                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




               CBS Outdoor, Inc. v. Village of Itasca, 2011 IL App (2d) 101117




Appellate Court            CBS OUTDOOR, INC., Plaintiff-Appellant, v. THE VILLAGE OF
Caption                    ITASCA and WAYNE HUMMER TRUST COMPANY, N.A., as
                           Trustee Under a Trust Agreement Dated April 16, 2007, and Known as
                           Trust BEV 2384, Defendants-Appellees.



District & No.             Second District
                           Docket No. 2-10-1117


Filed                      November 9, 2011


Held                       In an action seeking a declaratory judgment that the provisions of an
(Note: This syllabus       ordinance requiring the removal of a billboard maintained by plaintiff on
constitutes no part of     defendant’s property pursuant to a lease were invalid and unenforceable
the opinion of the court   and alleging a violation of the Eminent Domain Act, the trial court
but has been prepared      properly granted a motion to dismiss on the ground that plaintiff lacked
by the Reporter of         standing where no property was taken from plaintiff.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Du Page County, No. 10-MR-263; the
Review                     Hon. Kenneth L. Popejoy, Judge, presiding.



Judgment                   Affirmed and remanded.
Counsel on                 Robert J. Weber, of Law Offices of Robert J. Weber, of Chicago, for
Appeal                     appellant.

                           Charles E. Hervas and Rebecca J. Ketchie, both of Hervas, Condon &
                           Bersani, P.C., of Itasca, for appellee Village of Itasca.


Panel                      JUSTICE McLAREN delivered the judgment of the court, with opinion.
                           Justices Schostok and Hudson concurred in the judgment and opinion.




                                              OPINION

¶1         Plaintiff, CBS Outdoor, Inc., appeals from the trial court’s dismissal of its second
        amended complaint. We affirm and remand.

¶2                                        I. BACKGROUND
¶3          Since 1982, CBS (or its predecessors) has leased a portion of the property at 865 W.
        Irving Park Road in Itasca for a billboard. Defendant Wayne Hummer Trust Company (the
        Trust) is the current owner of the property. In 1983, defendant the Village of Itasca enacted
        an ordinance rezoning the property from B-3 to B-3 with a special use as a planned
        development. As conditions of the enactment of that ordinance, Itasca required the then-
        owner of the property to cancel its lease with the then-owner of the billboard and remove the
        billboard by June 12, 1992. Neither condition was met.
¶4          On April 30, 1998, a 10-year lease was signed allowing maintenance of the billboard on
        the property until May 31, 2008. The tenant billboard owner was given the right to continue
        in possession after May 31, 2008, for one-year terms, provided that the property owner did
        not serve a notice of termination at least 90 days before the end of a term. Shortly thereafter,
        by a series of mergers, CBS became owner of the billboard.
¶5          In 2003, a new property owner, TST/Impreso (TST), requested that Itasca amend the
        planned development to add an addition to the existing building on the property. TST agreed
        to terminate the billboard lease on May 31, 2008 (the end of its term), and agreed to refrain
        from entering into any other lease concerning the use or maintenance of a billboard on the
        property. TST was also to cause the existing billboard to be removed by June 30, 2008. For
        each month after that date that the billboard remained on the property, TST was to pay
        damages to Itasca in the amount of 90% of the monthly rental that it received for the
        billboard or, if no lease existed, $2,250 per month.
¶6          The Trust contracted to buy the property from TST in June 2007, contingent on Itasca’s
        grant of a special use allowing the Trust’s anticipated tenant to use the building on the

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       property for an office, warehouse, and sales area for floor and wall coverings. On July 24,
       2007, Itasca enacted ordinance No. 1395-07 (Itasca Zoning Ordinance No. 1395-07
       (approved July 24, 2007)) amending the planned development, including a provision
       requiring removal of the billboard by June 30, 2008. The Trust acquired the property on
       August 30, 2007, and entered into a lease of the property with Mr. David’s Carpet Service,
       subject to CBS’s rights under the 1998 lease. In September 2007, the Trust served CBS with
       notice of termination of that lease; the lease then expired on its own terms on May 31, 2008.
       While the Trust has asked that CBS remove the billboard, the sign remains standing on the
       property.
¶7         CBS filed a complaint for declaratory judgment and injunctive relief in the circuit court
       of Cook County on July 9, 2008. The case was removed to the United States District Court
       for the Northern District of Illinois, where CBS filed an amended complaint. The federal
       court remanded to Cook County the state issues and stayed proceedings on the federal issues,
       pending resolution of the state claims.
¶8         CBS then filed a five-count second amended complaint in Cook County; count I sought
       declaratory judgment that the removal provisions of the ordinance were invalid and
       unenforceable. Counts II and III alleged violations of its rights to substantive due process (II)
       and equal protection (III) under the Illinois Constitution. Count IV alleged violation of its
       federal civil rights, and count V alleged violation of the Eminent Domain Act (Act) (735
       ILCS 30/1-1-1 et seq. (West 2006)). The cause was then transferred to the circuit court of
       Du Page County.
¶9         Itasca filed a combined motion to dismiss pursuant to section 2-619.1 of the Code of
       Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2006)). Itasca argued that the trial court
       should dismiss under section 2-615 of the Code: (1) counts I through III, because they were
       “time-barred”; (2) counts I through III and V, because CBS lacked standing; (3) in the
       alternative, counts I and II, because CBS failed to allege sufficient facts “to overcome the
       presumptive validity of the challenged ordinances”; and (4) count III, because CBS failed to
       allege a cause of action for an equal protection violation under the Illinois Constitution.
       Itasca also argued that CBS’s federal claims in count IV should be dismissed pursuant to
       section 2-619 of the Code.
¶ 10       CBS then filed a response to the motion to dismiss and included requests to strike various
       exhibits attached to the motion to dismiss. On May 17, 2010, during argument on the motion
       to strike, the trial court explained to Itasca:
           “[Y]ou’ve got a 2-615 motion to dismiss under the first four counts of the complaint and
           you’ve attached a whole bunch of other documents. And I say in regard to all of this, I
           kept saying why is this not 2-619. Why is this not 2-619? I’m going on and on and on,
           and I’m looking at the cases and your cases don’t give me any reason why it isn’t. You
           have maybe an appropriate 2-619 motion to dismiss on a [sic] affirmative matters, and
           you’re welcome to file a 2-619 motion to dismiss if you deem that appropriate. But a 2-
           615, I’m going to grant unless you’ve got something, some wizardry thing you’re going
           to hit to me in the next minute here, I’m going to grant their [sic] motion to strike the
           various exhibits that you have attached to it, because I don’t have any basis looking at


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          those on a 2-615.
                                                ***
               So I’m going to grant the motion to strike the exhibits that was prepared in regard to
           same. With the striking of those exhibits, I am striking without prejudice the 2-615
           aspects of your motion to dismiss Counts 1 through 4 [sic] for you to replead and amend
           a motion to dismiss as you deem appropriate on a 2-619.1 which combines 15 and 19 or
           separately or however you want to do it in regard to same.”
       The court’s written order of that date states, “The motion to strike exhibits of CBS Outdoor
       is granted. The Village of Itasca shall file an amended motion to dismiss and memo of law
       on or before June 18, 2010.” While Itasca filed a “Revised Memorandum of Law in Support
       of Combined Motion to Dismiss” on June 17, adding an argument regarding section 2-619
       and CBS’s lack of standing on counts I through III and V, the record does not contain a new
       motion to dismiss or even a notice of filing an amended motion.
¶ 11       Nevertheless, on October 6, 2010, the trial court ruled on a motion to dismiss. The court
       dismissed counts I through III and V with prejudice, finding that counts I through III were
       time-barred pursuant to section 11-13-25(a) of the Illinois Municipal Code (Municipal Code)
       (65 ILCS 5/11-13-25(a) (West 2006)) and that CBS lacked standing to bring a claim under
       the Act (735 ILCS 30/1-1-1 et seq. (West 2006)) in count V. Count IV was “removed back”
       to federal court. This appeal followed.

¶ 12                                      II. ANALYSIS
¶ 13       We must first address the muddled procedural aspect of this case. The trial court clearly
       struck “the 2-615 aspects” of Itasca’s combined motion to dismiss and ordered Itasca to “file
       an amended motion to dismiss and memo of law.” While Itasca filed a revised memorandum
       of law, the record does not contain an amended motion to dismiss. Curiously, CBS never
       raises the lack of a motion. However, since CBS did not object to the lack of such a motion
       or claim prejudice because of it, we will consider the absence of the motion forfeited, and
       we will address the merits of the case.

¶ 14                                      Limitations Period
¶ 15       CBS contends that the trial court applied the wrong limitations period in concluding that
       counts I through III of its second amended complaint were time-barred. Itasca enacted
       ordinance No. 1395-07, including the provision requiring removal of the billboard, on July
       24, 2007. Plaintiff filed its complaint on July 9, 2008, 351 days later. In its limitations
       analysis, the trial court applied section 11-13-25(a) of the Municipal Code, which states:
           “Any special use, variance, rezoning, or other amendment to a zoning ordinance adopted
           by the corporate authorities of any municipality, home rule, or non-home rule, shall be
           subject to de novo judicial review as a legislative decision, regardless of whether the
           process of its adoption is considered administrative for other purposes. Any action
           seeking the judicial review of such a decision shall be commenced not later than 90 days
           after the date of the decision.” 65 ILCS 5/11-13-25(a) (West 2006).


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       CBS argues that it did not seek review of Itasca’s decision to grant a special use. Instead, it
       alleged that the removal provision was invalid on its face, ultra vires, and unenforceable, and
       that Itasca violated state statutes and CBS’s constitutional rights by including the removal
       provision in the ordinance. According to CBS, the ordinance contains “dual aspects” such
       that there is a “bifurcation (separating the grant of the special use from the Village’s unlawful
       act; i.e., the illegal removal of a legal non-conforming sign).” This “bifurcation” requires the
       removal provision to be considered separately from the grant of the special use. Had CBS
       sought review “of the wisdom” of Itasca’s decision to grant the special use, section 11-13-
       25(a) and its 90-day limitations period would apply. However, since CBS alleged violations
       of state statutes and constitutional provisions, the applicable limitations period is that
       contained in section 13-205 of the Code, which provides in part:
            “[A]ll civil actions not otherwise provided for, shall be commenced within 5 years next
            after the cause of action accrued.” 735 ILCS 5/13-205 (West 2006).
       We disagree.
¶ 16        The reach of a limitations statute is a question of law, which is to be reviewed de novo.
       Village of Glendale Heights v. Glen Ayre Enterprises, Inc., 404 Ill. App. 3d 205, 207 (2010).
       In construing a statute, our primary goal is to determine the legislature’s intent, and the best
       indicator of that intent is the plain language of the statute. Village of Glendale Heights, 404
       Ill. App. 3d at 207.
¶ 17        Section 11-13-25(a) provides that “Any action seeking the judicial review” of a decision
       by a municipality regarding “any petition or application for a special use *** shall be
       commenced not later than 90 days after the date of the decision.” (Emphases added.) 65 ILCS
       5/11-13-25(a) (West 2006). The statute does not differentiate between actions seeking review
       “of the wisdom” of a decision to grant a special use and those alleging that the municipality
       did not have the authority to include certain provisions in its grant of a special use and that
       it violated state statutes and constitutional provisions in granting a special use. “Any” review
       includes all reviews. These reviews “shall be commenced not later than 90 days after the date
       of the decision.” 65 ILCS 5/11-13-25(a) (West 2006). The 90-day limitations period for
       review of these decisions is not optional. After 90 days have run, the decision of a
       municipality regarding a petition or application for a special use is deemed valid.
¶ 18        This court analyzed the application of section 11-13-25(a) in Our Savior Evangelical
       Lutheran Church v. Saville, 397 Ill. App. 3d 1003 (2009). In Our Savior, the Aurora city
       council, among other things, denied the church’s application for a special use permit. The
       church then filed a three-count complaint in the circuit court, seeking: (1) review under the
       Administrative Review Law of an action not relevant to our discussion here; (2) review, via
       a writ of certiorari, of its allegation that the city council erred in denying the special use
       permit; and (3) declaratory judgment that the city’s action violated the Illinois Religious
       Freedom Restoration Act (775 ILCS 35/1 et seq. (West 2008)). Our Savior, 397 Ill. App. 3d
       at 1017. While Our Savior did not involve a question of the limitations period contained in
       section 11-13-25(a), it involved the application of the de novo standard of judicial review,
       added in a recent amendment of that section, to a question of “whether the denial of the
       special use permit complied with substantive due process.” Our Savior, 397 Ill. App. 3d at


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       1028. This court concluded that section 11-13-25(a) as amended applied. Our Savior, 397
       Ill. App. 3d at 1027. We can see no reason why the standard of review provided in section
       11-13-25(a) would apply to a case involving an allegation of a statutory violation in a
       decision regarding a special use permit but the limitations period contained in the very next
       sentence of the section would not. The review of Itasca’s ordinance granting the special use
       permit, including the removal provision, is clearly provided for in the limitations period
       language contained in section 11-13-25(a). Therefore, section 13-205 of the Code and its
       five-year limitations period do not apply. As CBS brought this action 351 days after Itasca’s
       decision, the trial court did not err in concluding that counts I through III of CBS’s second
       amended complaint were time-barred.

¶ 19                                       Lack of Standing
¶ 20        Itasca raised only one new section 2-619 argument in its revised memorandum: that CBS
       lacked standing to bring counts I through III and V. The trial court addressed this argument
       only in relation to count V and CBS’s standing to pursue relief under the Act (735 ILCS
       30/1-1-1 et seq. (West 2006)), finding that CBS lacked such standing and dismissing count
       V on this basis. CBS does not raise the issue of standing regarding counts I through III in this
       appeal.
¶ 21        CBS argues that the implementation of the removal provision in ordinance No. 1395-07
       was a taking under section 10-5-5(b) of the Act, which provides in part:
            “The right to just compensation, as provided in this Act, applies to the owner or owners
            of any lawfully erected off-premises outdoor advertising sign that is compelled to be
            altered or removed under this Act or any other statute, or under any ordinance or
            regulation of any municipality ***.” 735 ILCS 30/10-5-5(b) (West 2006).
       CBS argues that its billboard was a legal, nonconforming use: legally constructed in 1982,
       nonconforming because of Itasca’s 2008 amendment prohibiting off-premises advertising.
       It also had a contractual right to maintain the billboard until June 2008 and thereafter from
       year to year. Thus, according to CBS, it was entitled to compensation for the forced removal
       of its billboard. We disagree.
¶ 22        This court declined to adopt this argument in Lamar Advantage G.P. Co. v. Addison Park
       District, 354 Ill. App. 3d 130 (2004). In Lamar Advantage, the plaintiff maintained a
       billboard pursuant to a 15-year lease on property that was eventually purchased by the
       Addison park district. While the plaintiff and the district negotiated to extend the lease for
       another term, the district also sought annexation of the property into the Village of Addison,
       which notified the district that it was “ ‘very interested to see the billboard removed at the
       end of’ ” the current lease. Lamar Advantage, 354 Ill. App. 3d at 132. Addison and the
       district entered into an annexation agreement that included the express statement that the
       district had agreed to remove the billboard at the expiration of the current lease term, just less
       than four years later. Addison passed ordinances approving the agreement, annexing the
       property, and rezoning the property. The district subsequently sent notice to the plaintiff,
       more than a year before the expiration of the lease, that the lease would not be renewed.
       Lamar Advantage, 354 Ill. App. 3d at 133.

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¶ 23         Contrary to the plaintiff’s argument, this court concluded that the ordinance approving
       the annexation “did not compel the removal of the plaintiff’s billboard.” Lamar Advantage,
       354 Ill. App. 3d at 140. The agreement stated that the district agreed to remove the billboard
       at the expiration of the lease; neither the district nor Addison took any action, “condemnation
       or otherwise,” to compel the removal of the billboard. Lamar Advantage, 354 Ill. App. 3d
       at 140. Instead, the district, as landlord, “exercised its right *** not to renew the lease and
       to allow the lease to expire on its own terms.” Lamar Advantage, 354 Ill. App. 3d at 140. The
       court noted that the termination of a lease according to its terms is not a taking of property
       by eminent domain and found no error in the trial court’s dismissal of that claim. Lamar
       Advantage, 354 Ill. App. 3d at 140.
¶ 24        Here, the Trust similarly allowed the lease to expire according to its terms; therefore,
       there was no taking of CBS’s property by eminent domain. CBS argues that Lamar
       Advantage is distinguishable because of the “pervasive coercion that cloaks the critical
       aspects of this case.” According to CBS, Itasca used the Trust as a “stalking horse” to
       accomplish the illegal purposes of selling its own zoning discretion and removing the
       billboard without payment of just compensation. However, CBS fails to truly distinguish the
       actions of Itasca in this case from the actions of Addison in Lamar Advantage. In both cases,
       the property owners sought from the municipalities some beneficial action regarding their
       properties. The municipalities, in turn, agreed to take the requested actions, provided that the
       owners agreed to allow the billboard leases to expire. Neither municipality was required to
       do what was requested; neither property owner was forced to accept the conditions put
       forward by the municipality. In both cases, both sides had to decide if the proposed
       agreements were in their best interests. The Trust could have declined to accept Itasca’s offer
       and simply applied for the special use without an agreement. If the application was not
       granted, the Trust could have then proceeded through the usual appeal process or instituted
       litigation if it felt that the application was wrongfully denied. What CBS calls “coercion” was
       nothing more than negotiation.
¶ 25        Further, CBS’s arguments on appeal regarding coercion are different from those it raised
       in the trial court. In its second amended complaint, CBS alleged that “[o]n information and
       belief, *** the sole reason that the Trust served said notice of termination upon [CBS] was
       the Village’s threat to impose monetary penalties upon the Trust.” Obviously, this involves
       activities that took place after the passage of the ordinance, not in the negotiation of the
       removal provision and the special use. The potential monetary penalties existed only because
       of the agreement between Itasca and the Trust. In addition, once a party enters into a contract,
       it is not coercion to demand that the party perform it. See Crossroads Ford Truck Sales, Inc.
       v. Sterling Truck Corp., 341 Ill. App. 3d 438, 447 (2003) (involving a franchise agreement).
       CBS has failed to allege any coercion here.
¶ 26        At oral argument, CBS argued that it did not receive proper notice of a zoning hearing
       regarding the special-use application. However, other than two references to the fact that the
       removal provision was inserted into the ordinance “without notice to CBS,” CBS nowhere
       in its second amended complaint alleged that its rights were violated or that the ordinance
       is invalid because CBS did not receive adequate notice of the proposed ordinance. Generally,
       an issue raised for the first time on appeal is forfeited. Helping Others Maintain

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       Environmental Standards v. A.J. Bos, 406 Ill. App. 3d 669, 695 (2010). We will not consider
       this line of argument.
¶ 27       As there was no taking of CBS’s property under the Act, we find no error in the trial
       court’s dismissal of count V for lack of standing.
¶ 28       Because CBS’s state claims were properly dismissed, the case shall be remanded to the
       United States District Court for the Northern District of Illinois for further proceedings on
       CBS’s federal claims.

¶ 29                                   III. CONCLUSION
¶ 30       For these reasons, the judgment of the circuit court of Du Page County is affirmed, and
       the cause is remanded to the United States District Court for the Northern District of Illinois
       for further proceedings.

¶ 31      Affirmed and remanded.




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