hold that the final administrative decision of the illinois department of transportation denying fully outcomes applications for permits to build highways said bill boards was not clearly erroneous and in fact was correct your honor simply put out com did not establish that under state law that that the product that the local zoning authorities considered the use of over the presence of a radio transmitter and attendant equipment shed on this particular parcel to be i use a sufficiently intensive commercial or industrial use of the land sufficient to constitute a business area within the meaning of the illinois highway advertising control act of one thousand nine hundred eighty one the first point your honour's to bear in mind is that outcome bear the burden of proof in this case after the conclusion of the under the illinois highway advertising contract one hundred seventy one outcome board the burden of proving that the proposed site was considered to be a business area within the meaning of the act i don't believe so your honor i believe that everything is everything the department raises is an expansion of and consistent with its administrative decisions it's administrative decisions specifically found for that they sought separate relief they bore the burden then of proving to the court that they are entitled to these two these permits additionally and again i want to reiterate that all the department's arguments as made for this cour are consistent with what its position was before the week with its position during the mystery proceedings and in any case ultimately you know of course forfeiture would be a limitation on the parties and certainly it would be within this court's province to consider any arguments that have been fully discussed that the determination of whether a party is to be entitled to a permit to build a billboard alongside it along the side of an interstate highway is to be made in the first and it's by the illinois department transportation that determination applications that apartment in this case considered the facts that outcome presented to it and i played those facts to see if they met the standard of law in other words the statutory definition of a business area that's basically the exact definition of a mixed question of law back that is subject to a clearly erroneous standard of review and in many cases the department is empowered to enforce and interpret the act and its interpretation is entitle to  eisenhower the interstate highway system as we know it came to be also came to be was public concern in opposition opposition to the proliferation of billboards alongside  the side of the interstate highways the highways became inundated with billboard advertising and this raised the public's eye or sufficiently for the federal government to take action the billboards were  the federal government passed the federal aid highway act also known as the bonus act under that statute the federal government was allowed to enter into agreements with states and pursuant to the terms if the states were to agree to maintain affective control over highway advertising meaning basically to limit it to areas that were commercial or industrial either zoned as commercial  if the customary use of those areas was commercial or industrial as of september twenty first nine hundred fifty nine a contemporaneous date with the passage of the nine hundred federal highway act of one hundred fifty eight the state receive a bonus payment in other words if the state affectively maintain control of billboards on a stretch of on a stretch of interstate highway then the state would receive a bonus one half of one percent hundred sixty five illinois had entered into a bonus agreement with the federal government after the bonus act expired by its terms libor johnson spearheaded the passage of the next federal statute tha different focus instead of giving the states the carrot of agree to control highway billboards and limit them and will give you this bonus the state the federal government provided in the highway beautif that if you don't enter into an agreement with us in which you maintain affective control over highway billboards limiting those billboards to commercial areas or industrial industrial areas you will lose ten percent of your federal funding and in fact the federal government implemented then then this step you know not that if not just that if the states enter into agreement to limit billboards you get a bonus here if you don't enter into an agreement to limit billboards you lose ten percent of  your federal funds as a result of these attacks not only were billboards along interstate highway limited but non compliant boom boards were removed by the school or in other words billboards that had been placed in areas that were not commercial or industrial or or where the customer use was not commercial industrial had to be removed and the statute made provisions for the payment and you know who bears the expense of removing those billboards and many billboards were removed under those acts to comply with the federal laws and the agreement that illinois entered into with the federal government in order to obtain bonus payments and to ensure that it not lose ten percent of its highway funding but general assembly passed the and incidentally annual federal highway funding easily runs into the hundreds of millions of dollars you know and that's annually and certainly in the states for the school situation is no secret and that the loss of those funds are imposed obviously a huge  purpose of the illinois act is to protect the public investment of the highways to promote the recreational value of travel to preserve natural beauty and promote the early display of billboards these are the legislative judgments that went into the passage of the illinois act and certainly the statutory exceptions to the general rule that how we said billboards are prohibited must be construed narrowly because they are exceptions that must not be allowed to swallow the rule and because illinois has contractual obligations with a lot of money at stake requiring it to remain at billboards to maintain that give control of billboard hi the business area exception to the general rule that highways say billboards are not permitted section three point one two of the only act defines business areas as including only areas incorporated in or commercial or both so in other words to show that there was a business area outcome need to prove that the land use going back now fifty years was established under state law to be commercial or industrial the custom use under state law was commercial or industrial this definition requiring the customer use of the area to be a business area it is backed by the rationale that an area marked by a commercial or industrial use there is no expectation of an interrupted vista essentially an intensive commercial industrial use would destroy any expectation that a driver on the interstate highway has i'll be able to see a to be free of your board ever ties in section three point one zero of the act defines commercial or industrial activities we call throughput one two so as a business area is an area marked by commercial or industrial land use commercial or industrial activities under the act are those activities generally recognized as commercial or industrial by was owning authorities of the state is unnecessary and this c aides to interpret it now there is still an issue of whether the facts meet the statutory standard of business area so in that regard there's an analysis as to whether there was a business areas here but as to because there cannot be outcome makes a lot of the fact that in the department's regulations it defines a business area as an area where the land use was business commercial or it can't the regulations cannot and large the scope of the general decision maker before it was necessary making arguments it wasn't a party in that case the agency said and determined whether outcome met its burden and the department's decision was that outcome did not prove that department's opening brief it specifically says that outcome did not establish that the radio transmitter equipment shed were considered to be a commercial or industrial use by the local zoning authorities that in fact the locals only authority consider it to be an agricultural use and that is basically what the department its argument is here that outcome has not shown has not provided any source of state law indicating that this radio transmitter  commercial industrial use is not showing any zoning treatment as required by the act that this was a commercial industrial use that was the basis of the holding that's explicitly stated in the privacy issue and that's the basis for the primary argument by the department state is the treatment of the local zoning authority of a radio tower in this case and that each case evil's owning code which was specifically referenced in the department's how i misstated decision and which specifically characterizes a radio tower as an agricultural use of the land and then when you just talk about the agencies decision that's the october two thousand and four denial letters i write that is that is correct  final of that is the final decision and that decision is this if italy says the actual presence of the power does not satisfy the requirements of section five twenty two point two will hold and then underlines that this was and has continuously been used as a business commercial or industrial so the administrative agency is making a binding that is not of business use but then goes on in the second to the last paragraph you talk about the building and the permanency and that it says is not used as an industrial site so we're called upon to review this decision which in some parts says it's not business in some parts as it's not industrial it seems to me of how the local state law considered the use of the property how it defined the use of the property made by the radio tower and goes on to say that say that it has not been goes on to say that the actual presence of the basically department is holding there that the shed itself does not transform this into a commercial or industrial use perhaps the problem is only industrial site there but it's really a reference shows that's concerning whether that outcome prove that this is a commercial or industrial and dust will say and that's the decision before before this court thank you thank you your honors several points of disagreement but a big point of contention in this case has been whether our cameras was required to reduce evidence of zoning treatment in this case and that the argument his frequently is centered on the zero whether that that definition is the same as the definition in the act is an apt one i think they are substantively similar but i think that the change that the department made was a significant one and i don't believe as the i don't believe it's substantially changed the scope or to either limited or expect expanded but i think the change that th department made to the code section are significant the the act gave to the department the authority to enact regulations that were consistent with yeah and if you look at the definition of business area within the code one will see that the general assembly defined a business area to be areas own for business commercial or industrial activities then when it goes on to discuss business area along interstate highways it references commercial or industrial activity when the department in acted a definition for a business area it  business back into the stream string a string of words and then when it expanded on the definition in five twenty two point two zero to discuss and rated areas it repeated the word business for business commercial or industrial and it is from bush is it your position that the controlling principles are found in the administrative or regulation rather than the act no i believe the controlling principles think cannot trump the statute but i think it's consistent with the i don't think it extends the scope or the reach of the act but i think it's entirely consistent with the act and i think the department has conceded this in its frequency and that there is no substantive difference so i think the department to the mind of the department in acting is regulations but in looking at it and trying to determine what they did it appears that they've tried to set forth the intent of the general and assembly because the word business commercial the string business commercial well course you're the boss i'm a then i'm concerned in in this case with unintended consequences you have made an argument in your grief and you called a court has agreed with you that this piece of property is used as a business commercial or an industrial piece of property which justifies the brush and of course the act yes ok i'm wondering about other other places that we're not think you know of and if you just want to briefly address this that would i would like that and i'm thinking of things like cable television electrical lines cell phones cell phone lines which are carried on telephone lines in other words other things that rest along the side of the highway that move may be the business product from some distant place along the highway to someplace else and i'm a my question is are there other areas other factual areas like those that i've mentioned that may be impacted by the well knowing the creativity of lawyers i'm sure there are enough areas that somebody might try to extend any particular holding to with respect to the particular areas particular types of activity you've cited for example electrical lines or telephone lines i would equate those two more like a railroad line and railroads have been specifically identified as something that is not a business activity so in all candor i would have to say that i would not include a utility line or something that runs along the highway from the public utilities might not be included and i'm not i'm not excluding it because it's a public utility i'm excluding it because it runs along the highway and i don't expect i wouldn't expect that anything that runs along the highway for a long distance would be expected to be included because you could then erect something at every point along the exclude things railroads because they something could be erected along every square foot of the highway not because the type of activity because really what i'm concerned so but radio does not suffer from that same defect it has a fixed location it doesn't have wires it doesn't run along the highway so i would distinguish a radio broadcast entire which has one fixed location and that does not run for two more interminable miles along the highway so with respect to those specific examples i would distinguish along that line if we subscribe to your interpretation in this case is the area i believe that might be how there's there's one there it could be either of those i bill i don't know whether it's the two billboards that are two six hundred fifty feet apart or whether the six hundred fifty feet is how far the your honor has properly noted is the propriety of the department of transportation's denial of the permit and the issues that were set forth in this denial or whether this weather radio broadcasting is a public utility and that it was the reason that was set for that it was a public utility an implicit in that is that public utility you public utilities are not a business and that they cannot define the site on which they sit now we believe that that analysis was wrong for all three reasons that were implicit in that analysis first radio broadcasting is not regulated in the state of illinois as a public utility second even if it is a public utility it could still be a business there is the state law in illinois the case law discussed in this recites that public utilities are businesses i could probably consume the rest of my time list in a public utilities that  businesses the most to most prominent examples are in and we knew we they are both utilities they are both businesses public utilities can be businesses but in the so the conclusion that the department of transportation reached that radio broadcasting is a utility and that it is not a business was an error and finally the notion that the radio broadcasting did not define decide on which it reached the simply a logical outcome was required to establish that this particular site had been used for radio four for a business purpose for the requisite period of time it was undisputed that this site had been used for radio broadcasting for the requisite period of time and that department concluded that will because this activity could have taken place somewhere else because it could take place in more than once site it didn't define this particular site well that wasn't the standard outcome was required to establish the use of this site and it did and the department simply ignore it there and concluded that will because it could have happened somewhere else we're going to ignore that took place here and that that conclu the department is now arguing that it's and now also that it denied the permits for a different reason it's trying to suggest that it denied the permits because there was insufficient evidence  i think they're trying to truncate their in their own denial letter their denial letter recites at the top of the second page that radio broadcasting is a public utility it then discusses the structure but the  discussion of the failure to do a due to a dues zoning evidence is a conclusion reached and it's the summary of their entire letter it's not a separate conclusion it's a summary they conclude that radio broadcasting is a public utility that public utilities don't define the land on which they sit and therefore the land never lost its agricultural character the conclusion about lack of zoning is a corollary to their or their public utility argument it's not a separate conclusion that they failed to reduce evidence of zoning so there truncating out that that sentence as if the first part isn't there and in treating it as if it's a second base it's all part of the same analysis in the department it's been a complaint that was set forth in our brief that the department throughout the life of this case has continually asserted new and additional bases that were not set forth in it commercial industrial use of property has to be sufficiently invasive that not just any commercial industrial use or property but an invasive use that would cause one to believe it would interrupt the vista and they said in missouri case  this proposition and i looked at that case and i don't think it's that's what it says and i can't find any missouri case actually that says that but this case is about illinois law and the illinois law defines what will and will not constitute a business commercial industrial use of property and there's nothing in the illinois law that talks about a use of property constituting a blight on the vista it has to be visible from the roadway and this tower is visible from the roadway it's several hundred  there's a structure surrounded by fencing with high voltage signs there's nothing that talking about having the constitution take up a sufficient footprint on the land and then the department goes on to talk about how it has to have should be in receiving and people coming and going and  requirements simply are not written into this law and it's evidence of that the department trying to rewrite and really legislate as it goes not all businesses involve shipping and receiving most service industries don't and not all industries and more not all businesses for that sake involve people coming and going most mail order companies don't but this is evidence of the department trying to recreate in add new requirements to the regulations that don't  legislature or the department of transportation for that matter wanted such limitations and regulations in its regulations or in its law it would have put them there the the exclusions are that it has to be a permanent activity it can't be a railroad it can't be a farm activity it can't take place in a residence and it can't be a billboard these other requirements that they're talking about simply aren't pressed and in this argument that they're making this highlights the danger of not requiring the department to comply with  regulations the notice of intent to deny it was issued in this case required put out come on notice that it's permit was going to be denied because the structure was temporary the regulations require the given the opportunity to notice the opportunity to be heard and then the department is required to state in its the nihil each reason for its not that prevent surprise it gives that applicant a notice an opportunity to be he and i think most importantly is it prevents it ensures fair in evenhanded application of the regulations but it puts the world on notice of how the department is interpret and apply its regulations and if we have these some more fist definitions and applications we know about and we're not hearing about of the supreme court and in this case that isn't what happened they gave a notice of intent and i didn't i stating that it was a temporary structure and here we are we're hearing these additional definitions and codes are there for a reason is to give the applicant every opportunity to respond because there is no appeal from a denial the only appeal is demanding this procedure and when you don't when you permit the department to come into court offer these new procedure these new reasons and use new bases it denies the applicant the opportunity to respond and it puts them in a position of being faulted for not offering evidence that didn't know anything to provide now want to respond briefly with respect and we've heard would receive the primer on on the the act and we've heard suggestions that granting a permit in this case will result in the old state of illinois losing hundreds of millions of dollars in funding in the fifty one years since this act has been pastors not one reported case of any state losing its funding because federal authorities disagreed with the grant of a single billboard permit and so the suggestion that it could come any day i think this rhetoric these billboards have been up a couple of years now hasn't happened s something outdoor advertising is an integral part of the business and marketing function and stablished segment of the national economy which serves to promote and protect private investments and commerce and industry and should be allowed to operate in business areas that's not from a trade journal that is from the general assembly in an act in this legislation they recognize the importance of outdoor advertising in the state and outcome was entitled to fair and even handed enforcement of these regulations the department of transportation should be held to the same standard as an applicant in should be required to comply with its own regulations and there's one question that hasn't been answered in all the briefing in this case and i think it's one that the department cannot answer without admitting it does not want to admit they've told us what billboard advertising is not to say they tell us what radio broadcasting is not but they can't tell us what it is if it's not business land and under the statute under the act under three point one zero it's not that apartment that defines it it is the local it was zoning authority and the local zoning authority defined it in this case it  defined it to be an agricultural use of the land but apartments been answering that question constantly throughout its briefs and in fact in its original decision when it said that prior to x ation right the use of the land was this particular use radio tower as agricultural that is the answer that is the simple answer and the easy answer to the question the council has at the end current accounts of the central plains where the outcome was required to reduce evidence of zoning treatment the act specifically requires it to a business area requires proof of commercial or industrial under state law and dispositive factor in making the determination and all along that apartments explained that the local zoning authority would not consider this radio tower to be an industrial commercial use therefore it did not consider this area to be a business just consider this area to be agricultural and nature and that answers the question they simply did not meet the clear bird in their clear mandate under sections three point one  three point one two of the act  the department certainly did not make a substantive change in what constitutes a business area when it enacted its regulations but we got a list of that outcome still has to show that it's use and that the use o the area the entire twenty acre farm land as agricultural land if this was a commercial or industrial part of that parcel then the entire parcel could not have been assessed as agricultural furthermore the argument the notion that simply because a radio transmitter a radio tower is connected to a business does not mean that the tower itself makes an industrial commercial use of that land simply saying something is business connected does not mean it's a commercial or industrial activity according to the local zoning authorities indeed outcomes argument makes no reference to the treatment of local zoning authorities or state law as required by three point one zero and three point one two furthermore outcome entirely ignores the fact that the scope of the business area exception must be construed narrowly first as an exception to a general rule that these highway signs are prohibited next it's expensive reading would dramatically increase the scope of that business area if anything that was connected to a business on a piece of land that certainly is inconsistent with the intent of the statute and which is consistent with the missouri appellate court's decision and tell you and it's inconsistent with the department's obligations and the state's obligations dramatically expanded and loose definition of business area to encompass every piece of land in which something resides which is somehow connected to a business because that's the argument that's the definition it's somehow used in the stream of con commerce  related to a business enterprise if we expanded it like that munch then illinois would like we no longer be seen to can effectively control i we advertising because illinois has to limit it to zone commercial or industrial as of september twenty first one hundred fifty nine which the customary use of the land as of that time was commercial or industrial and if we consider anything to be somehow business related to be commercial or industrial then we've lost any real we stricture on where highway billboards can be placed and it's simply not unreasonable to think to think in that case then the federal government would initiate the proceedings you know  initiate their process to plough pull funding or restrict funding or at least or make us repay bonus money that we got for that given section of land to ask a question about the six hundred sixty feet six hundred sixty feet it applies in this case because this is concerns of billboards that are going to be within six hundred sixty feet of the interstate highway right of way the speaking between the billboards along but along interstate highway is the devices section six point zero three of the act to be five hundred feet billboards and cell sixty five hundred feet apart but the act applies to any billboard that would be within the edge of the right of way and six hundred sixty feet out to meet the business of the exception it had to show that there were commercial and industrial activities taking place on this land for the last fifty years how do you show something as a commercial industrial activity you show rather how that activity is treated the zoning authorities they made no such showing to the contrary the local zoning authority considered the radio tower and a tenant quickly shed to be an agricultural use that ends the inquiry that was the nature of the department's decision it pages a twelve and a thirteen to the appendix to the curtains or brief and that's been the department's position all along their arguments notwithstanding they did not meet the statutory requirements to show that they are entitled to the permits in this case and what the ask this question do is dramatically expand an exception to the general rule that highway billboards are not for mid and that expansion well profound effects not only on state funding but the funds the state gets from the federal government but also on the experience of using our highways indeed it was because of the inundation of the interstate highway system with billboards is why these laws were passed in the first place and scores of billboards were pulled down outcome as you do is to start the move back towards that inundation by an expansive definition of business area that's just inconsistent with with the statutes for these