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Wednesday, November 16, 2011

Billboards, Leases, Zoning, and Takings

Four Riders of the Apocalypse or a Good Way to Exorcise an Unwanted Billboard?

In a recent decision, an Illinois appellate court handed a legal victory to municipalities who properly use zoning to require the eventual removal of billboards from leased land.

In the case of CBS Outdoor, Inc. v. Village of Itasca and Wayne Hammer Trust Company, N.A., the court considered whether a municipal zoning action that requires the removal of a billboard is subject to the 90-day statute of limitation applicable to zoning actions in 65 ILCS 5/11-13-25(a), or the 5 year statute of limitation applicable to eminent domain actions in 735 ILCS 5/13-205.  The court also looked at whether a billboard owner has standing to bring a takings claim under the Eminent Domain Act against zoning actions that require the eventual removal of a billboard at the end of a lease term.

The court concluded that a challenge to a zoning condition that requires the removal of the billboard at the end of a lease was subject to the 90-day zoning statute of limitation because that condition cannot be separated from the zoning action.  The court explained that the zoning statute of limitation applies to “any” review of a zoning decision, including challenges to specific aspects of an otherwise valid zoning decision.  Because CBS Outdoor waited 351 days to file its lawsuit, it was time barred under that 90-day zoning statute of limitation.  The court also held that CBS Outdoor did not have standing to bring an action for compensation under the Eminent Domain Act because the Village’s zoning actions were part of a negotiated arrangement with the property owner and tying the removal provision to CBS Outdoor’s lease term was not a taking.

The CBS Outdoor case provides guidance for municipalities wanting to remove billboards on leased land that are the subject of a conditional zoning approval (i.e., special use, planned development).  So long as the removal condition is tied to the term of the lease, it will not be a compensable taking.  Also, if the removal condition is part of a valid zoning approval, any challenge to that condition must be brought within 90 days of the zoning approval.

Post Authored by David Silverman.


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