                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




       CBS Outdoor, Inc. v. Department of Transportation, 2012 IL App (1st) 111387




Appellate Court            CBS OUTDOOR, INC., Plaintiffs-Appellants, v. THE DEPARTMENT
Caption                    OF TRANSPORTATION, an Agency of the State of Illinois, and
                           31W356 DIEHL INVESTORS, LLC, an Illinois Limited Liability
                           Company, Defendants-Appellees.



District & No.             First District, Sixth Division
                           Docket No. 1-11-1387


Filed                      March 30, 2012
Rehearing denied           June 14, 2012


Held                       The trial court’s denial of plaintiff’s complaint for writ of certiorari was
(Note: This syllabus       reversed where the Illinois Department of Transportation lacked the
constitutes no part of     authority to grant defendant a billboard permit under the Illinois
the opinion of the court   Administrative Code after issuing a final denial of defendant’s permit
but has been prepared      application.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 10-CH-43446; the
Review                     Hon. Lee Preston, Judge, presiding.


Judgment                   Reversed and remanded with instructions.
Counsel on                 William J.P. Banks, James R. Griffin, Robert C. Kenny, and Michael R.
Appeal                     Burney, all of Schain, Burney, Banks & Kenny, Ltd., of Chicago, for
                           appellant.

                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, and Janon E. Fabiano, Assistant Attorney General, of
                           counsel), for appellee Department of Transportation.

                           Arnstein & Lehr LLP, of Chicago (Hal R. Morris, Thadford A. Felton,
                           and Julie A. Meyer, of counsel), for appellee 31W356 Diehl Investors,
                           LLC.


Panel                      JUSTICE PALMER delivered the judgment of the court, with opinion.
                           Justices Garcia and Lampkin concurred in the judgment and opinion.



                                              OPINION

¶1           Plaintiff CBS Outdoor, Inc., appeals the trial court’s denial of its writ of certiorari
        challenging the issuance of an outdoor billboard permit by defendant Illinois Department of
        Transportation (IDOT) to defendant 31W356 Diehl Investors, LLC (Diehl). We reverse and
        remand.
¶2           Diehl owned property located at 31W356 Diehl Road in Naperville (Diehl property). The
        Diehl property is adjacent to and south of Interstate 88 (I-88). Plaintiff had an agreement with
        Diehl to keep an outdoor billboard on the Diehl property until September 26, 2009, although
        plaintiff’s lease on the property expired on April 30, 2009.
¶3           On June 26, 2009, Diehl submitted an application (application) to IDOT for an outdoor
        advertising sign permit (permit) for the Diehl property. In a cover letter to the application,
        Diehl stated that while plaintiff currently had an outdoor advertising sign on the Diehl
        property, Diehl was reviewing its rights to remove plaintiff’s sign and requested that IDOT
        process Diehl’s application. Diehl included a copy of a trustees’ deed showing it owned the
        Diehl property, a Du Page County zoning ordinance effective May 1, 1957, and a zoning map
        designating the property as “Manufacturing 2” property. “Manufacturing 2” is the zoning
        designation required for the billboard Diehl was seeking. While the application described the
        proposed sign location as “60 feet from the N side of the highway right of way,” the
        documents accompanying the application showed the proposed sign location to be south of
        I-88.
¶4           In a July 9, 2009, letter, Paul Lauricella, zoning technician for Du Page County, sent a
        letter to IDOT erroneously stating that the Diehl property was zoned “F-Farming” in 1959.


                                                  -2-
¶5         On July 17, 2009, IDOT informed Diehl that it intended to deny Diehl’s application
       because “[t]he location proposed does not meet spacing or zoning requirements.” IDOT also
       included a checklist of items Diehl was required to submit. The letter stated that Diehl had
       30 days from the receipt of the letter to provide required documentation or challenge IDOT’s
       intent to deny, and that “[i]f the required documentation or a challenge is not received within
       30 days after receiving this notice[, Diehl’s] permit application will be closed.”
¶6         On July 27, 2009, IDOT informed plaintiff it needed to remove its sign from the Diehl
       property because the sign was illegal and the “location did not meet zoning requirements.”
       Plaintiff subsequently removed its sign.
¶7         On August 17, 2009, Diehl sent a written response to IDOT, challenging IDOT’s July 17,
       2009, notice of intent to deny the application. Diehl explained that, while IDOT had
       requested a letter confirming the Diehl property was located within municipal limits as of
       September 21, 1959, the Diehl property was located in unincorporated Du Page County, and
       the Du Page County zoning ordinance passed before that date designated the Diehl property
       as zoned manufacturing.
¶8         On September 9, 2009, plaintiff filed an application for a new billboard sign permit on
       property located at 31W350 Diehl Road (31W350 property), which is adjacent to the Diehl
       property.
¶9         On September 17, 2009, plaintiff’s counsel wrote to IDOT, acknowledging receipt of
       IDOT’s July 27, 2009, letter that asked plaintiff to remove its sign from the Diehl property.
       Plaintiff’s counsel then stated:
                “We are also aware that your office recently received an application for an outdoor
           advertising sign at that same location during the time that [plaintiff’s] sign existed. Based
           on my understanding of the Illinois Administrative Code (Section 522, et seq.) the
           subsequent application should not have been processed by IDOT and should have been
           denied.”
¶ 10       On September 18, 2009, IDOT issued its intent to deny plaintiff’s permit. Plaintiff did
       not respond to IDOT’s intent to deny letter.
¶ 11       On September 21, 2009, IDOT issued Diehl a final written denial of its application.
       IDOT stated that Diehl’s challenge to IDOT’s July 17, 2009, notice of intent to deny the
       application “was received and carefully reviewed by [IDOT] personnel. It has been
       determined the initial decision to deny your application stands and this file is now closed.”
¶ 12       In an October 14, 2009, letter, zoning technician Lauricella informed IDOT that he had
       incorrectly stated that the Diehl property was zoned as “F-Farming.” Lauricella explained
       that the Diehl property had been reclassified in 1957 as “M-2 General Manufacturing,” which
       allows for the placement of an outdoor advertising sign.
¶ 13       On October 19, 2009, plaintiff applied for another billboard sign permit for the 31W350
       property.
¶ 14       On October 22, 2009, IDOT informed plaintiff that it intended to deny plaintiff’s
       application because plaintiff had submitted an incorrect survey with its application. The
       record does not indicate that plaintiff challenged in writing IDOT’s October 22, 2009, intent


                                                 -3-
       to deny letter, as required by section 522.80(a) of title 92 of the Illinois Administrative Code
       (Code) (92 Ill. Adm. Code 522.80(a), amended at 30 Ill. Reg. 15792 (eff. Oct. 1, 2006)).
¶ 15        On October 30, 2009, Diehl submitted an “Amended Application” to IDOT. In the cover
       letter to the application Diehl explained that a clerical error in the original application
       designated the Diehl property as being “60 feet from the N side of the highway [I-88] right
       of way.” The number “60” and the letter “N” were entered into “blanks” on the application,
       and the “N” was incorrectly inputted. Rather, the Diehl property is 60 feet south of the
       highway right-of-way. In Diehl’s amended application, the Diehl property was listed as “60
       feet from the S side of the highway right of way.” Diehl also stated that other documentation
       included with the original permit clearly showed Diehl’s intent that the sign was to be built
       60 feet from the south right-of-way.
¶ 16        In a November 18, 2009, memorandum to IDOT, plaintiff’s counsel stated that Diehl’s
       permit application “should have been corrected within 30 days of June 26, 2009, or it should
       have been denied. The [Code] does not allow for revisions to applications after the 30 day
       period. Therefore IDOT has no authority to issue [the permit to Diehl].”
¶ 17        On June 24, 2010, IDOT notified Diehl that its application for the outdoor sign permit
       was granted.
¶ 18        On July 1, 2010, IDOT again sent plaintiff written notice of its intent to deny its
       application for a new billboard to be placed on the 31W350 property because “[t]here is an
       existing [IDOT] advertising permit for a location within 500’ of [plaintiff’s] proposed
       location.” The existing permit IDOT referenced was the permit issued for the Diehl property
       on June 24, 2010.
¶ 19        On July 30, 2010, plaintiff submitted its challenge to IDOT’s intent to deny, arguing that
       the permit issued to Diehl was invalid because Diehl could not and did not correct the
       deficiencies in its application within the requisite 30-day period.
¶ 20        Plaintiff filed a complaint for writ of certiorari in the circuit court of Cook County,
       requesting the court reverse the decision of IDOT approving Diehl’s sign permit at the Diehl
       property.
¶ 21        On April 12, 2011, the court issued a written order denying plaintiff’s complaint for writ
       of certiorari and affirming IDOT’s decision to grant Diehl the permit.
¶ 22        On appeal, plaintiff contends that IDOT had no authority to issue Diehl a permit nine
       months subsequent to denying the permit on September 21, 2009. Simply stated, plaintiff
       argues that once IDOT issued its letter of denial of Diehl’s application, the administrative
       process was concluded, Diehl lost its status and plaintiff’s application should then have had
       priority.
¶ 23        IDOT and Diehl first contend that plaintiff lacked standing to challenge IDOT’s issuance
       of a sign permit to Diehl and that the trial court was entitled to dismiss plaintiff’s complaint
       for writ of certiorari on that basis. We review de novo whether a party has standing. Sierra
       Club v. Illinois Pollution Control Board, 2011 IL 110882, ¶ 8.
¶ 24        Plaintiff responds that the standing issue is forfeited because it was not argued below. In
       Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252-53 (2010), our supreme court


                                                 -4-
       stated: “[w]hile a lack of subject matter jurisdiction cannot be forfeited [citation], a lack of
       standing will be forfeited if not raised in a timely manner in the trial court [citations].” We
       agree that this issue is forfeited here because IDOT did not complain plaintiff lacked standing
       in the trial court and Diehl only alleged that plaintiff failed to exhaust its administrative
       remedies in opposing plaintiff’s complaint for writ for certiorari.
¶ 25        Further, we find plaintiff has standing because the issuance of the Diehl permit blocked
       consideration of plaintiff’s application for the 31W350 property. Under the Highway
       Advertising Control Act of 1971, billboard signs along interstate highways and expressways
       cannot be closer than 500 feet to each other. 225 ILCS 440/6.03(b) (West 2008). In IDOT’s
       July 1, 2010, letter to plaintiff, IDOT stated that it intended to deny plaintiff’s application
       because Diehl’s permit was within 500 feet of plaintiff’s proposed location. Because the
       issuance of Diehl’s permit adversely impacted plaintiff, we find plaintiff has standing and
       we will address this appeal on the merits. See People ex rel. Klaeren v. Village of Lisle, 202
       Ill. 2d 164, 176 (2002).
¶ 26        In administrative law cases, we review the decision of the administrative agency, not the
       trial court. Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 531 (2006)
       (per curiam). Our standard of review in administrative review cases depends on what is in
       dispute: the facts, the law or a mixed question of fact and law. Goodman v. Ward, 241 Ill. 2d
       398, 405 (2011). Where the facts are undisputed and there is a dispute as to whether the
       governing legal provisions were interpreted correctly by an administrative agency, the case
       presents a purely legal question for which our review is de novo. Ward, 241 Ill. 2d at 406 (the
       de novo standard is characterized as independent and not deferential). Here, we will review
       de novo IDOT’s decision to issue Diehl a billboard permit because the central inquiry is
       whether IDOT complied with sections 522.80 and 522.60 of title 92 of the Code. See People
       v. Carpenter, 385 Ill. App. 3d 156, 161 (2008) (“[r]egulatory construction is a question of
       law that we review de novo”).
¶ 27        Administrative rules and regulations have the force of law and are construed under the
       same standards governing the construction of statutes. People ex rel. Madigan v. Illinois
       Commerce Comm’n, 231 Ill. 2d 370, 380 (2008). The court’s primary objective in
       interpreting an agency regulation is to ascertain and give effect to the intent of the regulatory
       agency. Madigan, 231 Ill. 2d at 380. The most reliable indicator of an agency’s intent is the
       language of the regulation itself. Madigan, 231 Ill. 2d at 380. “Where the language of the
       regulation is clear and unambiguous, we must apply it as written, without resort to extrinsic
       aids of statutory construction.” Madigan, 231 Ill. 2d at 380; see also Ries v. City of Chicago,
       242 Ill. 2d 205, 216 (2011) (if the language of a statute is clear and unambiguous, the court
       is “not at liberty to depart from the language’s plain meaning”).
¶ 28        Administrative agencies are generally bound to follow their own rules as written, without
       making ad hoc exceptions or departures in making decisions. Provena Health v. Illinois
       Health Facilities Planning Board, 382 Ill. App. 3d 34, 42 (2008). When an administrative
       agency has adopted rules and regulations under its statutory authority for carrying out its
       duties, the agency is bound by those rules and regulations and cannot arbitrarily disregard
       them in issuing a decision. Springwood Associates v. Health Facilities Planning Board, 269
       Ill. App. 3d 944, 948 (1995). An agency’s decision that is contrary to duly promulgated

                                                 -5-
       regulations must be reversed. Springwood, 269 Ill. App. 3d at 948.
¶ 29        Plaintiff argues that section 522.80 of title 92 of the Code unambiguously outlines the
       procedure IDOT must follow in considering permit applications. We agree.
¶ 30        At the relevant time section 522.80 of title 92 of the Code stated:
            “Denial of Application
                a) If a review of the application or a site investigation reveals that the permit
            application is incomplete, contains incorrect information or is not in compliance with the
            requirements of the Act or this Part [522.80], or that the applicant is the owner of, an
            abandoned or illegal sign, then the District shall notify the applicant in writing by
            certified mail of its intent to deny the permit application and state the reasons for that
            action. The notification shall inform the applicant that he/she has thirty calendar days
            from the date of receipt of the notification to challenge the intent to deny or to correct the
            deficiencies noted. No time extensions will be permitted. The challenge shall be made in
            writing, state the position of the applicant, the facts in support of that position and shall
            contain any relevant documentation. The challenge must be received in the District office
            within the thirty day period. The District will review the challenge and shall either
            approve or deny the application based on the requirements of this Part [522.80]. No
            appeal may be taken from the District’s decision on the challenged application. The
            applicant’s priority will be retained pending the District’s final decision. Only one
            application per applicant will be processed for the same site or any site within 500 feet
            of the site along an Interstate, expressway or a primary highway outside a municipality,
            or within 300 feet along a primary highway within a municipality, for which a permit
            application is submitted prior to the final decision by the District.
                b) If, after consideration of the challenge, the District approves the application, the
            procedures in Section 522.70 shall apply. If, after consideration of the challenge, the
            District denies the application, it shall be marked ‘denied’ on its face and the reason for
            denial stated on the application. The District shall notify the permittee of the denial by
            sending a copy of the denied application.” (Emphasis added.) 92 Ill. Adm. Code
            522.80(a), (b), amended at 30 Ill. Reg. 15792, 15809-10 (eff. Oct. 1, 2006).
       Section 522.60 of title 92 of the Code states that “[p]riority of processing permit applications
       shall be in the order they are received.” 92 Ill. Adm. Code 522.60(b), amended at 22 Ill. Reg.
       7262, 7276 (eff. Apr. 9, 1998).
¶ 31        The plain language of sections 522.80 and 522.60 clearly outlines the procedures IDOT
       is required to follow in considering applications. First, IDOT notifies the applicant in writing
       of its intent to deny. Second, the applicant has 30 days to respond with additional information
       or challenge the decision. Third, after receiving the applicant’s challenge, IDOT reviews the
       challenge and either approves or denies the application. The Code clearly states that “[n]o
       appeal may be taken from [IDOT’s] decision on [a] challenged application.” 92 Ill. Adm.
       Code 522.80(a), amended at 30 Ill. Reg. 15792, 15809 (eff. Oct. 1, 2006). We find these
       regulatory provisions to be clear and unambiguous. As an administrative agency, IDOT is
       required to follow its own rules as written and is not entitled to disregard them on an ad hoc
       basis. See Springwood, 269 Ill. App. 3d at 948.

                                                  -6-
¶ 32       Here, IDOT failed to follow its own rules. On June 26, 2009, Diehl submitted its
       application to IDOT. On July 17, 2009, IDOT informed Diehl that it intended to deny Diehl’s
       application because it failed to meet spacing or zoning requirements. On August 17, 2009,
       Diehl sent a written response to IDOT, challenging the July 17, 2009, notice. On September
       21, 2009, IDOT informed Diehl its challenge to IDOT’s notice of intent to deny the
       application “was received and carefully reviewed by [IDOT] personnel” but that it had “been
       determined the initial decision to deny your application stands and this file is now closed.”
       Upon receipt of the final denial, Diehl could have filed a petition for a writ of certiorari or
       a new application with IDOT but failed to pursue these remedies.
¶ 33       Plaintiff filed its application on October 19, 2009, and responded to IDOT’s intent-to-
       deny letter on November 18, 2009. Having received a final denial of its application, Diehl
       lost priority, and plaintiff’s application was entitled to priority under section 522.60 of title
       92 of the Code. However, IDOT never issued a final decision on plaintiff’s application, and
       on June 24, 2010, nine months after issuing its final denial of Diehl’s permit, IDOT granted
       Diehl’s permit. Nothing in the Code permitted IDOT to revisit its denial of Diehl’s
       application, and we hold that it was without authority to do so.
¶ 34       We note that the record shows IDOT’s denial of Diehl’s permit may have been premised
       on erroneous information provided by a Du Page County zoning technician. However, here
       the regulations are clear and unambiguous, and we will not read in exceptions, limitations
       or conditions that conflict with the clearly expressed intent of the legislature. See Solon v.
       Midwest Medical Records Ass’n, 236 Ill. 2d 433, 440-41 (2010). As our supreme court said
       in Outcom, Inc. v. Illinois Department of Transportation, 233 Ill. 2d 324, 328 (2009):
       “IDOT’s decision on a challenged application is final.” Unfortunately for Diehl, there are no
       provisions in section 522.60 that allow IDOT to revisit closed applications or make
       exceptions for inadvertent errors in permit applications. See Caldwell v. Nolan, 167 Ill. App.
       3d 1057, 1063 (1988) (“in the absence of express statutory language, an administrative
       agency lacks jurisdiction to grant a rehearing or modify or alter its decisions”). It is important
       as noted above that Diehl failed to take the necessary step of filing a timely writ of certiorari
       in order to save this particular permit application.
¶ 35       Because IDOT was without authority to issue Diehl a permit under the Code, we reverse
       IDOT’s decision to grant Diehl the permit. We remand to IDOT with directions that it
       reinstate the September 21, 2009, final denial of Diehl’s permit application.

¶ 36       Reversed and remanded with instructions.




                                                  -7-
