASS of its right to substantive




5
  (...continued)
which includes the First Amendment and procedural due
process claims that the court had dismissed prior to trial in
addition to the substantive due process claims that the court
disposed of after trial.
Nos. 05-2515 & 06-2672                                             11

due process. Id., Count IV.6 GASS sought a declaratory
judgment on each of its claims and an injunction barring
the City from enforcing the zoning ordinance as to its
sign and/or requiring the City to issue a permit for the
sign.
  Initially, the district court dismissed the suit without
prejudice, abstaining pursuant to Younger v. Harris, 401
U.S. 37, 91 S. Ct. 746 (1971), in deference to Whiteco’s then-
ongoing suit for administrative review in state court. R. 37,
2001 WL 558148; R. 44, 2002 WL 221582. We reversed
that dismissal in Gen. Auto Serv. Station LLC v. City of
Chicago, 319 F.3d 902, 905 (7th Cir. 2003). We reasoned
in relevant part that because GASS’s request to intervene
in Whiteco’s state court action had been denied, GASS
had not had the opportunity to defend its interests as the
owner of the property in that action. Id. at 905.
  On remand, the district dismissed GASS’s First Amend-
ment and procedural due process claims. The court
concluded that the real focus of the First Amendment claim
was on the distinction that the grandfather provision



6
   In addition to its federal claims, GASS asserted parallel state
claims under the pertinent provisions of the Illinois Constitu-
tion, although the state claims have not been discussed on
appeal. Illinois courts apply a limited version of the lockstep
doctrine, adhering to U.S. Supreme Court precedent con-
cerning the federal constitution when interpreting cognate
provisions of the state constitution. See People v. Colon, 866
N.E.2d 207, 223 (Ill. 2007) (citing People v. Caballes, 851 N.E.2d 26,
42 (Ill. 2006)). In the absence of any argument to the contrary,
we may assume that our analysis as to GASS’s federal con-
stitutional claims would also apply to its state constitutional
claims.
12                                   Nos. 05-2515 & 06-2672

drew between signs erected pursuant to a permit and
signs, like GASS’s, which were erected at a time when no
permits were required. As such, the court reasoned, this
claim was nothing more than a restatement of GASS’s
separate substantive due process claim.
     Plaintiffs claim that the zoning ordinance violates
     the First Amendment because it allows advertising
     signs that pre-dated the 1990 amendments and which
     now violate those amendments to remain only if the
     signs were initially erected pursuant to a permit,
     regardless of whether such a permit was even re-
     quired at the time the sign was erected. Plaintiffs’ sign
     happens to be an advertising sign, but the provisions
     they really challenge here—the legal, non-conforming
     use and permit provisions, by which the City only
     “grandfathers in” those signs that were issued pursu-
     ant to a permit—apply to all signs, not just advertising
     signs. Plaintiffs nowhere argue that the size and
     distance restrictions on advertising signs found in
     Section 8.9(7) will not pass constitutional muster. Thus,
     the court agrees with the City that the Plaintiffs’
     challenge is not aimed at the ordinance’s regulation
     of commercial speech.
     Moreover, as the court noted in its earlier decision
     [dismissing the suit on abstention grounds], “Plaintiffs’
     First Amendment argument is nothing more than a
     restatement of its arguments that the City’s refusal to
     ‘grandfather’ Plaintiffs’ sign deprives it of due pro-
     cess.” General Auto Service Station, 2001 WL 558148, at
     *6. Plaintiffs cannot convert what is essentially a due
     process claim into one under the First Amendment
     merely by noting that theirs is an advertising sign.
     Plaintiffs have not effectively alleged a First Amend-
     ment Challenge to the zoning ordinance . . . .
Nos. 05-2515 & 06-2672                                    13

R. 93, 2004 WL 442636, at *4-*5. The court found the
procedural due process claim to be untimely. That claim
was based on the City’s purported failure to process
Whiteco’s 1994 permit application. But GASS knew by
August 1997, when the City issued yet another notice of
violation, that the City had not processed the 1994 applica-
tion. Consequently, in the court’s view, the two-year
statute of limitations on this claim began to run no later
than August 1997 and had expired well before GASS
filed this suit in January 2000. Id. at *8 The court rejected
the City’s contention that the substantive due process
claims were also untimely. Id. at *9.
  The district court conducted a one-day bench trial on
the substantive due process claims, and ultimately found
in favor of the City on those two claims. The court ruled
in the first instance that the claims were time barred,
contrary to its earlier holding on the motion to dismiss.
Both claims were focused on the City’s preferential treat-
ment of non-conforming signs that were erected with a
permit. However, as with the procedural due process
claim, the court concluded that the August 1997 notice
of violation put the plaintiffs on notice that the City was
not treating the non-permitted sign as grandfathered.
“Though the Zoning Administrator did not officially deny
Whiteco’s 1998 permit application until April 21, 1998,
Plaintiffs knew the circumstances that support the
claim they are presenting here—i.e., the differential
treatment of permitted and non-permitted legal, non-
conforming signs—by September 1997” when Heerey’s
attorney forwarded the 1997 violation notice to Whiteco. R.
126 at 12. Therefore, GASS was obliged to file suit on
these claims no later than September 1999, which it did not.
Id. The court ruled alternatively that the claims failed on
14                                  Nos. 05-2515 & 06-2672

their merits. The premise of these claims was that be-
cause no permit was required when GASS erected its
sign, the sign constituted a legal, non-conforming use
just as if it had been erected with a permit. For that rea-
son, in GASS’s view, it was irrational to treat permitted
signs differently from non-permitted signs for purposes
of the grandfather provision. But GASS was wrong in
characterizing its sign as a legal non-conforming use, the
court found. Although a permit was not required when
Heerey installed the first sign in 1962, a permit was re-
quired when he later illuminated and enlarged the sign,
and a permit had never been obtained. Id. at 16-17. GASS
rejoined that the permit requirement as it existed at those
times amounted to an unconstitutional prior restraint on
speech and should be treated a nullity (rendering its non-
permitted sign legal) but the court was not convinced.
“Plaintiffs have not explained how Chapter 86.1, which at
all relevant times applied to all illuminated signs and not
just to advertising signs, constitutes a regulation of com-
mercial speech sufficient to implicate the First Amend-
ment.” Id. at 17.
  GASS moved to amend the judgment, challenging the
court’s rationale in disposing of the substantive due
process claims, but the court denied the motion. The
court reiterated that GASS was made aware by the 1997
violation notice that the City would not deem its sign
covered by the grandfather clause, thus obligating GASS
to file suit no later than 1999. R. 144, 2006 WL 1460017, at
*2-*3. As to the merits, the court again rejected GASS’s
contention that the permit requirement, as it existed in
the 1960s and 1970s when GASS’s sign was illuminated
and then expanded, constituted an unlawful prior re-
straint on speech. The court pointed out that a key danger
Nos. 05-2515 & 06-2672                                     15

posed by licensing schemes that grant unfettered discre-
tion to government officials is that a potential speaker will
be intimidated into censoring his own speech. Id. at *4
(citing City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S.
750, 759, 108 S. Ct. 2138, 2144 (1988)). That danger was not
implicated here: the permit applied only to illuminated
signs, leaving non-illuminated signs open as an alternative
outlet for unregulated speech; and, at the same time, the
permit requirement applied to all illuminated signs,
drawing no distinctions between commercial and non-
commercial speech. Id. at *5. Finally, the court rejected as
untimely GASS’s argument, made in a supplemental brief
in support of the motion to amend, that it retained, at a
minimum, a vested property interest in the sign in a non-
illuminated, un-enlarged state given that no permit was
required when Heerey first erected the sign in 1962. “This
is the first time that Plaintiffs have claimed a property
interest in the Wall Sign other than as currently con-
figured, and Plaintiffs make no attempt to explain why
they failed to raise this claim . . . previously.” Id. The
court noted alternatively that GASS had never firmly
established that its sign as originally erected truly complied
with all applicable ordinances. Id. The court had assumed
that the sign was consistent with the pre-1990 version of
the zoning ordinance, but GASS had never actually
proven to the satisfaction of the court that the sign was
in fact legal in its non-illuminated, non-enlarged state. Id.


                             II.
A. Substantive Due Process
  GASS has asserted two claims for deprivation of its
Fourteenth Amendment right to substantive due process.
16                                    Nos. 05-2515 & 06-2672

See generally County of Sacramento v. Lewis, 523 U.S. 833,
840, 118 S. Ct. 1708, 1713-14 (1998).
     The claim that a person is entitled to “substantive due
     process” means, as we understand the concept, that
     state action which deprives him of life, liberty, or
     property must have a rational basis—that is to say,
     the reason for the deprivation may not be so inade-
     quate that the judiciary will characterize it as “arbi-
     trary.” . . .
Jeffries v. Turkey Run Consol. Sch. Dist., 492 F.2d 1, 3-4 (7th
Cir. 1974) (Stevens, J.). See also Indiana Land Co. v. City
of Greenwood, 378 F.3d 705, 711 (7th Cir. 2004).
   Both of GASS’s due process claims are premised on the
notion that its sign was an established and lawful use of
its property before the City’s zoning ordinance was
modified in 1990 to prohibit advertising signs within 250
feet of a residential district, and that, consequently, GASS
has a vested property interest in continuing to display
its sign of which it may not be deprived without substan-
tive due process. For purposes of a due process claim,
property interests are created and defined by an independ-
ent source, such as a contract or state law. E.g., Miyler v.
Vill. of E. Galesburg, 512 F.3d 896, 898 (7th Cir. 2008) (citing
Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 92 S. Ct.
2701 (1972)). Illinois case law recognizes that a property
owner can acquire a property interest in continuing a
land use that was lawful when commenced and rendered
unlawful (i.e., non-conforming) only by a subsequent
legislative enactment. See Taylor v. Zoning Bd. of Appeals of
City of Evanston, 874 N.E.2d 927, 933 (Ill. App. Ct. 2007)
(coll. cases).
  Once a landowner obtains such a state-created property
right, the due process clause of the Fourteenth Amendment
Nos. 05-2515 & 06-2672                                      17

circumscribes, but does not eliminate, the government’s
ability to deprive him of that interest. As we observed in
Lee v. City of Chicago, “[S]ubstantive due process is not ‘a
blanket protection against unjustifiable interferences with
property.’ ” 330 F.3d 456, 461 (7th Cir. 2003) (quoting
Schroeder v. City of Chicago, 927 F.2d 957, 961 (7th Cir.
1991)). And it does not confer on federal courts a license to
act as zoning boards of appeals. Ctrs., Inc. v. Town of
Brookfield, Wis., 148 F.3d 699, 704 (7th Cir. 1998); Albiero
v. City of Kankakee, 122 F.3d 417, 420 (7th Cir. 1997). It is
instead a modest limitation that prohibits government
action only when it is random and irrational. “Unless
a governmental practice encroaches on a fundamental
right, substantive due process requires only that the
practice be rationally related to a legitimate governmental
interest, or alternatively phrased, that the practice be
neither arbitrary nor irrational.” Lee, 330 F.3d at 467 (citing
Washington v. Glucksberg, 521 U.S. 702, 728, 117 S. Ct. 2258,
2271 (1997)). A property owner challenging a land-use
regulation as a violation of due process is therefore
obliged to show that the regulation is arbitrary and unrea-
sonable, bearing no substantial relationship to public
health, safety, or welfare. E.g., Greater Chicago Combine &
Ctr., Inc. v. City of Chicago, 431 F.3d 1065, 1071 (7th Cir.
2005). And because the right infringed upon is an inter-
est in property rather than life or liberty, the property
owner must first establish either an independent con-
stitutional violation or the inadequacy of state remedies to
redress the deprivation before a court will consider
whether the interference with property is arbitrary or
irrational. Lee, 330 F.3d at 467.
  In this case, GASS contends that the City’s conduct in
prohibiting its sign was arbitrary and irrational in two
18                                    Nos. 05-2515 & 06-2672

ways. It contends first that the application of the zoning
ordinance failed to promote the public health, safety,
morals, and/or welfare because it arbitrarily grandfathered
advertising signs that had been erected pursuant to a
permit but not signs for which no permit had been re-
quired. (Count III.) Second, it contends that the City’s
application of the zoning ordinance was apparently
retroactive, resulting in an infringement of GASS’s vested
property rights in a harsh and oppressive manner. Specifi-
cally, GASS notes that the City demanded in 1997 that it
obtain a permit for a sign that had been erected some
thirty years earlier, but then denied GASS’s application
for a permit based on current zoning restrictions that did
not exist when the sign was installed. (Count IV.)
  There is an initial question as to the timeliness of these
claims. The district court concluded, and the City argues
here, that the 1997 notice of violation was sufficient to
put Heerey and GASS on notice that it intended to treat
permitted and non-permitted signs differently for pur-
poses of grandfathering, and thus supplied the plaintiffs
with all of the information they needed in order to assert
a due process claim. Under that view, GASS was obliged
to file suit no later than 1999, within the two-year statute
of limitations for section 1983 claims that we have bor-
rowed from Illinois law. See, e.g., Jenkins v. Vill. of Maywood,
506 F.3d 622, 623 (7th Cir. 2007). GASS replies that it
was not yet clear in 1997 that the City would not belatedly
grant the plaintiffs a permit for the sign; indeed, in 1995,
the City zoning department had signaled an inclination to
grant such a permit when its employee Merritt character-
ized the sign as a legal non-conforming use. GASS also
makes a more fundamental contention that because it
seeks only declaratory and injunctive relief (its sign still
Nos. 05-2515 & 06-2672                                      19

exists today, so it has yet to suffer any injury for which it
might seek compensation), its substantive due process
claims are not subject to a statute of limitations. See Lavey
v. City of Two Rivers, 994 F. Supp. 1019, 1023 (E.D. Wis.
1998) (rejecting argument that section 1983 challenge to
local sign ordinance was untimely, noting that plaintiff
sought only declaratory and injunctive relief), judgment
aff’d, 171 F.3d 1110 (7th Cir. 1999); cf. Nat’l Adver. Co. v.
City of Raleigh, 947 F.2d 1158, 1168 (4th Cir. 1991) (cited in
Lavey) (“it is doubtful that an ordinance facially offensive
to the First Amendment can be insulated from challenge
by a statutory limitations period”); Maldonado v. Harris,
370 F.3d 945, 955 & n.6 (9th Cir. 2004) (seconding Fourth
Circuit’s doubts and collecting district court cases in
like vein).
  We need not resolve the timeliness question. The ex-
piration of the statute of limitations is an affirmative
defense that does not affect our subject matter jurisdiction
to hear the case. E.g., Jogi v. Voges, 480 F.3d 822, 836 (7th
Cir. 2007). We may assume that even if GASS’s claim is
subject to a two-year statute of limitations, the limitations
period did not begin to run when Heerey received the
1997 notice of limitation, as it was not yet clear at that time
that the City would refuse to grant a permit for the sign.
But even if we assume that the due process claims are
timely, they nonetheless fail on their merits.
  Intrusion upon a cognizable property interest is a
threshold prerequisite to a substantive due process claim
of the type that GASS asserts. See, e.g., Am. Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 59, 119 S. Ct. 977, 989 (1999)
(“The first inquiry in every due process challenge is
whether the plaintiff has been deprived of a protected
interest in ‘property’ or ‘liberty.’ ”); Swartz v. Scruton, 964
20                                  Nos. 05-2515 & 06-2672

F.2d 607, 609 (7th Cir. 1992); Garza v. Miller, 688 F.2d 480,
485 (7th Cir. 1982). “In other words, no abstract right to
substantive due process exists under the Constitution.”
Zorzi v. County of Putnam, 30 F.3d 885, 895 (7th Cir. 1994).
Consequently, the lack of a protected property interest
is fatal to a substantive due process claim. Id. at 894.
  GASS’s substantive due process claims, as we have
said, are premised on the notion that because its advertis-
ing sign constituted a legal use of its property prior to the
1990 amendments to the Chicago zoning ordinance, GASS
has a protected property interest in continuing this
prior, legitimate, albeit now non-conforming, use of the
property. This might be true of the original, non-illumi-
nated sign that Heerey first had painted on his building in
1962. Although that sign was painted on the building
without a permit, the district court determined or
assumed that the relevant provisions of the zoning ordi-
nance and electrical code did not require a permit for
such a sign, and we (like the parties) have accepted her
ruling in that regard as correct. Consequently, the sign
in its original form arguably constituted a prior non-
conforming use in which GASS has a protected property
interest and of which it may not be deprived arbitrarily.
And GASS, of course, contends that it is arbitrary and
irrational for the City to treat as grandfathered signs that
were erected with a permit but not signs, like its own, that
were lawfully erected without a permit.
  But even granting that GASS may have had a pro-
tected property interest in the original, non-illuminated
sign, it could not have acquired such an interest in the
later manifestations of the sign. When Heerey illuminated
the sign in the late 1960s, and when he expanded the
sign in the 1970s, he was obligated by the express terms
Nos. 05-2515 & 06-2672                                      21

of the City’s electrical code to obtain a permit, which, so
far as the evidence reveals, he did not do. Thus, the
expanded and illuminated sign that existed in 1990, when
the City amended the zoning ordinance to prohibit ad-
vertising signs within 250 feet of a residential district,
was not an authorized use of the property that GASS had
any protected interest in continuing as a legal non-con-
forming use. Taylor, 874 N.E.2d at 933 (citing Wright v.
County of DuPage, 736 N.E.2d 650, 659 (Ill. App. Ct. 2000));
City of Marengo v. Pollack, 782 N.E.2d 913, 917 (Ill. App. Ct.
2002). And absent a protected property interest in the
sign, GASS’s substantive due process claims necessarily
fail. E.g., Zorzi, 30 F.3d at 895.
  GASS does not dispute that the terms of the electrical
code required Heerey to obtain a permit when he illumi-
nated and expanded the sign, but GASS argues that the
permit requirement itself was constitutionally invalid.
Specifically, GASS contends that the permit require-
ment amounted to an invalid prior restraint on speech
(as advertising, the sign constituted commercial speech,
see Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 501,
101 S. Ct. 2882, 2889 (1981) (plurality)), in that the relevant
terms of the permitting scheme placed no limits on the
City’s discretion to deny a permit nor any time con-
straints on the City’s decision to grant or deny a permit.
See generally FW/PBS, Inc. v. City of Dallas, 493 U.S. 215,
225-27, 110 S. Ct. 596, 604-05 (1990) (plurality); Weinberg
v. City of Chicago, 310 F.3d 1029, 1045 (7th Cir. 2002); see
also, e.g., Solantic LLC v. City of Neptune Beach, 410 F.3d
1250, 1272 (11th Cir. 2005) (permitting scheme for signs
amounted to unconstitutional prior restraint given lack of
time limits on city’s obligation to act on permit applica-
tions); Desert Outdoor Adver., Inc. v. City of Moreno
22                                   Nos. 05-2515 & 06-2672

Valley, 103 F.3d 814, 818-19 (9th Cir. 1996) (sign permit
ordinance constituted unlawful prior restraint in view
of city’s unbridled discretion to deny sign permits).
GASS adds that the permit application itself requested
information about the content of the proposed sign (in-
quiring, for example, what the “sign will read”), suggesting
that the City may have been making content-based deci-
sions about which permit applications it would grant
and which it would deny.7 In any case, given the asserted
defects in the permitting scheme as it existed when
Heerey illuminated and expanded the sign, GASS con-
tends that the permit requirement should be treated as a
nullity with which Heerey was not obligated to comply. See
Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89
S. Ct. 935, 939 (1969) (“a person faced with such an uncon-
stitutional licensing law may ignore it and engage with
impunity in the exercise of free expression for which the
law purports to require a license”).
  We may accept without deciding that the features of the
City’s permitting scheme on which GASS has focused
indeed rendered the permit requirement incompatible
with the First Amendment, such that Heerey was entitled
to ignore it. Indeed, Heerey did ignore it. So far as the
record reveals, he not only never obtained a permit autho-
rizing him to illuminate and then expand the sign on his
building, but never bothered applying for one; nonethe-
less, he proceeded to illuminate and enlarge the sign. His
speech, or more properly, that of his lessees, was never


7
  We note, however, that GASS relies for this point on the
permit applications Whiteco completed in 1994 and 1997, App.
113A, 118, rather than on any proof as to what information the
permit applications required in the 1960s and 1970s.
Nos. 05-2515 & 06-2672                                   23

restrained. Of course, this does not preclude GASS from
attacking the validity of the permit requirement.
Shuttlesworth, 394 U.S. at 151, 89 S. Ct. at 939. But the
question for us is whether, by virtue of the defects in
the permitting scheme as it existed in that time period,
Heerey and GASS also obtained a protected property
interest in the sign as a lawful, non-conforming use, just
as if Heerey had obtained a permit or as if the electrical
code had not required a permit for the illumination
or expansion of an existing sign.
   Our decision in Petra Presbyterian Church v. Vill. of
Northbrook, 489 F.3d 846 (7th Cir. 2007), cert. denied, 128
S. Ct. 914 (2008), decided shortly after we heard argu-
ment in this case, reveals that the answer to this question
is no. The plaintiff in Petra was a religious congregation
that had purchased a warehouse in the hopes of con-
verting the facility into a church. The property was located
in an area of a suburban Chicago village that was zoned
for industrial use. Although a 1988 zoning ordinance
permitted other membership organizations, including
community and youth centers, fraternal associations, and
political clubs, to operate facilities in an industrial dis-
trict, the ordinance did not allow a church to locate there
absent rezoning of the property and issuance of a
special use permit. Before purchasing its property, Petra
applied for the necessary rezoning and permit. However,
after neighboring landowners voiced opposition to the
request, the local planning commission recommended to
the village board of trustees that the application be
denied, and the trustees signaled their inclination to
acquiesce in the commission’s advice. Before the denial
could be formalized, Petra withdrew its application but
it nonetheless proceeded to purchase the property and,
24                                  Nos. 05-2515 & 06-2672

without authorization, began using the warehouse as a
church. In the meantime, Congress had enacted the Reli-
gious Land Use and Institutionalized Persons Act of 2000
(“RLUIPA”), which among other things prohibits a local
government from imposing or implementing a land use
regulation that “treats a religious assembly or institution
on less than equal terms with a nonreligious assembly
or institution.” 42 U.S.C. § 2000cc(b)(1). Fearing that its
1988 ordinance might be invalid under RLUIPA because
it treated religious organizations less favorably than
other membership organizations in terms of their ability
to operate in an industrial district, the village in 2003
adopted a revised ordinance that banned all membership
organizations from industrial districts. Existing organiza-
tions were grandfathered, but Petra, which had never
received permission to operate a church in the industrial
district, was not. After the new ordinance was enacted,
the village sought and obtained an injunction in state
court effectively barring Petra from conducting worship
services in its facility. The plaintiff filed suit in federal
court under RLUIPA and lost in the district court.
  Among other arguments, Petra contended on appeal
that although it had never obtained the requisite rezoning
and permit to operate a church within the industrial
zone of the village, it nonetheless had obtained a vested
interest in continuing to operate a church there. Petra
claimed that when it bought the property, it was relying
on the invalidity of the 1988 zoning ordinance, which by
treating religious organizations less favorably than other
membership organizations violated not only RLUIPA but
the free-exercise clause of the First Amendment. By virtue
of that reliance, Petra maintained that it had obtained
an indefeasible right to use the warehouse for a church. So
Nos. 05-2515 & 06-2672                                      25

in Petra’s view, even if the zoning ordinance enacted in
2003 barring all membership organizations from the
industrial zone were valid, Petra would still have the
right to operate its church there like any other grand-
fathered organization—in other words, as if it had ob-
tained the village’s permission to do so in the first instance.
  We categorically rejected the notion that Petra could
have acquired any right to operate a church in reliance on
the invalidity of the zoning ordinance that was in effect
when it purchased the property and established its church:
      We cannot find any basis, whether in cases or other
    conventional sources of law, or in good sense, for the
    proposition that the federal Constitution forbids a
    state that has prevented a use of property by means
    of an invalid (even an unconstitutional) enactment to
    continue to prevent that use by means of a valid one.
    From the proposition that the Village should not
    have discriminated in the industrial zone in favor of
    secular membership organizations it does not fol-
    low that when it eliminated the discrimination by
    banning all membership from the zone, this entitled
    the victim of the discrimination to claim, by way of
    remedy, discrimination in its favor. So strange a rule
    of estoppel could hardly be thought an imperative of
    due process, especially since, although property
    rights are protected (to a degree) by the due process
    clauses of the Constitution, the scope of those rights
    is determined by state law within broad limits that
    include the conditions under which a governmental
    act can render a property right indefeasible. Crown
    Media, L.L.C. v. Gwinnet County, 380 F.3d 1317, 1325 &
    n.18 (11th Cir. 2004); Coral Springs Street Sys., Inc. v.
    City of Sunrise, 371 F.3d 1320, 1333 (11th Cir. 2004);
26                                   Nos. 05-2515 & 06-2672

     Lakeview Dev. Corp. v. City of South Lake Tahoe, 915
     F.2d 1290, 1294-95 (9th Cir. 1990).
        And if there were such a rule of constitutional law
     (“vesting by estoppel”), it would be inapplicable to this
     case. If the 1988 ordinance violated RLUIPA, as
     Northbrook comes close to conceding, Petra didn’t
     have to comply with it. But that doesn’t mean that
     it acquired an immunity from all zoning regulation.
     It knew or should have known that Northbrook
     could redo its ordinance to comply with the “less
     than equal terms” provision of RLUIPA in one of two
     ways: by permitting religious organizations in the
     industrial zone, or by forbidding all membership
     organizations in the zone. Petra could not reasonably
     assume that the Village would choose the first option.
     And since it therefore did not reasonably rely on the
     illegality of the 1988 ordinance in going ahead
     and buying the property, but instead assumed the
     palpable risk that a new, valid ordinance would
     continue the ban on its desired use of the property,
     it has no ground for blocking the Village from en-
     forcing the amended ordinance against it, on the
     theory that the Village pulled the rug out from under
     it by changing the ordinance.
489 F.3d at 849 (emphasis in original).
  GASS finds itself in essentially the same position as the
plaintiff in Petra. GASS wishes to continue using its
property in a manner that the current version of the
City’s zoning ordinance prohibits, because its sign is
larger than 100 square feet and is within 250 feet of a
Nos. 05-2515 & 06-2672                                          27

residential district.8 GASS’s only means of preserving its
sign is to establish that the sign was a lawful use prior to
the zoning change. The problem for GASS, as it was for
Petra, is that neither GASS nor Heerey ever obtained
the permits that were required for its use; Heerey illumi-
nated and expanded the sign without even seeking a
permit. So even before the current zoning took effect,
GASS’s sign, like Petra’s church, was an unauthorized use
of its property. GASS cannot claim a protected interest in
continuing to display advertising that, once illuminated
and expanded, was illegal from the start. To circumvent
that obstacle, GASS seeks to rely on constitutional defects
in the permitting scheme in effect in the 1960s and 1970s,
contending that these defects rendered the permit require-
ment a nullity and rendered its illuminated and expanded
sign a lawful use of the property notwithstanding its lack
of the requisite permits for such a sign. GASS, just like
the plaintiff in Petra, is retrospectively relying on the
supposed illegality of former incarnations of the zoning
ordinance to transform its unlicensed use of property
into an authorized use and to give it a property interest
in continued use of that property despite subsequent
changes to the zoning code. GASS’s creative bootstrapping
effort fails for precisely the same reasons that Petra’s did.
   We note that, consistent with our decision in Petra,
Illinois cases also reject the notion that a property owner
may rely on purported defects in prior versions of the
law as the springboard to claim a vested interest in a
property use for which it never obtained permission. As
the court reasoned in City of Elgin v. All Nations Worship
Ctr., 860 N.E.2d 853, 857 (Ill. App. Ct. 2006):


8
   No question is raised as to the validity of the current prohibi-
tion.
28                                   Nos. 05-2515 & 06-2672

     [V]ested rights are acquired by attempting to comply
     with an ordinance as written. . . . [W]hen a party
     expends substantial time and effort attempting to
     comply with an ordinance as it then exists and then
     the legislative body amends the ordinance, the party
     may acquire a vested right to proceed under the old
     ordinance. [Citation omitted.] Here, however All
     Nations proceeded in violation of the zoning ordinance
     as written. It is difficult to see how All Nations can
     claim a vested right to ignore the existing ordinance.
(Emphasis in original.) See also Nat’l Adver. Co. v. Vill. of
Downers Grove, 561 N.E.2d 1300, 1304-05 (Ill. App. Ct. 1990).
As it is Illinois law to which GASS must look for a prop-
erty right, these holdings confirm that GASS lacks the
requisite basis for a due process claim.
   As a fallback, GASS contends that at the very least, it
has a protected property interest in continuing to display
a smaller, non-illuminated sign on its building. Because,
as the district court assumed, no permit was required for
the sign or signs Heerey originally had painted on his
building in the early 1960s, that type of sign was an
authorized use and GASS argues that it may assert a
right to display at least that type of advertising, even if
it has no claim to the larger, illuminated sign for which
it never sought the requisite permits.
  But this is an argument that GASS made too late in
the day. GASS first advanced this argument in a mean-
ingful way in its supplement to its post-trial motion
under Rule 59 to amend the judgment. R. 131. Arguments
that could have been made earlier but are instead raised
for the first time in a Rule 59 motion are waived. E.g.,
Estremera v. United States, 442 F.3d 580, 587 (7th Cir. 2006).
The argument was hinted at parenthetically in the
Nos. 05-2515 & 06-2672                                        29

pretrial order’s recitation of GASS’s proposed legal con-
clusions (see R. 111 Ex. L at 8 ¶ 44), and again in the
opening statement that GASS’s lawyer made at trial,
R. 166 at 16, but those references alone were insufficient
to alert either the City or the court to the argument that
GASS finally developed and supported in the supple-
ment to its Rule 59 motion. As the district court noted,
GASS offered no explanation for its tardiness in pursuing
this argument. R. 144, 2006 WL 1460017, at *5. We do not
reach the merits of the argument, concluding that GASS
waived it.
  Because GASS has not established that its sign was
lawful before the 1990 zoning change that banned ad-
vertising signs within 250 feet of a residential district, it has
no protected property interest in the sign that would
support a substantive due process claim. On that basis,
we affirm the entry of judgment against GASS and in
favor of the City on the substantive due process claims
set forth in Counts III and IV of GASS’s second amended
complaint.


B. Procedural Due Process
   In a cursory argument spanning all of two paragraphs
in its opening brief (GASS Br. at 43-44), GASS argues
that the district court incorrectly dismissed as untimely
its procedural due process claim. The argument is so brief
that GASS has waived it. See, e.g., Robinson v. Alter Barge
Line, Inc., 513 F.3d 668, 675 (7th Cir. 2008). GASS does not
even set out the elements of a procedural due process
claim. See Mema v. Gonzales, 474 F.3d 412, 421 (7th Cir.
2007); Estate of Allen v. City of Rockford, 349 F.3d 1015, 1022
n.9 (7th Cir. 2003).
30                                   Nos. 05-2515 & 06-2672

C. First Amendment
  Finally, GASS contends that its complaint alleged a
valid claim for the threatened and impending denial of its
First Amendment right to free speech based on the com-
mercial content of the sign. Recall that the district court
dismissed this claim because the focus of GASS’s chal-
lenge was not on a provision of the zoning ordinance
having to do with the nature or content of the sign, but
rather on the grandfather provision of the ordinance
which allowed non-conforming signs erected pursuant to
a permit to remain after the 1990 zoning changes but
not signs erected without a permit. That provision, the
court pointed out, applied to all signs, not just advertising
signs; consequently, GASS’s claim did not in fact have
to do with the regulation of commercial speech. Moreover,
as a challenge to the grandfather provision, the court
viewed this claim as simply a restatement of GASS’s
substantive due process claims. “Plaintiffs cannot convert
what is essentially a due process claim into one under the
First Amendment merely by noting that theirs is an
advertising sign.” R. 93, 2004 WL 442636, at *5.
  GASS contends that the district court overlooked the
First Amendment implications of its challenge. Although
the grandfather provision found in section 6.7-1(a) of the
zoning ordinance applies to a variety of signs, not just
those displaying advertising, as relevant here it operates
as an exemption from the limits imposed by section 8.9(7)
of the ordinance, which prohibits advertising signs in
excess of 100 square feet from being within 250 of a resi-
dence district. “The regulation at issue, therefore, is a reg-
ulation of commercial speech.” GASS Amended Br. 46. As
such, GASS reasons, it must be scrutinized under the four-
part test for regulation of commercial speech set forth
Nos. 05-2515 & 06-2672                                       31

in Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Com’n of
New York, 447 U.S. 557, 566, 100 S. Ct. 2343, 2351 (1980).
That test requires in part that a restriction on legitimate,
non-misleading commercial speech must be designed to
advance a substantial government interest. See id. at 564,
100 S. Ct. at 2350. GASS contends that the City has no
legitimate interest in grandfathering non-conforming
advertising signs that were erected pursuant to a permit
but not those, like its own, that were erected without
one; that distinction, in GASS’s view, is irrational and
arbitrary. GASS Amended Br. 47. It likens the distinction
to the one that the City of Cincinnati drew between the
use of newsracks on the public way to distribute com-
mercial bills, which the city prohibited, and the use of
such racks to distribute newspapers, which the city al-
lowed. The Supreme Court deemed that distinction
unconstitutional in City of Cincinnati v. Discovery Network,
Inc., 507 U.S. 410, 113 S. Ct. 1505 (1993), finding there to
be no reasonable fit between the city’s interest in
aesthetics and safety and its decision to ban only those
newsracks distributing commercial bills.
   Try as it might, GASS has not succeeded in stating a
claim for the regulation of commercial speech. True
enough, section 8.9(7) of the zoning ordinance is a regula-
tion of commercial speech, in that it specifically bans
advertising signs larger than 100 square feet from being
located within 250 feet of a residence district. But GASS
does not contend that the constitutionality of section 8.9(7)
itself is suspect. It does not even analyze section 8.9(7)
pursuant to the Central Hudson test. Its attack, as the district
court recognized and as GASS’s appellate brief makes
plain, is on the grandfather provision of section 6.7-1(a),
and the differing treatment that provision grants to previ-
32                                    Nos. 05-2515 & 06-2672

ously permitted signs as distinct from signs that were
enacted without a permit. Yet, the grandfather provision
is not a provision that is triggered by the commercial
content of the sign in question. As GASS concedes, sec-
tion 6.7-1(a) applies to all manner of signs, not just adver-
tising signs. As such, we agree with the City that the
grandfather provision is a content-neutral time, place,
and manner restriction on speech rather than a regula-
tion of commercial speech. See Discovery Networks, 507
U.S. at 428, 113 S. Ct. at 1516; see also, e.g., Solantic LLC v.
City of Neptune Beach, supra, 410 F.3d at 1268 n.15.
   The City has gone on to analyze the grandfather provi-
sion as a time, place and manner restriction, but GASS
itself has made no argument that the provision is uncon-
stitutional under that framework, thereby waiving any
such contention. For these reasons, we believe the dis-
trict court correctly dismissed GASS’s First Amendment
claim.


                              III.
  GASS has reaped hundreds of thousands of dollars in
revenues from its sign despite the fact that the sign has
been unauthorized for the past three or more decades.
Those days are at an end. Because GASS’s predecessor
Heerey failed to obtain the requisite permits to illuminate
and then expand the sign in the 1960s and 70s, the sign
was not a legal land use that gave rise to a protected
property interest. Absent such a vested property right,
GASS cannot mount a substantive due process challenge
to the 1990 amendments to the City’s zoning ordinance,
which prohibited signs as large as GASS’s within 250 feet
of a residential district and grandfathered only those
Nos. 05-2515 & 06-2672                               33

existing, non-conforming signs which had been erected
pursuant to a permit. GASS has not shown how the
First Amendment is implicated by the content-neutral
provisions of the 1990 grandfather provision. GASS’s
procedural due process claim has been waived. For all of
these reasons, we A FFIRM the district court’s judgment.




                  USCA-02-C-0072—5-16-08
