{ "id": 3621523, "name": "OUTCOM, INC., d/b/a Porlier Outdoor Advertising, Appellee, v. THE ILLINOIS DEPARTMENT OF TRANSPORTATION et al., Appellants", "name_abbreviation": "Outcom, Inc. v. Illinois Department of Transportation", "decision_date": "2009-05-21", "docket_number": "No. 106260", "first_page": "324", "last_page": "344", "citations": [ { "type": "official", "cite": "233 Ill. 2d 324" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "32 Ill. Reg. 17810", "category": "laws:admin_register", "reporter": "Ill. Reg.", "weight": 7, "opinion_index": 0 }, { "cite": "378 Ill. App. 3d 739", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4274453 ], "weight": 4, "pin_cites": [ { "page": "745" }, { "page": "743" }, { "page": "743" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/378/0739-01" ] }, { "cite": "30 Ill. Reg. 15792", "category": "laws:admin_register", "reporter": "Ill. Reg.", "weight": 5, "opinion_index": 0 }, { "cite": "174 Ill. 2d 268", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223625 ], "weight": 5, "year": 1996, "pin_cites": [ { "page": "273" }, { "page": "272" }, { "page": "273" }, { "page": "273" }, { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0268-01" ] }, { "cite": "179 Ill. 2d 488", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801350 ], "year": 1997, "pin_cites": [ { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0488-01" ] }, { "cite": "25 Ill. App. 3d 879", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2703595 ], "year": 1975, "pin_cites": [ { "page": "883" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0879-01" ] }, { "cite": "67 Ill. 2d 529", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5813145 ], "year": 1977, "pin_cites": [ { "page": "541" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0529-01" ] }, { "cite": "128 Ill. 2d 490", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3228351 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "498" }, { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0490-01" ] }, { "cite": "122 Ill. 2d 462", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549613 ], "year": 1988, "pin_cites": [ { "page": "495-96", "parenthetical": "recognizing the balance that must be struck between judicial intervention in agency actions and the exercise of agency discretion and expertise" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0462-01" ] }, { "cite": "72 Ill. App. 3d 413", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5581768 ], "year": 1979, "pin_cites": [ { "page": "416", "parenthetical": "approving common law writ of mandamus to review IDOT decision revoking billboard permit" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0413-01" ] }, { "cite": "226 Ill. 2d 485", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3610828 ], "year": 2007, "pin_cites": [ { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/226/0485-01" ] }, { "cite": "198 Ill. 2d 380", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29956 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "392" }, { "page": "391" }, { "page": "395" }, { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/198/0380-01" ] }, { "cite": "456 U.S. 273", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185889 ], "weight": 3, "year": 1982, "opinion_index": 0, "case_paths": [ "/us/456/0273-01" ] }, { "cite": "181 Ill. 2d 191", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821407 ], "year": 1998, "pin_cites": [ { "page": "205", "parenthetical": "applying clearly erroneous standard to mixed question" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0191-01" ] }, { "cite": "333 U.S. 364", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6157998 ], "weight": 4, "year": 1948, "pin_cites": [ { "page": "395" }, { "page": "542" }, { "page": "395" }, { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/us/333/0364-01" ] }, { "cite": "92 L. Ed. 746", "category": "reporters:federal", "reporter": "L. Ed.", "weight": 2, "year": 1948, "pin_cites": [ { "page": "766" }, { "page": "766" } ], "opinion_index": 0 }, { "cite": "228 Ill. 2d 200", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5706718 ], "year": 2008, "pin_cites": [ { "page": "212-13", "parenthetical": "discussing forfeiture rules applicable to cases on administrative review" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/228/0200-01" ] }, { "cite": "131 Ill. 2d 196", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5570158 ], "year": 1989, "pin_cites": [ { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0196-01" ] }, { "cite": "73 Ill. 2d 243", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5441129 ], "year": 1978, "pin_cites": [ { "page": "247-48" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/73/0243-01" ] }, { "cite": "110 Misc. 2d 534", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 782947 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/misc2d/110/0534-01" ] }, { "cite": "442 N.Y.S.2d 689", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1981, "opinion_index": 0 }, { "cite": "219 Va. 57", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2133400 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/va/219/0057-01" ] }, { "cite": "244 S.E.2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "23 Pa. Commw. 292", "category": "reporters:state", "reporter": "Pa. Commw.", "case_ids": [ 1872337 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/pa-commw/23/0292-01" ] }, { "cite": "351 A.2d 328", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1976, "opinion_index": 0 }, { "cite": "151 F.2d 597", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3676367 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/f2d/151/0597-01" ] }, { "cite": "94 F.2d 249", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1006389 ], "year": 1937, "opinion_index": 0, "case_paths": [ "/f2d/94/0249-01" ] }, { "cite": "148 Ill. 2d 429", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3283006 ], "year": 1992, "pin_cites": [ { "page": "442" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/148/0429-01" ] }, { "cite": "147 Ill. 2d 548", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3277987 ], "year": 1992, "pin_cites": [ { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/147/0548-01" ] }, { "cite": "496 F. Supp. 2d 960", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 5863014 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/f-supp-2d/496/0960-01" ] }, { "cite": "153 Ill. 2d 164", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738292 ], "year": 1992, "pin_cites": [ { "page": "170", "parenthetical": "discussing the interplay between the federal Highway Beautification Act of 1965 and the present Act, and the payment of federal highway funds" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0164-01" ] } ], "analysis": { "cardinality": 1266, "char_count": 35415, "ocr_confidence": 0.826, "pagerank": { "raw": 1.2112303089747452e-07, "percentile": 0.5960444025887224 }, "sha256": "601af0e89eb5d7dafcd6dc2cf3e5d5c82ae5bfa3359f16475f0f477a4f1253fd", "simhash": "1:60056e92a5cb2fe7", "word_count": 5592 }, "last_updated": "2023-07-14T16:56:19.732373+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "OUTCOM, INC., d/b/a Porlier Outdoor Advertising, Appellee, v. THE ILLINOIS DEPARTMENT OF TRANSPORTATION et al., Appellants." ], "opinions": [ { "text": "CHIEF JUSTICE FITZGERALD\ndelivered the judgment of the court, with opinion.\nJustices Freeman, Thomas, Kilbride, Garman, Karmeier, and Burke concurred in the judgment and opinion.\nOPINION\nAt issue in this appeal is whether defendant, the Illinois Department of Transportation (IDOT), must issue a permit to plaintiff, Outcom, Inc., a Missouri corporation doing business as Porlier Outdoor Advertising, for the erection of two billboards in the Village of Caseyville, Illinois. IDOT denied plaintiff\u2019s permit applications, concluding that plaintiff had failed to demonstrate that the proposed billboard site was continuously used for commercial or industrial activities since September 21, 1959, as required by the Highway Advertising Control Act of 1971 (225 ILCS 440/1 et seq. (West 2006)) and IDOT regulations (92 Ill. Adm. Code \u00a7522.20 et seq., amended at 32 Ill. Reg. 17810, eff. October 30, 2008). The circuit court of St. Clair County disagreed, and ordered IDOT to issue the permits. The appellate court affirmed that ruling. 378 Ill. App. 3d 739.\nFor the reasons that follow, we reverse the judgments of the appellate court and circuit court, and confirm IDOT\u2019s decision denying the permits.\nBACKGROUND\nThe Highway Advertising Control Act of 1971 (the Act) regulates \u201cthe erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to Interstate highways and primary highways.\u201d 225 ILCS 440/1 (West 2006). Implementation and enforcement of the Act resides in IDOT. 225 ILCS 440/14.01 (West 2006).\nThe Act permits outdoor advertising in \u201cbusiness areas.\u201d 225 ILCS 440/1, 4.04 (West 2006). Generally, with respect to signs along interstate highways, an area is a \u201cbusiness area\u201d only if the land was used or zoned for commercial or industrial activities from September 21, 1959. 225 ILCS 440/3.12 (West 2006); 92 Ill. Adm. Code \u00a7522.20, amended at 32 Ill. Reg. 17810, eff. October 30, 2008.\nWith limited exception not relevant here, no sign may be erected without first obtaining a permit from IDOT. 225 ILCS 440/8 (West 2006); 92 Ill. Adm. Code \u00a7522.30, amended at 30 Ill. Reg. 15792, eff. October 1, 2006. Where an application for a permit is incomplete, contains incorrect information, or does not comply with the Act or IDOT\u2019s rules and regulations, IDOT must notify the applicant in writing of its intent to deny the permit application and state the reasons for that action. 92 Ill. Adm. Code \u00a7522.80(a), amended at 30 Ill. Reg. 15792, eff. October 1, 2006. The applicant may challenge the intent to deny, but IDOT\u2019s decision on a challenged application is final. 92 Ill. Adm. Code \u00a7522.80(a), amended at 30 Ill. Reg. 15792, eff. October 1, 2006.\nIn accordance with IDOT\u2019s permitting procedures, on July 26, 2004, plaintiff submitted two applications for outdoor advertising permits to erect two signs in Casey-ville along Interstate 64. According to the applications, the signs would be located eight-tenths and nine-tenths of a mile east of Highway 111, approximately 510 feet apart. The proposed signs consisted of painted panels, each panel 48 feet wide and 14 feet high, and rising 60 feet into the air on a free-standing structure. Each sign would be illuminated with eight 400-watt lights.\nAs shown in photographs attached to plaintiff\u2019s applications, a radio tower for WEW 77 Radio is located on the proposed billboard site which, according to other documents plaintiff provided to IDOT, was placed there sometime between December 14, 1955, and January 17, 1956. Plaintiff\u2019s photographs also reveal the presence of a steel trailer, which houses the station\u2019s transmitter equipment or ground system. The transmitter is operated remotely from the station\u2019s St. Louis, Missouri, studio. Painted on the side of the trailer are the station\u2019s call letters. Although the ground system has been at the site since the tower was placed there, the documents attached to plaintiff\u2019s applications do not indicate when the trailer, as depicted in the photographs, was first placed on the site.\nThe applications indicate that the billboard site is located within the Village of Caseyville and that the site is presently zoned industrial. The site, however, was not part of the village on September 21, 1959. A document from the county assessor\u2019s office, which plaintiff attached to its applications, reveals that the proposed billboard site is part of a 20-acre farm.\nOn August 10, 2004, IDOT notified plaintiff in writing of its intent to deny the permit applications. IDOT cited plaintiff\u2019s \u201c[f]ailure to provide proof that the temporary trailer, serving as the transmitter and ground system for WEW 77 Radio, does meet the definition of a commercial/industrial site,\u201d within the meaning of IDOT\u2019s regulations. IDOT noted:\n\u201cSection 522.20 of the Illinois Administrative Code defines \u2018commercial or industrial areas\u2019 as \u2018those whose land use is devoted to commerce, industry, trade, manufacturing, highway service, highway business, warehouses, offices, or similar uses *** and does not include the following: transient or temporary activities not involving permanent buildings or structures ***.\u2019 \u201d\nIDOT requested that plaintiff \u201cprovide proof that the proposed property meets the definition of commercial or industrial activities and that the trailer, as shown in [plaintiff\u2019s] submitted photos, is more than the housing for the transmitter equipment.\u201d\nPlaintiff challenged IDOT\u2019s intent-to-deny notice. In a letter to IDOT dated September 14, 2004, plaintiff\u2019s president, Brent M. Porlier, stated:\n\u201cFrom your August 10, 2004 letter, I gather the only issue at hand is whether the land use has been and is now considered business, commercial or industrial in nature.\nSection 522.20 *** list[s] land uses that are not considered business, commercial or industrial and your August 10, 2004 letter recites one of the mentioned exclusions: \u2018transient or temporary activities not including permanent buildings or structures.\u2019 I understand a denial of our two applications would be based on this exclusion.\nIf you look closely at the building on our property, one can only come to the conclusion that it is a permanent structure. The physical structure is made of steel, is permanently secured/moored to the ground and is serviced with utility (s). The building is also identified commercially as \u2018WEW 77 Radio\u2019. This building is regularly visited by maintenance personnel. While their visits are not as frequent as say a retail business, nothing in Section 522.20 requires personnel to be at the site for a specified number of hours each day nor a specified number of days each month. Moreover, the building and tower are vital to the radio station operations. The building and tower are primary, not incidental to WEW\u2019s ability to conduct business, just as their in-town operation is primary to station operations. In this sense, both parts are inextricably linked.\u201d (Emphases in original.)\nOn October 5, 2004, IDOT denied plaintiffs permit applications. IDOT noted that the site had only recently been annexed into Caseyville, and that prior to annexation, the land use of the site was agricultural. \u201cThe actual presence of the tower,\u201d according to IDOT, \u201cdoes not satisfy the requirements of section 522.20 of the Illinois Administrative Code *** that requires that *** the land on September 21, 1959 was and has continuously been used as business, commercial or industrial.\u201d (Emphasis in original.) IDOT noted that like public utilities, radio towers are found in all areas \u2014 agricultural, industrial, commercial, and residential \u2014 and do not necessarily define the site on which they are built. IDOT also referenced the \u201cLand Use Manual of the American Planning Association,\u201d stating that the association categorizes radio towers separately from residential, commercial or industrial categories. As to the presence of the steel trailer, IDOT determined that its permanency did not change IDOT\u2019s decision, \u201cgiven the fact that the site\u2019s land use on September 21, 1959 was agricultural and no proof has been presented that the site has been continuously used as an industrial site either through local zoning or through historical documentation.\u201d\nThereafter, on November 4, 2004, plaintiff filed a complaint against IDOT in the circuit court of St. Clair County. In count I, plaintiff sought a declaration that (i) the radio tower and attendant structure are not public utilities, but are a private business, commercial, or industrial activity; (ii) the use of the site since prior to September 21, 1959, has been business, commercial, or industrial; and (iii) IDOT\u2019s denial of plaintiff\u2019s permit applications was improper. In count II, plaintiff sought a writ of mandamus commanding IDOT to issue the requested permits. Plaintiff alleged that it complied with all of the requirements of the Act and administrative regulations, and that IDOT\u2019s denial of the application \u201cfor the reason that the Radio Facilities are a public utility\u201d was improper and without a basis in Illinois law. According to plaintiff, IDOT abused its discretion in denying the permits.\nThe parties agreed that the pertinent facts were undisputed, and proceeded with cross-motions for summary judgment. The circuit court granted plaintiffs motion and denied IDOT\u2019s motion. The court declared that radio towers and attendant structures, in general, and the radio tower and trailer at issue here, in particular, are not public utilities, but are a private business, commercial or industrial activity, and that the site\u2019s use since prior to September 21, 1959, has been business, commercial, or industrial. The circuit court concluded that plaintiff had complied with the application requirements for its outdoor advertising signs and had a clear right to the relief requested. The circuit court ordered IDOT to grant plaintiffs permit applications.\nIDOT appealed the circuit court\u2019s ruling. The appellate court affirmed, holding, \u201cbased on the plain language of the Act and regulations, that the operation of a commercial radio tower and transmitter building is a business, commercial, or industrial use of property within the meaning of the Act.\u201d 378 Ill. App. 3d at 745.\nWe allowed IDOT\u2019s petition for leave to appeal. 210 Ill. 2d R. 315.\nANALYSIS\nI. Standard of Review\nIn order to determine the appropriate standard of review, we find it necessary to clarify the procedural posture of this case and the reviewability of IDOT\u2019s decision.\nWhether an agency action is reviewable is an issue of statutory construction. Hanrahan v. Williams, 174 Ill. 2d 268, 273 (1996). Courts must consider whether the statute which confers power on the agency to act indicates that the legislature intended the agency\u2019s decisions to be reviewable. Frequently, the legislature\u2019s intent is clear because the agency\u2019s enabling statute expressly provides for review under our Administrative Review Law (735 ILCS 5/3 \u2014 101 et seq. (West 2006)). The Administrative Review Law eliminates the use of mandamus, certiorari, injunction and other equitable, statutory and common law actions as a means of reviewing agency decisions, thus providing a single uniform method of review. 735 ILCS 5/3 \u2014 102 (West 2006); Marsh v. Illinois Racing Board, 179 Ill. 2d 488, 493 (1997); Quinlan & Tyson, Inc. v. City of Evanston, 25 Ill. App. 3d 879, 883 (1975).\nIn some instances, however, the enabling statute does not adopt the Administrative Review Law and provides no other method for reviewing the agency\u2019s decisions. In such instances, \u201cthe writ of common law certiorari survives as an available method of review.\u201d Smith v. Department of Public Aid, 67 Ill. 2d 529, 541 (1977). Accord Dubin v. Personnel Board, 128 Ill. 2d 490, 498 (1989); Hanrahan, 174 Ill. 2d at 272. Underlying the use of certiorari is the presumption that most agency actions are reviewable. Hanrahan, 174 Ill. 2d at 273. Where, however, \u201cthere is a statutory bar to review or if statutory language commits the agency decision to unreviewable agency discretion,\u201d no presumption of reviewability arises. Hanrahan, 174 Ill. 2d at 273.\nThe statute at issue here, the Highway Advertising Control Act, did not adopt the Administrative Review Law and provides no other method to review a decision by IDOT denying a permit application. Whether the presumption of reviewability arises is dependent on the language of the Act. As to permit applications, section 8 of the Act states:\n\u201cNo sign *** may be erected after the effective date of this Act without first obtaining a permit from the Department. The application for permit shall be on a form provided by the Department and shall contain such information as the Department may reasonably require. Upon receipt of an application containing all required information and appropriately executed and upon payment of the fee required under this Section, the Department then issues a permit to the applicant for the erection of the sign, provided such sign will not violate any provision of this Act.\u201d 225 ILCS 440/8 (West 2006).\nThus, the statutory language is neutral as to whether IDOT\u2019s denial of a permit application is reviewable.\nThe statute, however, also vests IDOT with the authority to \u201cestablish rules and regulations regarding implementation and enforcement\u201d of the Act, provided such regulations are not inconsistent with the Act. 225 ILCS 440/14.01 (West 2006). In accordance with this legislative grant of authority, and consistent with section 8, IDOT adopted various regulations governing the permitting process. See 92 Ill. Adm. Code \u00a7\u00a7522.20 through 522.90. We direct our attention to section 522.80, which governs the denial of a permit application.\nAs indicated earlier in this opinion, section 522.80 provides that if a permit application is incomplete, contains incorrect information or is not in compliance with the Act or IDOT\u2019s regulations, IDOT\u2019s district office where the application was filed must notify the applicant in writing of its intent to deny the permit application and the reasons for that action. The applicant has 30 days to correct deficiencies in the application or challenge the intent to deny. The district will review the challenge and shall either approve or deny the application. Significantly, section 522.80(a) states, \u201cNo appeal may be taken from the District\u2019s decision on the challenged application.\u201d 92 Ill. Adm. Code \u00a7522.80(a), amended at 30 Ill. Reg. 15792, eff. October 1, 2006.\nThe \u201cno appeal\u201d rule might be read as precluding judicial review of a permit application denial. Such a reading, however, assumes that an agency may, through its rulemaking authority, insulate its decisions from judicial review even where the enabling statute does not, itself, preclude review. The validity of such an assumption is not at all apparent when we consider the purpose of judicial review: to remedy problems arising from an agency\u2019s exercise of its frequently considerable discretion. See Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 495-96 (1988) (recognizing the balance that must be struck between judicial intervention in agency actions and the exercise of agency discretion and expertise); 3 R. Pierce, Administrative Law Treatise \u00a7\u00a717.1, 17.2 (4th ed. 2002) (discussing the problems of agency discretion and the role of judicial review as a potential solution).\nWe need not decide, in the context of this case, whether an agency may legitimately adopt a rule barring judicial review of its own decisions because we conclude that the \u201cno appeal\u201d language at issue here only precludes further appeal or review before the agency. This conclusion is borne out by IDOT\u2019s conduct during the course of this litigation.\nIn the circuit court, IDOT never argued that its permit denial was unreviewable. In the appellate court, IDOT only challenged the remedy chosen by plaintiff. As the appellate court opinion states:\n\u201cThe Department initially argues that a declaratory judgment action is not proper to review the Department\u2019s administrative decision denying the permit applications. *** [T]he Department argues that a common law writ of certiorari is the appropriate method for obtaining circuit court review of administrative actions when the act conferring power on the agency does not expressly adopt the Administrative Review Law [citation] and provides for no other form of review.\u201d 378 Ill. App. 3d at 743.\nThus, IDOT not only implicitly recognized that its permit denial was reviewable, but explicitly stated the appropriate vehicle for review: a common law writ of certiorari.\nConsistent with its argument in the appellate court, IDOT states in its brief before this court that plaintiff \u201cseeks judicial review of a final administrative decision, albeit under the guise of a complaint for declaratory judgment and mandamus relief.\u201d Noting that the Act did not adopt the Administrative Review Law, IDOT states that \u201cthe same standards apply to review of an administrative decision whether the action is brought pursuant to the Administrative Review Law or some other mechanism.\u201d IDOT also states in its briefs that it is the agency authorized to make the permit determinations in the \u201cfirst instance,\u201d and that the General Assembly has vested IDOT with \u201cinitial jurisdiction\u201d to determine whether to grant a permit. The clear implication is that IDOT envisions that its permit denial is a reviewable decision.\nWe recognize that IDOT does not make explicit reference in its briefs to the \u201cno appeal\u201d language in section 522.80(a). IDOT does, however, cite to section 522.80(a) when it describes the process governing permit denials. We presume that IDOT, which adopted the \u201cno appeal\u201d language, acted with knowledge of this provision. Accordingly, we conclude that IDOT\u2019s denial of plaintiffs permit application is a decision subject to judicial review and that, as set forth in our case law, the appropriate vehicle for review is the common law writ of certiorari.\nPlaintiff did not seek a writ of certiorari and instead filed a complaint for declaratory judgment and a writ of mandamus. See Kohl Outdoor Advertising, Inc. v. Department of Transportation, 72 Ill. App. 3d 413, 416 (1979) (approving common law writ of mandamus to review IDOT decision revoking billboard permit). As already noted, in the circuit court, IDOT did not challenge the method plaintiff chose to review IDOT\u2019s decision. When IDOT raised this issue on appeal, the appellate court ruled that IDOT had forfeited any such challenge. 378 Ill. App. 3d at 743.\nIrrespective of whether IDOT forfeited review of this issue, our case law is clear that the circuit courts \u201cdo not possess greater authority to review actions by agencies whose final decisions are reviewable through common law methods than the courts have when statutory procedures apply.\u201d Dubin, 128 Ill. 2d at 498. Moreover, the standards of review in either instance are essentially the same. Hanrahan, 174 Ill. 2d at 272. Consequently, although this case comes to us following the affirmance of summary judgment on plaintiff\u2019s complaint for declaratory relief and a writ of mandamus, we will treat this appeal as we would any other appeal that comes to us on administrative review. \u201cIn administrative cases, we review the decision of the administrative agency, not the determination of the circuit court.\u201d Wade v. City of North Chicago Police Pension Board, 226 Ill. 2d 485, 504 (2007).\nThe parties are in agreement that IDOT\u2019s decision should be reviewed under the clearly erroneous standard applicable to agency determinations that involve mixed questions of law and fact. See AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 392 (2001). \u201c[A] mixed question is one \u2018in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or *** whether the rule of law as applied to the established facts is or is not violated.\u2019 \u201d AFM Messenger, 198 Ill. 2d at 391, quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19, 72 L. Ed. 2d 66, 80 n.19, 102 S. Ct. 1781, 1790 n.19 (1982). See also City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998) (applying clearly erroneous standard to mixed question). When an agency decision presents a mixed question of law and fact, its decision will be deemed clearly erroneous \u201conly where the reviewing court, on the entire record, is \u2018left with the definite and firm conviction that a mistake has been committed.\u2019 \u201d AFM Messenger, 198 Ill. 2d at 395, quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948).\nIn reaching its decision on plaintiffs permit applications, IDOT considered whether the facts provided by plaintiff relative to the proposed billboard site met the requirements for a permit, as established by the Act and administrative regulations. Specifically, IDOT considered whether the presence of the radio tower and trailer satisfied the legal requirement that the site was used for commercial or industrial activities. This issue falls squarely within the definition of a mixed question. Accordingly, we agree with the parties that the clearly erroneous standard applies and will review IDOT\u2019s decision accordingly.\nII. Forfeiture\nBefore reaching the merits of this case, we consider plaintiffs claim that IDOT forfeited review of certain issues by failing to raise these issues at the administrative level. Specifically, plaintiff maintains that IDOT notified plaintiff that it intended to deny its application because the structure attendant to the radio tower was not a permanent structure, but later denied the permit for entirely different reasons: because radio broadcasting is a public utility that does not necessarily define the site on which a tower is located, and that proof was thus lacking that the site had continuously been used as an industrial site. Plaintiff argues that IDOT\u2019s change in position is inconsistent with its own administrative regulations and this court\u2019s rules of forfeiture. See 92 Ill. Adm. Code \u00a7522.80, amended at 30 Ill. Reg. 15792, eff. October 1, 2006 (setting forth procedures for denial of permit application); Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 212-13 (2008) (discussing forfeiture rules applicable to cases on administrative review).\nWe disagree with plaintiffs reading of the administrative record. As set forth in some detail above, IDOT\u2019s notice of intent to deny conveys a less narrow justification for its anticipated denial than plaintiff contends. IDOT\u2019s notice plainly requested from plaintiff \u201cproof that the proposed property meets the definition of commercial or industrial activities and that the trailer *** is more than the housing for the transmitter equipment.\u201d (Emphasis added.) IDOT\u2019s notice of intent to deny also made specific reference to section 522.20 of the Illinois Administrative Code, which defines both \u201cbusiness area\u201d and \u201ccommercial or industrial activities.\u201d IDOT\u2019s subsequent denial, based on plaintiff\u2019s failure to establish that the site \u201cwas and has continuously been used as business, commercial or industrial\u201d in accordance with section 522.20, is not inconsistent with its earlier notice. Although IDOT\u2019s denial offered additional support for its decision, we cannot conclude that IDOT\u2019s decisionmaking ran afoul of its own regulations or that forfeiture rules apply here.\nIII. Permit Applications\nUnder the Act, outdoor advertising signs adjacent to highways are permitted only in \u201cbusiness areas.\u201d 225 ILCS 440/1, 4.04 (West 2006). A \u201cbusiness area\u201d means:\n\u201c[A]ny part of an area adjacent to and within 660 feet of the right-of-way which is at any time zoned for business, commercial or industrial activities under the authority of any law of this State; or not so zoned, but which constitutes an unzoned commercial or industrial area as defined in Section 3.11. However, as to signs along Interstate highways, the term \u2018business area\u2019 includes only areas which are within incorporated limits of any city, village, or incorporated town, as such limits existed on September 21, 1959, and which are zoned for industrial or commercial use, or both, or to portions of Interstate highways which traverse other areas where the land use, as of September 21, 1959, was established by State law as industrial or commercial, or both.\u201d (Emphasis added.) 225 ILCS 440/3.12 (West 2006).\nNo dispute exists that plaintiff\u2019s proposed billboard site was unincorporated and unzoned on September 21, 1959. Thus, the site is a \u201cbusiness area\u201d only if \u201cthe land use, as of September 21, 1959, was established by State law as industrial or commercial, or both.\u201d 225 ILCS 440/3.12 (West 2006). IDOT\u2019s regulations clarify the meaning of \u201cbusiness area\u201d for previously unzoned parcels, providing as follows:\n\u201cAreas which were unzoned on September 21, 1959 may qualify as business areas along Interstate highways if the applicant can show, based on contemporaneous historical records of State actions (e.g., State sales tax records, required State license fees, etc.) that the land on September 21, 1959 was and has continuously been used as business, commercial or industrial.\u201d 92 Ill. Adm. Code \u00a7522.20, amended at 32 Ill. Reg. 17810, eff. October 30, 2008.\nWe note that IDOT\u2019s regulations refer to \u201cbusiness, commercial or industrial,\u201d whereas the Act refers simply to \u201cindustrial or commercial.\u201d We do not view the addition of the word \u201cbusiness\u201d as an intent by IDOT to expand the statutory definition of the term \u201cbusiness area.\u201d As IDOT recognizes, \u201c \u2018[a]dministrative rules can neither limit nor extend the scope of a statute.\u2019 \u201d Van\u2019s Material Co. v. Department of Revenue, 131 Ill. 2d 196, 203 (1989), quoting Du-Mont Ventilating Co. v. Department of Revenue, 73 Ill. 2d 243, 247-48 (1978). Indeed, the Act expressly provides that rules and regulations IDOT establishes may not be \u201cinconsistent\u201d with the terms of the Act. 225 ILCS 440/14.01 (West 2006). We further note that the word \u201cbusiness\u201d is commonly used to denote \u201ca commercial or industrial enterprise.\u201d Webster\u2019s Third New International Dictionary 302 (1993). Thus, we read the word \u201cbusiness\u201d as synonymous with \u201ccommercial or industrial,\u201d and not as an enlargement of the Act\u2019s definition of \u201cbusiness area.\u201d\nThe Act defines \u201c[c]ommercial or industrial activities\u201d as \u201cthose activities located within 660 feet of the nearest edge of the right-of-way generally recognized as commercial or industrial by zoning authorities in this State.\u201d 225 ILCS 440/3.10 (West 2006). The statutory definition also lists several activities that are not commercial or industrial:\n\u201c(a) Agricultural, forestry, ranging, grazing and farming activities, including wayside fresh produce stands and grain storage bins;\n(b) Railroad tracks and minor sidings;\n(c) Transient or temporary activities not involving permanent building or structures;\n(d) Outdoor advertising structures;\n(e) Activities not visible from a main-traveled way;\n(f) Activities conducted in a building principally used as a residence.\u201d 225 ILCS 440/3.10 (West 2006).\nIDOT\u2019s definition of \u201cCommercial or industrial activities\u201d substantially mirrors the language of section 3.10 of the Act, but also includes examples of commercial or industrial activity: \u201cland use devoted to commerce, industry, trade, manufacturing, highway service, highway business, warehouses, offices or similar uses ***.\u201d 92 Ill. Adm. Code \u00a7522.20, amended at 32 Ill. Reg. 17810, eff. October 30, 2008.\nUnder the statutory and regulatory scheme, plaintiff was required to establish that the proposed billboard site on September 21, 1959, was and has continuously been used as commercial or industrial. Plaintiff could satisfy this requirement by estabhshing that the activity on the site is \u201cgenerally recognized as commercial or industrial by zoning authorities in this State\u201d (225 ILCS 440/3.10 (West 2006)), or by pointing to \u201ccontemporaneous historical records of State actions (e.g., State sales tax records, required State license fees, etc.)\u201d establishing the same (92 Ill. Adm. Code \u00a7522.20, amended at 32 Ill. Reg. 17810, eff. October 30, 2008). According to IDOT\u2019s denial letter, plaintiff failed to do either, and thus IDOT refused to issue the requested permits. While IDOT did not dispute that the radio tower has occupied the site since before September 21, 1959, IDOT determined that the mere presence of the tower did not establish that the site was used for commercial or industrial activities. IDOT compared the radio tower and attendant trailer to public utilities which do not necessarily define the site on which they are located. IDOT further noted that, prior to annexation, the land use was agricultural, notwithstanding the presence of the radio tower. Based on this record, IDOT maintains that its decision denying the permits is not clearly erroneous and urges us to reverse the courts below.\nPlaintiff counters that IDOT\u2019s decision is based on the faulty conclusion that radio broadcasting is a public utility. Relying on the Illinois Pubic Utilities Act (220 ILCS 5/1 \u2014 101 et seq. (West 2006)), and numerous cases from various jurisdictions, plaintiff argues that IDOT\u2019s conclusion is simply wrong and its denial of the permits is clearly erroneous. See Mammina v. Zoning Board of Appeals, 110 Misc. 2d 534, 442 N.Y.S.2d 689 (1981); WANV, Inc. v. Houff, 219 Va. 57, 244 S.E.2d 760 (1978); Pennsylvania Public Utility Comm\u2019n v. WVCH Communications, Inc., 23 Pa. Commw. 292, 351 A.2d 328 (1976); McIntire v. Wm. Penn Broadcasting Co., 151 F.2d 597 (3d Cir. 1945); Pulitzer Pub. Co. v. Federal Communications Comm\u2019n, 94 F.2d 249 (D.C. Cir. 1937). Plaintiff argues, in the alternative, that even if radio broadcasting is a public utility, it is nonetheless a business, commercial or industrial activity, and that nothing in the Act indicates a legislative intent to exclude radio broadcasting from qualifying as such an activity for purposes of establishing a \u201cbusiness area.\u201d\nWe are not persuaded by plaintiffs arguments. IDOT did not declare that radio broadcasting is a public utility. Rather, IDOT concluded that, for purposes of the Act, radio towers are similar to public utilities. That is, radio towers, like public utilities, are necessities and appear in all areas \u2014 agricultural, residential, commercial and industrial \u2014 and do not necessarily define the use of the land on which they are located. The authorities cited by plaintiff do not somehow prohibit IDOT from making this comparison and according similar treatment to radio towers as public utilities.\nPlaintiff\u2019s argument assumes that if radio broadcasting is a commercial activity, the site at issue here automatically qualifies as a \u201cbusiness area\u201d under the Act. We disagree. The issue is not whether radio broadcasting in general is considered a commercial or industrial activity; the issue is whether the mere presence of the radio tower and trailer is an industrial or commercial use of the land, as recognized by local zoning authorities or state action, such that a business area was created. See 225 ILCS 440/3.10 (West 2006); 92 Ill. Adm. Code \u00a7522.20, amended at 32 Ill. Reg. 17810, eff. October 30, 2008. At most, plaintiff established that the site has a nexus to commerce or industry. We agree with IDOT that something more than a nexus is needed to demonstrate that the site is used for commercial or industrial activities and thus constitutes a business area.\nThis conclusion is consistent with the purpose of the Act: the regulation of highway advertising \u201cin order to protect the public investment in such highways, to promote the recreational value of public travel, [and] to preserve natural beauty.\u201d 225 ILCS 440/1 (West 2006). While the Act also recognizes the business and economic value of outdoor advertising, the Act is clearly aimed at limiting highway advertising. Indeed, the general rule is that \u201c[s]igns shall not be erected or maintained\u201d along highways, unless they fit within one of the Act\u2019s express exceptions. (Emphasis added.) 225 ILCS 440/4 (West 2006). Even when an exception applies, the Act regulates the size of the signs, the lighting, the spacing, the placement of the signs at the site, and the number of signs at a given site. 225 ILCS 440/6.01 through 6.03 (West 2006). Thus, we agree with IDOT that \u201cthe Act embodies an aesthetic choice that favors uninterrupted vistas over billboards.\u201d Plaintiff\u2019s expansive reading of the \u201cbusiness area\u201d exception at issue here would defeat the Act\u2019s purpose.\nWe recognize, as plaintiff argues, that the list of activities set forth in section 3.10 of the Act, that do not qualify as commercial or industrial, does not include radio towers. 225 ILCS 440/3.10 (West 2006). See also 92 Ill. Adm. Code \u00a7522.20, amended at 32 Ill. Reg. 17810, eff. October 30, 2008 (setting forth the same exclusions). Generally, where a statute lists the things to which it refers or includes, an inference arises that omissions should be understood as excluded. Burke v. 12 Rothschild\u2019s Liquor Mart, Inc., 148 Ill. 2d 429, 442 (1992). This inference, however, is not a rule of law and does not trump legislative intent. Sulser v. Country Mutual Insurance Co., 147 Ill. 2d 548, 555 (1992). Nothing in section 3.10 indicates that the list of noncommercial or nonindustrial activities is intended to be exhaustive. Moreover, the inclusion of radio towers, like the one at issue in this case, is entirely consistent with the overriding purpose of the Act: to limit highway advertising.\nBased on our review of the administrative record, the statute, and regulations, we cannot say that IDOT\u2019s decision denying plaintiffs permit applications was clearly erroneous. That is, we are not \u201c \u2018left with the definite and firm conviction that a mistake has been committed.\u2019 \u201d AFM Messenger, 198 Ill. 2d at 395, quoting United States Gypsum Co., 333 U.S. at 395, 92 L. Ed. at 766, 68 S. Ct. at 542. We therefore reverse the judgments of the appellate court and the circuit court and confirm IDOT\u2019s decision.\nJudgments reversed;\nDepartment decision confirmed.\nThe named defendants include IDOT, its secretary, and two of its engineers. For ease of discussion, we will refer simply to IDOT.\nThe September 21, 1959, date that appears in the Act and administrative regulations relates to the Federal-Aid Highway Act of 1959, which authorized certain bonus payments from the federal government, for highway construction costs, to states that agreed to prohibit billboards within 660 feet of highways in areas not zoned either industrial or commercial. Covenant Media of Illinois v. City of Des Plaines, 496 F. Supp. 2d 960, 962 n.2 (2007). See also Scadron v. City of Des Plaines, 153 Ill. 2d 164, 170 (1992) (discussing the interplay between the federal Highway Beautification Act of 1965 and the present Act, and the payment of federal highway funds).", "type": "majority", "author": "CHIEF JUSTICE FITZGERALD" } ], "attorneys": [ "Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro, Solicitor General, and Janon E. Fabiano and Brett E. Legner, Assistant Attorneys General, of Chicago, of counsel), for appellants.", "Jill R. Rembusch, of Summers Compton Wells PC, of St. Louis, Missouri, for appellee." ], "corrections": "", "head_matter": "(No. 106260.\nOUTCOM, INC., d/b/a Porlier Outdoor Advertising, Appellee, v. THE ILLINOIS DEPARTMENT OF TRANSPORTATION et al., Appellants.\nOpinion filed May 21, 2009.\nLisa Madigan, Attorney General, of Springfield (Michael A. Scodro, Solicitor General, and Janon E. Fabiano and Brett E. Legner, Assistant Attorneys General, of Chicago, of counsel), for appellants.\nJill R. Rembusch, of Summers Compton Wells PC, of St. Louis, Missouri, for appellee." }, "file_name": "0324-01", "first_page_order": 336, "last_page_order": 356 }