adverse impacts will be mitigated.” Plainfield Municipal Code § 9-37(8). There is no similar
provision allowing for unique conditions to be imposed on business licenses.

The Court specifically instructed CBS that to state an equal protection claim, it must
identify a situation “where the property owner requested a zoning variance or special use permit
and the Village granted the request without conditioning the variance upon removal of the
billboard.” CBS Outdoor, 959 F. Supp. 2d at 1066 (first emphasis added). Instead, CBS has
identified a situation where a co-tenant of the property requested a business license—a different
process to reach a decision governed by different standards and made by a different entity. CBS
has once again failed to allege a similarly situated party.

Even if Lamar Advertising were similarly situated to CBS, identifying a similarly
situated party is only half the battle in a class-of-one equal protection claim. CBS must also
allege facts that establish that there is no “rational relationship between the disparity of treatment
and some legitimate governmental purpose.” Srail v. Vill. of Lisle, Ill., 588 F.3d 940, 946 (7th
Cir. 2009) (quoting City of Chicago v. Shalala, 189 F.3d 598, 605 (7th Cir. 1999)). The Village
argues that the 2006 Sign Code should not be conflated with the Removal Provision, but that it is
nonetheless not a violation of the Equal Protection clause to fail to enforce an ordinance to the
fullest extent possible. (R. 43, Def.’s Reply at 3-4.) “To get past a Rule 12(b)(6) motion to
dismiss on a class of one equal protection claim, a plaintiff must allege facts sufficient to
overcome the presumption of rationality that applies to government classifications.” Kopp, 725
F.3d at 686 (internal quoiation marks omitted) (quoting Flying J Inc. v. City of New Haven, 549
F.3d 538, 546 (7th Cir. 2008)). “[TJhe test for rationality does not ask whether the benign
justification was the actual justification. All it takes to defeat the plaintiffs’ claim is a

conceivable rational basis for the difference in treatment.” Jd. Thus, the plaintiff bears a heavy

14


On April 30, 2012, an officer of the Village wrote to Red River that the Property was in

violation of Section 9-95(3) of the 2006 Sign Code and the PUD Agreement. (Id. 455; R. 1, Ex.
9, Apr. 30, 2012 Letter to Red River.) The letter instructed that the Sign should be removed by
May 30, 2012, and that failure to remove the Sign would result in a fine of up to $750 per day
and possible prosecution. (R. 32, Am. Compl. 55; R. 1, Ex. 9, Apr. 30, 2012 Letter to Red
River.)
PROCEDURAL HISTORY

On June 4, 2012, CBS filed its complaint against Red River and the Village. (R. 1,
Compl.) The Village moved to dismiss CBS’s complaint for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). (R. 12, Def.’s Mot. Dismiss.) The Court granted that
motion, finding that CBS had failed to state a federal claim and declining to exercise jurisdiction
over its state law claim. (R. 27, Mem. Op. & Order); CBS Gutdoor, Inc. v. Vill. of Plainfield, I1.,
959 F. Supp. 2d 1054 (N.D. Ill. 2013). On September 13, 2013, CBS filed an amended
complaint. (R. 32, Am. Compl.) In Count I, CBS alleges that the 2006 Sign Code deprives CBS
of its constitutional rights to free speech. (/d. §§ 65-67.) In Count II, CBS alleges that the
Removal Provision of Ordinance 2548 constitutes a deprivation of substantive due process, (id. J
71); a deprivation of equal protection of the law, (id. § 72); and a deprivation of CBS’s freedom
of speech, (id. § 73). In Count III, CBS seeks a declaratory judgment that the Removal Provision
is invalid and unenforceable under Illinois State law and a permanent injunction against its
enforcement. (/d. § 79-81.) CBS also seeks a preliminary injunction prohibiting enforcement

pendente lite. (Id. ¥§ 56-64).


to the zoning administrator; after several steps, if the application is successful, the result will be a
municipal ordinance authorizing the special use. Plainfield Municipal Code § 9-37. CBS does
not allege that Ordinance 2548 was enacted by a process other than the one outlined in Chapter
9, Section 37 of the Plainfield Municipal Code. Drawing all inferences in CBS’s favor, as the
Court must, and without any guidance from the Village in terms of the interpretation of its
municipal code, the Court concludes that Ordinance 2548 is a part of the Zoning Ordinance for
all practical purposes and was enacted to enforce the 2006 Sign Code against CBS. Because
CBS has alleged an intention to maintain its Sign, an act of speech that is plausibly threatened by
the 2006 Sign Code as enforced by the Removal Provision, the Court finds that CBS has alleged
a sufficient injury to satisfy the preenforcement injury-in-fact standing requirements. See Am.
Civil Liberties Union, 679 F.3d at 590-91.

The second element of standing—a connection between the alleged injury and the
defendant’s conduct—is easily met here: the threatened removal of CBS’s Sign is a direct result
of the Village’s enactment of the Removal Provision. The Court thus turns its attention to the
redressability of CBS’s alleged injury. CBS asks the Court to permanently enjoin enforcement
of the 2006 Sign Code. Having determined that the Removal Provision was enacted to enforce
the 2006 Sign Code, the Court finds that CBS’s alleged injury would be redressed by the
requested relief. The Court accordingly concludes that CBS has alleged facts sufficient to
establish standing to challenge the 2006 Sign Code. Because lack of standing is the only reason
the Village provides for the Court’s dismissal of Count I of the Amended Complaint, the Court

has no grounds to dismiss Count I.

10


dismiss Counts I and II of the amended complaint. (R. 36, Def.’s Mot. at 2.) CBS concedes that

its substantive due process claim in amended Count II simply repeats the claim this Court
previously dismissed. (R. 42, Pl.’s Resp. at 1.) CBS contends, however, that it added to its
previously dismissed First Amendment and equal protection claims. (/d.) Consequently, the
Court dismisses with prejudice the substantive due process claim in CBS’s amended Count II for
the reasons stated in its initial opinion and proceeds to consider the remaining claims.

The Village additionally argues that “[a]lthough the concluding sentence of this Court’s
prior ruling appears to dismiss the entire action without prejudice,” the Court must have meant to
dismiss all but the state law claim with prejudice. (R. 36, Def.’s Mot. at 3.) This Court aims to
be transparent in its holdings and does not make a practice of intending the exact opposite of
what it has said. The Court thus encourages the parties to read the concluding sentence of this

“

Court’s prior opinion—“CBS’s complaint (R. 1) is dismissed without prejudice.”—as it is
written. It has long been the practice of courts in the Seventh Circuit to allow plaintiffs to file
one amended complaint as a matter of course. See Bausch v. Stryker Corp., 630 F.3d 546, 562
(7th Cir. 2010); Fuhrer y. Fuhrer, 292 F.2d 140, 142 (7th Cir. 1961). The Village’s contention
that CBS’s claims “were fully examined by this Court on their merits” is simply false; in the
Court’s prior opinion, the Court did not hold that CBS had no claim, only that CBS failed to
sufficiently plead a claim. See, e.g., CBS Outdoor, 959 F. Supp. 2d at 1066 (finding that CBS
failed to allege facts that would show disparate treatment). The Court declines to dismiss CBS’s
amended complaint out of hand and turns now to the merits.

I. Whether CBS alleges facis sufficient to sustain a First Amendment claim

The Village argues that CBS’s claim that the Removal Provision deprives CBS of its

freedom of speech should be dismissed because the Court has already adjudicated the claim and


On October 11, 2013, the Village moved to dismiss CBS’s amended complaint for failure
to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (R. 36, Def.’s Mot.) That
motion is presently before the Court.

LEGAL STANDARD

A motion under Rule 12(b)(6) “challenges the sufficiency of the complaint to state a
claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police of Chi. Lodge
No. 7, 570 F.3d 811, 820 (7th Cir. 2009). When reviewing a Rule 12(b)(6) motion to dismiss,
the Court accepts as true all well-pleaded factual allegations in the complaint and draws all
reasonable inferences in the non-movant’s favor. Reger Dev., LLC v. Nat'l City Bank, 592 F.3d
759, 763 (7th Cir. 2010). Pursuant to Rule 8(a)(2), a complaint must contain “a ‘short and plain
statement of the claim showing that the pleader is entitled to relief,’ sufficient to provide the
defendant with ‘fair notice’ of the claim and its basis.” Tamayo v. Blagojevich, 526 F.3d 1074,
1081 (7th Cir. 2008) (quoting Fed. R. Civ. P. 8(a)(2) and Bell Atlantic Corp. v. Twombly, 550
USS. 544, 555 (2007)). Rule 8(a)(2) requires more than mere “labels and conclusions” or a
“formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. “Detailed
factual allegations” are not required, but the complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
USS. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim has facial plausibility when
its factual content allows the Court to draw a reasonable inference that the defendant is liable for
the misconduct alleged. Jd.

ANALYSIS
As an initial matter, the Village contends that the amended complaint fails to add facts or

claims to the original complaint, which the Court dismissed, and the Court should accordingly


the injury-in-fact requirement in a preenforcement action, the plaintiff must show ‘an intention to

engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a
statute, and that there exists a credible threat of prosecution thereunder.’” Am. Civil Liberties
Union of Ill. v. Alvarez, 679 F.3d 583, 590-91 (7th Cir. 2012) cert. denied, 133 S. Ct. 651 (2012)
(quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)).

CBS argues that it has alleged an injury “as the result of the Village’s efforts to enforce
the Removal Provision as an extension of the [2006 Sign] Code.” (R. 42, Pl.’s Resp. at 5.) CBS
alleges that in each of the years 2009, 2010, 2011, and 2012, it earned over $100,000.00 from the
Sign. (/d. | 33.) CBS alleges that it expects to continue to earn such income from the Sign, and
that it will lose that income and face potential liability for breach of contracts with its advertisers
if the Village is permitted to enforce the Sign Code through the Removal Provision. (Id. J 34-
36.) CBS would like to maintain its Sign, but the Removal Provision threatens its ability to do
so.

The Removal Provision does not include language indicating that it is meant to be an
extension of the 2006 Sign Code or is unable to stand alone, (see R. 1, Ex. 2, Ord. 2548), and
neither does the 2006 Sign Code mention or incorporate future ordinances that pertain to specific
signs, such as the Removal Provision, (see R. 1, Ex. 7, 2006 Sign Code). Nevertheless, the Court
determines that the Removal Provision is a method of enforcing the 2006 Sign Code. See CBS
Outdoors, 959 F. Supp. 2d at 1064 n.3 (determining that the Removal Provision was enacted as a
part of the Village’s regulatory scheme regarding signs). Chapter 9 of the Plainfield Municipal
Code is a “comprehensive amendment” referred to as the Zoning Ordinance, and it includes
directives about signs as well as special use permits. Plainfieid Municipal Code § 9-1. The

Plainfield procedure for obtaining a special use permit begins with submission of an application


NE

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
CBS OUTDOOR, INC., )
)
Plaintiff, )
) No. 12 C 4317

v. )

) Chief Judge Rubén Castillo
VILLAGE OF PLAINFIELD, ILLINOIS, )
and RED RIVER PLAINFIELD, LLC, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff CBS Outdoor, Inc. (“CBS”) brings this action against Defendants Village of
Plainfield, Illinois (the “Village”) and Red River Plainfield, LLC (“Red River”) alleging
violations of CBS’s constitutional rights to due process, equal protection of the law, and freedom
of speech. Presently before the Court is the Village’s motion to dismiss the amended complaint
for failure to state a claim upon which relief may be granted. For the reasons set forth below, the
Village’s motion is granted in part and denied in part.

RELEVANT FACTS

CBS, a Delaware corporation, is in the outdoor advertising business and owns or leases
property on which it maintains outdoor advertising structures. (R. 32, Am. Compl. {ff 15-16.) It
sells or donates its advertising space to third parties, or uses the space itself, to communicate
commercial and non-commercial messages to the public. (/d. § 16.) The Village is an Illinois
municipal corporation located in Will and Kendall Counties. (/d. § 17.) Red River is an Illinois
limited liability company with its principal place of business in Naperville, Illinois. (/d. { 18.)

Masud M. Arjmand, a resident of Naperville, Illinois, is the sole member of Red River. (Id.)



treatment. Those requirements are well-established.” Billington v. Vill. of Armington, 498 F.
App’x 572, 574 (7th Cir. 2012) (citing Thayer v. Chiczewski, 697 F.3d 514 (7th Cir. 2012);
Olech, 528 U.S. at 563-64) (internal citations omitted). The similarly situated standard is
rigorous as “the persons alleged to have been treated more favorably must be identical or directly
comparable to the plaintiff in all material respects.” Reget, 595 F.3d at 695. Unless a plaintiff
alleges violation of a fundamental constitutional right or discrimination against a protected class,
“legislation is presumed to be valid and will be sustained if the classification drawn by the statute
is rationally related to a legitimate state interest.” City of Cleburne v. Cleburne Living Ctr., 473
USS. 432, 440 (1985).

In its previous opinion, this Court held that CBS had failed to allege the necessary
elements of an equal protection claim because it had failed to allege disparate treatment. CBS
Outdoor, 959 F. Supp. 2d at 1066. It instructed that in order to make out a class-of-one equal
protection claim, CBS would need to allege that the owner of property upon which a legally non-
conforming billboard was situated requested a zoning variance or special use permit and the
Village granted the request without conditioning the variance upon removal of the billboard. Id.
In its amended complaint, CBS alleges that the Village denies CBS equal protection of laws by
enacting and threatening enforcement of the Removal Provision but allowing other legal non-
conformities to remain without the threat of removal. (R. 32, Am. Compl. {| 72(b)-(c).)
Specifically, CBS alleges that Lamar Advertising maintains an off-premise billboard that is a
legal non-conformity and is similar to the Sign. (/d. § 72(d)(i).) Since Lamar’s sign was
constructed: (1) the property on which it is situated was sold, (2) a tenant in one of the rental
units vacated, (3) a new tenant moved in and opened a new business, and (4) a vacancy has

existed for more than 30 days. (/d.  72(d)(vi).) CBS alleges that Lamar’s sign has not been

12


Il. Whether CBS alleges facts sufficient to state an equal protection claim

The Village next argues that the Court should dismiss the equal protection claim in Count
TI because CBS has again failed to allege facts “sufficient to overcome the presumptive
rationality and validity of the challenged ordinances.” (R. 36, Def.’s Mot. at 4.) “The Equal
Protection Clause of the Fourteenth Amendment prohibits state action that discriminates on the
basis of membership in a protected class or irrationally targets an individual for discriminatory
treatment as a so-called ‘class of one.’” Reget v. City of La Crosse, 595 F.3d 691, 695 (7th Cir.
2010). To state a class-of one equal protection claim, the plaintiff must allege that it “has been
intentionally treated differently from others similarly situated and that there is no rational basis
for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

The Seventh Circuit has not resolved its split over whether a plaintiff alleging a class-of-
one equal protection claim must establish animus or improper motive. Knaus v. Town of
Ledgeview, No. 13-2956, 2014 WL 1378128 (7th Cir. Apr. 9, 2014) (citing De/ Marcelle v.
Brown Cnty. Corp., 680 F.3d 887 (7th Cir. 2012) (en banc)). In Del Marcelle, the Seventh
Circuit, sitting en banc, split three ways on the issue:

Some members of the court thought the plaintiff should be required to plead and

prove that the disparate treatment was motivated by personal ill will or other

illegitimate purpose; that is, a purpose unrelated to public duty. See [Del

Marcelle, 680 F.3d at 889] (Posner, J.) (plurality opinion) (writing for four

members of the court). Others expressed the view that personal animus or other

improper motive is not an element of the claim but just one way to prove that the
defendant’s action lacked a rational basis. See id. at 913-14 (Wood, J., dissenting)

(writing for five members of the court). One member of the court concluded that

motive or intent “has no role at all” in class-of-one litigation. See id. at 900

(Easterbrook, C.J., concurring in the judgment).

D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681, 685 (7th Cir. 2013) cert. denied, 134 S. Ct. 1308

(2014). “At a minimum, however, [a plaintiff] must show that she was intentionally treated

differently from others similarly situated and that there is no rational basis for the difference in

11


found it lacking. (R. 36, Def.’s Mot. at 3.) The Court previously found that the Removal

Provision is undisputedly content-neutral and that it is an attempt to further the legitimate
governmental interests of traffic safety and aesthetic concerns. CBS Outdoor, 959 F. Supp. 2d at
1064. CBS has provided no reason to reconsider that holding, and the Court declines to rehash
that analysis. The amended complaint adds to CBS’s initial First Amendment claim, however,
and includes arguments the Court has not previously adjudicated.

In Count I of the amended complaint, CBS contends that the 2006 Sign Code is
unconstitutional because it (1) restricts non-commercial speech while permitting “unfettered
commercial speech;” (2) discriminates between types of commercial speech by prohibiting off-
premise advertising; and (3) requires Village pre-approval for certain speech without clear
standards. (R. 32, Am. Compl. 4 67.) The substance of the Village’s two-sentence argument that
the Court should dismiss Count I seems to be that CBS lacks standing to challenge the 2006 Sign
Code. (R. 36, Def.’s Mot. Dismiss at 3.) Regardless of the poorly-formed nature of the
Village’s standing argument, “the court has an independent obligation to assure that standing
exists.” Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009).

It is the plaintiff's burden to allege facts that establish standing. FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 231 (1990) holding modified by City of Littleton, Colo. v. Z.J. Gifts D-4,
L.L.C., 541 U.S. 774 (2004) (internal citations, alterations, and quotation marks omitted). In
order to establish Article III standing, a plaintiff must demonstrate: (1) an injury in fact; (2)
connection between the alleged injury in fact and the alleged conduct of the defendant; and (3) a
likelihood that requested relief will remedy the alleged injury in fact. Vi. Agency of Natural Res.
v. United States, 529 U.S. 765, 771 (2000); Rawoof v. Texor Petroleum Co., 521 F.3d 750, 756

(7th Cir. 2008) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “To satisfy


In 2005, McDonald’s USA, LLC (“McDonald’s”) approached the Village to propose
developing the McDonald’s Site as a typical McDonald’s restaurant with a drive-through
window. (Jd. § 44.) On April 17, 2006, the Village enacted Ordinance 2548, which granted the
special use permit McDonald’s needed to develop its proposed restaurant at the McDonald’s
Site. Ud. 9 46; R. 1, Ex. 2, Ord. 2548.) Ordinance 2548 granted the permit subject to two
conditions: (1) the execution of a statement of intent; and (2) “Removal of the [Sign], when the
current lease expires in 2011, or sooner if possible” (the “Removal Provision”). (R. 1, Ex. 2,
Ord. 2548 at § 3.) CBS alleges that the Removal Provision pertains only to Lot 2, not to the
McDonald’s Site, and that McDonald’s and G&S agreed to the inclusion of the Removal
Provision in Ordinance 2548 “only after it became clear to them that, if they did not agree, the
Village would significantly delay or postpone enactment of Ord. 2548 and approval of the
proposed Planned Unit Development.” (R. 32, Am. Compl. { 47-48.)

On August 3, 2006, McDonald’s, G&S, and the Village fulfilled the first condition of
Ordinance 2548 by signing the Planned Unit Development Commercial and Industrial Statement
of Intent and Agreement (the “PUD Statement”). (/d. 449.) The PUD Statement provides, inter
alia, that the Lease “shall not be renewed or extended” by the owner or any successor, and
“{uJpon the expiration of the [Lease] in 2011, or upon the earlier termination of the [Lease] to the
extent legally permitted,” the Sign would promptly be removed. (/d. § 51; R. 1, Ex. 8, PUD
Statement § 3.) CBS alleges that when Red River obtained title to the Property and the
McDonald’s Site in November 2007, Red River did not have actual notice or knowledge of the
Removal Provision contained in Ordinance 2548. (Ia. § 32.) CBS was not notified of the
enactment of Ordinance 2548 or of the signing of the PUD Statement. (R. 32, Am. Compl. {if

46, 49.)


burden because any hypothetical rational basis dooms a plaintiff's equal protection claim. Jd. at

686-87 (citing Heller v. Doe, 509 U.S. 312, 320 (1993); Srail, 588 F.3d at 946-47).

Here, the Court is able to hypothesize several rational bases for the Village’s conditioning
Ordinance 2548 upon the Removal of the Sign while granting the business license without
requiring the removal of Lamar’s Sign, many of which are suggested by allegations in the
complaint establishing that CBS’s Sign is significantly larger than Lamar’s Sign. CBS’s Sign
thus may have caused accidents or traffic problems; it may be the subject of resident complaints;
it may be on a more heavily traveled road so that it poses more of a threat to the Village’s
esthetic preferences. “A perplexing situation arises when a lawsuit challenging a government
action subject only to rational basis review is evaluated under the deferential standard of a Rule
12(b)(6) motion to dismiss. A class-of-one plaintiff must anticipate this dilemma.” Jd. at 686
(internal alterations, citations, and quotation marks omitted) (quoting Flying J, 549 F.3d at 546)
(finding that “allegations in the complaint suggest[edj a rational basis” for the disparate
treatment and thus the compiaint failed to state a class-of-one equal protection claim).

CBS’s claim is essentially selective prosecution: CBS contends that the Village enforced
the 2006 Sign Code against its Sign through the enactment of the Removal Provision but did not
enact a similar ordinance to enforce the 2006 Sign Code against Lamar’s sign. The Seventh
Circuit has held that selective prosecution comes in two forms:

The first is simply failing to prosecute all known lawbreakers, whether because of

ineptitude or (more commonly) because of lack of adequate resources. The

resulting pattern of nonenforcement may be random, or an effort may be made to

get the most bang for the prosecutorial buck by concentrating on the most

newsworthy lawbreakers, but in either case the result is that people who are

equally guilty of crimes or other violations receive unequal treatment, with some

being punished and others getting off scot-free. That form of selective

prosecution, although it involves dramatically unequal legal treatment, has no

standing in equal protection law. The second form of selective prosecution, and
the only one that is actionable under the federal Constitution, is where the

15


CONCLUSION

For the foregoing reasons, the Village’s motion to dismiss (R. 36) is GRANTED as to
CBS’s equal protection and substantive due process claims in Count I] and DENIED as to CBS’s
First Amendment and Declaratory Judgment claims in Counts I and III. The parties are directed
to reevaluate their settlement positions in light of this opinion and to exhaust all efforts to settle

this case. The parties shall appear for a status hearing on May 13, 2014 at 9:45 a.m.

ENTERED:@ a ZZ

Chief Judge Rubén Castillo
United States District Court

Dated: April 25, 2014

17


In September 1991, Will County issued a building permit for the Sign. (R. 32, Am.
Compl. 20; R. 1, Ex. 3, Permit.) On April 21, 1991, Illinois issued a state permit for the Sign.
(R. 32, Am. Compl. 21; R. 1, Ex. 4, Permit.) Although the Lease states that it began in August
1991, CBS alleges that construction of the Sign was completed in October 1992 and the parties
agreed that the initial term of the Lease began on September 1, 1992, and expired on August 31,
2002. (R. 32, Am. Compl. 22.) At that time, the lessee, CBS’s predecessor in interest,
exercised its option to renew the Lease for a second ten-year term, which expired on August 31,
2012. (Id.) On March 28, 2012, Red River and CBS executed an Addendum to the Lease (the
“Addendum”) that extended CBS’s right to possession of the Property for a term of twenty years.
(Id. § 23; R. 1, Ex. 5, Addendum.) The Addendum was backdated to September 1, 2011, and the
term of the Addendum ran through August 31, 2031. (R. 32, Am. Compl. § 23; R. 1, Ex. 5,
Addendum.)

On August 31, 1998, the Village annexed the parcel of land containing the Property and
the McDonald’s Site at the request of the owner of the parcel. (R. 32, Am. Compl. § 38.) On
October 18, 2004, the Village enacted Ordinance 2428 (the “2004 Sign Code”), a comprehensive
regulation of signs in the Village. (Id. § 39; R. 1, Ex. 6, Portions of 2004 Sign Code). The 2004
Sign Code was amended and recodified on August 15, 2006 as Ordinance 2578 (the “2006 Sign
Code”). (R. 32, Am. Compl. { 40.) As relevant here, the 2006 Sign Code states that
“{b]illboards or other similar large outdoor advertising devices” are “expressly prohibited.” (Jd.)
CBS alleges that the Property was zoned such that the Sign was legal when it was constructed,
that it was constructed and is maintained in accordance with applicable building codes, and that

it has never been cited for a code violation. (/d. { 28.)


CBS owns and maintains a billboard that is the subject of this suit (the “Sign”). (Ud. J 6.)

The Sign is a single pylon that is anchored in concrete approximately 20 feet below ground. (id.
4/24.) It has two back-to-back faces, 14 feet high and 48 feet wide, that are visible from Illinois
State Route 59. (/d.) The top of the Sign is approximately 64 feet above the ground. (/d.) The
Sign is located on a parcel of land (the “Property”), which is owned by Red River and leased to
CBS through a written agreement (the “Lease”). (Id. 6; R. 1, Ex. 1, Lease.)' The Property is
adjacent to another parcel of property (the “McDonald’s Site”) that is also owned by Red River.
(See R. 32, Am. Compl. §{ 8-9.) The Property and the McDonald’s Site were previously part of
the same parcel of land in unincorporated Will County. (/d. 78.) In 2006, the then-owner of the
parcel of land, G&S Land Development, LLC (“G&S”), and its tenant, McDonald’s USA, LLC
(“McDonald’s”), caused the Village to approve the subdivision of the property into two lots.
(id.) The Property upon which the Sign is situated is part of Lot 2; the McDonald’s Site is Lot 1.
id.)

Although not an original party to the Lease, CBS came to be the successor lessee of the
Property and owner of the Sign through a series of transactions and mergers. (Id. §§ 29-30.) Red
River is similarly a successor lessor of the Property rather than an original party to the Lease.
(Id. J§ 31-32.) The Lease states that it commenced on August 8, 1991, and continued for

an initial term of ten years from the first day of the first month following erection

of the advertising display(s) (hereinafter called “the effective date”), and shall

continue thereafter, at the option of the Lessee, for a second term of ten years, and

thereafter from year to year, on the same terms, until terminated as of any
subsequent anniversary of the effective date by written notice of termination

given not less than sixty days prior to such anniversary date by either the Lessor

or Lessee.

(R. 1, Ex. 1, Lease § 3.)

' CBS’s amended complaint incorporates Exhibits 1-9 to its original complaint by reference. (R.
32, Am. Compl. $f 6, 10, 20, 21, 23, 27, 39, 49, 55.)

2


taken down and, on information and belief, that the Village has taken no action to remove it. (Id.
| 72(e).) CBS alleges that each of the four events listed above are grounds for removal of the
sign pursuant to the 2006 Sign Code. (Jd.  72(f).) CBS contends that the Village’s failure to
enforce the 2006 Sign Code to require the removal of Lamar’s sign while demanding the
removal of CBS’s Sign constitutes disparate treatment that is not rationally related to a legitimate
governmental interest. (Jd. § 72(g).)

The Village argues that Lamar’s sign is not an appropriate comparator to CBS’s Sign
because Lamar’s sign “has not been alleged to have been the subject of a zoning ordinance in
any way similar to Ordinance 2548.” (R. 43, Def.’s Reply at 3.) “[P]laintiffs carry a high
burden in establishing someone who is similarly-situated in class-of-one cases, and that
‘similarly situated individuals must be very similar indeed.” Billington, 498 F. App’x at 575
(internal citation omitted) (quoting McDonald v. Village of Winnetka, 371 F.3d 992,1002-03 (7th
Cir. 2004)). Here, CBS has failed to allege facts that would satisfy that burden. Lamar
Advertising is not similarly situated to CBS because a business license is not the same as a
request for a zoning variance or a special use. The decision to issue the business license is made
by the Village president based on recommendations from the chief of police, Plainfield
Municipal Code § 4-424(b), while the decision to issue a special use permit is made by the
Village board on recommendations from the plan commission or zoning board of appeals after a
public hearing, Plainfield Municipal Code § 9-27, 9-37. The standards for granting a business
license are dissimilar from the standards for granting a special use permit, and “[w]hen the
special use is determined to have the potential for adverse impacts, the plan commission may

recommend and the village board may impose conditions on the approval to ensure that the

? The Court takes judicial notice of municipal ordinances pursuant to Federal Rule of Evidence
201(b)(2). See Demos v. City of Ind'polis, 302 F.3d 698, 706 (7th Cir. 2002).

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decision to prosecute is made either in retaliation for the exercise of a

constitutional right, such as the right to free speech or to the free exercise of

religion, or because of membership in a vulnerable group.
Esmail v. Macrane, 53 F.3d 176, 178-79 (7th Cir. 1995) (internal citations omitted) (citing Wayte
y. United States, 470 U.S. 598, 607-08 (1985); United States v. Smith, 953 F.2d 1060, 1063 (7th
Cir. 1992)). CBS fails to allege that the distinction made between it and Lamar is retaliatory or
inappropriately motivated in any way. CBS’s equal protection claim is the type of class-of-one
claim the Seventh Circuit described as having “no standing in equal protection law.” Id. While
CBS may not be required to allege an improper motive, it must allege facts that would allow the
Court to infer that there is no rational basis for the disparate treatment. See Kopp, 725 F.3d at
685. CBS's conclusory allegation that “there is no justification for the Village to surreptitiously
and indirectly cause the removal of [the Sign] and allow a similar legal non-conformity to
continue” is not sufficient to overcome the presumption of rationality. The Court thus finds that
CBS has failed to sufficiently allege a class-of-one equal protection claim.
Ill. CBS’s state law claim (Count IE)

In Count ITI, CBS seexs a Declaratory Judgment that the Removal Provision is invalid
under State law. (R. 32, Am. Compl. 4 77-81.) The Village argues that the Court should
decline to exercise suppiemental jurisdiction over CBS's state law claim and should dismiss
Count III. (R. 36, Def.’s Mot. at 4.) Because the Court has found no reason to dismiss CBS’s
First Amendment claim, however, the Court’s exercise of supplemental jurisdiction over CBS’s

State law claim is proper. 28 U.S.C. § 1367(a). The Court declines to dismiss Count III.

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