Suffolk Outdoor Advertising Co., Inc. v. Hulse

No. 545 (N.Y. December 21, 1977)

The New York Court of Appeals affirms the validity of a municipal zoning ordinance which bans the erection of non-accessory billboards and requires that all existing non-accessory billboards be removed within three years. The authority of the state or a subdivision thereof to enact such ordinances will be upheld where the ordinance is rationally related to the furtherance of an objective which lies within the permissible bounds of the police power. In New York, aesthetic considerations have recently but unequivocally been recognized as valid goals of the police power. Whether the statute bears a reasonable relationship to this purpose depends on the opportunity for and the duration of the extensions granted; since plaintiff failed to seek such an extension the statute will not be voided. As for plaintiff's contention that it has been deprived of First Amendment rights, the billboards subject to the ordinance are a form of commercial speech, and as such may constitutionally be regulated as to place and manner, if not content. In dissent, Judge Fuchsberg urges the elimination of the distinction between commercial and non-commercial speech, and argues that in any event the ordinance exceeds the permissible limits on the regulation of commercial speech.

Counsel for Appellants
Manley Fleishmann, Adelbert Fleischmann, Eugene A. DeNicola & Henry W. Killeen III
Jaeckle, Fleischmann & Mugel
700 Liberty Bank Bldg., Buffalo NY 14202
(716) 856-0600

Carl W. Peterson, Jr.
Hancock, Estabrook, Ryan, Shove & Hust
14th Fl., One Mony Plaza, 100 Madison St., Syracuse NY 13202
(315) 471-3151

Counsel for Appellees
Richard E. DePetris, Emil F. DePetris
Scheinberg, Wolf, DePetris & Pruzansky
220 Roanoke Ave., P.O. Box 599, Riverhead NY 11902
(516) 727-5100

[8 ELR 20186]

Jasen, J.:

The principal question posed on these cross-appeals is whether a local zoning ordinance requiring the removal of all off-premises or non-accessory billboards throughout the town is an unconstitutional exercise of the police power.

On May 2, 1972, the Town of Southampton adopted Building Ordinance No. 26, which prohibited the erection of all non-accessory billboards (§ 3-50-60.70) in all districts throughout the town. The ordinance further provided for the removal of all nonconforming billboards on or before June 1, 1975 (§ 3-110-70.03). However, owners of nonconforming billboards were given the opportunity to apply for an extension of the amortization period prescribed by the ordinance (§ 3-110-70.04). Exception was also made for the Town of Southampton to establish public information centers where business signs could be located (§ 3-50-60.07).

Plaintiffs, owners of nonconforming billboards located in the Town of Southampton, seek a declaration that the ordinance in question is unconstitutional in that it is not reasonably related to public safety and welfare. We hold that the ordinance is reasonably related to public safety and welfare, and, as such, is a valid exercise of the police power.

Initially, we reject plaintiffs' contention that the prohibition of non-accessory billboards constitutes a violation of the right to free speech guaranteed by the First Amendment. While the Supreme Court has held that commercial speech falls within the protection of the First and Fourteenth Amendments, the Court recognized that a state may regulate the time, place or manner of commercial speech — as opposed to its content — to effectuate a significant governmental interest. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770-71. We believe that the regulation of aesthetics constitutes such an interest. Since the challenged ordinance makes no attempt to regulate the content of the commercial speech appearing on billboards, but rather regulates only the place and manner in which billboards may be maintained, we conclude that the ordinance does not infringe the right to free speech guaranteed by the First Amendment.

The authority of the state and its political subdivisions to regulate outdoor advertising pursuant to the police power is well settled. See, e.g., People v. Goodman, 31 N.Y.2d 262; New York State Thruway Auth. v. Ashley Motor Ct., 10 N.Y.2d 151; People v. National White Plains Corp., 299 N.Y. 694; 1 ANDERSON, NEW YORK ZONING LAW AND PRACTICE [2d ed] § 11.54; 2 N.Y. JUR. Advertising and Advertisements § 7; 82 AM. JUR. 2D, Zoning and Planning § 125; Annot., Billboards - Municipal Regulation, 58 A.L.R. 2d 1314. Certainly, where the primary purpose for which outdoor advertising is regulated is the public health or safety, there is no doubt that the objective of the regulation lies within the permissible bounds of the police power. See, e.g., New York State Thruway Auth. v. Ashley Motor Ct., 10 N.Y.2d 151, supra; Whitmier and Ferris Co. v. State of New York, 20 N.Y.2d 413; 1 ANDERSON, NEW YORK ZONING LAW AND PRACTICE [2d ed] § 11.55. Although once open to question, it is now equally clear that the regulation of outdoor advertising for aesthetic purposes alone constitutes a valid exercise of the police power. See Matter of Cromwell v. Ferrier, 19 N.Y.2d 263; People v. Goodman, 31 N.Y.2d 262; Rochester Poster Adv. Co. v. Town of Brighton, 49 A.D.2d 273; 1 ANDERSON, NEW YORK ZONING LAW AND PRACTICE [2d ed] §§ 7.07, 11.54; 6 N.Y. JUR. Zoning and Planning Laws § 123.

Once it is established that a regulation enacted pursuant to the police power has a valid basis, it need only be shown to sustain its constitutionality that it is reasonably related to the objective for which it was enacted. Matter of Cromwell v. Ferrier, 19 N.Y.2d at 272, supra; People v. Goodman, 31 N.Y.2d at 266, supra.

Turning to an analysis of the reasonableness of the Southampton ordinance, we note that the facts in the present case are strikingly similar to those in Matter of Cromwell v. Ferrier, supra. In Cromwell, the Town of Wallkill adopted a zoning ordinance which implicitly prohibited non-accessory signs throughout the town. In upholding the constitutionality of the ordinance, we recognized that "[a]dvertising signs and billboards, if misplaced, often are egregious examples of ugliness, distraction, and deterioration." 19 N.Y.2d at 272, supra. While we cautioned that the police power should not be employed to cure every artistic nonconformity, we nevertheless sustained the ordinance as reasonable since it was substantially related to promoting the general welfare of the community. 19 N.Y.2d 263, supra; see also People v. Goodman, 31 N.Y.2d at 266, supra.

Just as in Cromwell, the ordinance under attack in this case prohibits non-accessory billboards and signs. It cannot be seriously argued that a prohibition of this nature is not reasonably related to improving the aesthetics of the community. Nor can it be said that it is oppressive. See People v. Goodman, 31 N.Y.2d 262, supra. Although prohibiting non-accessory billboards, the ordinance permits the maintenance of accessory or on-premises billboards, thus providing an operative means of advertising.

We therefore hold that aesthetics constitutes a valid basis for the exercise of the police power and that the Southampton ordinance prohibiting non-accessory billboards is substantially related to the effectuation of this objective.

Although the Southampton ordinance is constitutional on its face, its validity is also dependent upon its reasonableness, as applied. The underlying issue in making this determination is whether the amortization period provided by the ordinance is reasonable. While the purpose of an amortization period is to provide a billboard owner with an opportunity to recoup his investment, an owner need not be given that period of time necessary to permit him to recoup his investment entirely. Nor, however, should the amortization period be so short as to result in a substantial loss of his investment. In this respect, the plaintiffs should be entitled to show that the three-year amortization period provided in the Southampton ordinance is unreasonable, as applied. See Modjeska Sign Studios, Inc. v. Berle, __ N.Y.2d __ [decided herewith] [8 ELR 20183].

However, unlike the statute challenged in Modjeska, supra, the ordinance in this case affords plaintiffs an opportunity to obtain an extension of the amortization period if it can be established that, "as to a particular sign," the amortization period of three years is unreasonable. See Building Ordinance No. 26, § 3-110-70.04. This the plaintiffs concededly failed to do. We believe that the plaintiffs were required to exhaust the administrative remedy available under the ordinance before instituting this action. Until plaintiffs make application to the Town Board for an extension of the amortization period and the Town Board renders a determination thereon, we can only speculate as to the total amortization period which plaintiffs may have been granted under the ordinance.Hence, it would be premature for a court to pass upon the reasonableness of the amortization period, as applied.

Lastly, we find no merit to plaintiffs' claim that the Federal Highway Beautification Act of 1965 (23 U.S.C. § 131) and § 88 of the Highway Law preclude the removal of nonconforming billboards without compensation. See Modjeska Sign Studios, Inc. v. Berle, supra.

Accordingly the order of the appellate division is modified in accordance with this opinion, and as so modified, should be affirmed, with costs for the defendants. The statute is declared valid and the certified question is answered in the negative.

[8 ELR 20186]

Fuchsberg, J. dissents:

I dissent from so much of the majority's opinion as holds that the challenged Southampton ordinance is in consonance with the First Amendment. To my mind this measure, which with insubstantial exceptions prohibits non-accessory billboards anywhere in the town, passes beyond the bounds of a reasonable [8 ELR 20187] regulation of the time, place, and manner of expression and constitutes an outright ban on a significant form of communication. Indeed, it is far from certain that it would even allow the use of billboards for political, charitable or religious causes.

In any event, I believe it unnecessary to comment at length upon the progressive fading of the distinction between "commercial" and "noncommercial" speech (see Linmark Associates v. Willingboro, 431 U.S. 85; Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748), or to restate my grounds for believing that the distinction must be altogether effaced (People v. Remeny, 40 N.Y.2d 527, 530 [concurring opinion]). Clearly the earlier cases in this area can no longer be accepted uncritically.

Suffice it to say that billboards are essentially neutral vehicles for expression, as open to all kinds of messages as are the racks in a bookstore, the advertising columns in a newspaper, or the stage and screen in a theater. It has long been recognized that these forms of communication, although operated commercially, are entitled to a full measure of First Amendment protection (Erznoznik v. Jacksonville, 422 U.S. 205; Smith v. California, 361 U.S. 147; Grosjean v. American Press Co., 297 U.S. 233; cf. Pittsburgh Press Co. v. Pittsburgh Comm. on Human Relations, 413 U.S. 376). Of course, aesthetic and environmental preservation are valid goals for municipal planning and in the exercise of their zoning functions for such purposes communities have considerable elasticity in deciding where billboards may be placed (cf. Young v. American Mini Theatres, 427 U.S. 50). However, the ordinance before us, by its exclusion of virtually all non-accessory billboards throughout the large area encompassed by the town, goes far beyond the limits of regulation. I would therefore vote to hold the ordinance, as currently drafted, unconstitutional.