People v. Stover

• Decision Date: 09 May 1963
• Parties: , 191 N.E.2d 272 The PEOPLE of the State of New York, Respondent, v. Marion A. STOVER and Webster Stover, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 734

240 N.Y.S.2d 734

12 N.Y.2d 462, 191 N.E.2d 272

The PEOPLE of the State of New York, Respondent, v. Marion A. STOVER and Webster Stover, Appellants.

Court of Appeals of New York.

May 9, 1963.

Paul B. Zuber, Croton-on-Hudson, for appellants.

Leonard Rubenfeld, Dist. Atty., and Anthony T. Antinozzi, Corp. Counsel for respondent.

FULD, Judge.

The defendants, Mr. and Mrs. Stover, residents of the City of Rye since 1940, live in a 2 1/2-story 1-family dwelling located in a pleasant and built-up residential district, on the corner of Rye Beach and Forest Avenues. A clothesline, filled with old cloths and rags, made its first appearance in the Stovers' front yard in 1956 as a form of 'peaceful protest' against the high taxes imposed by the city. And, during each of the five succeeding years, the defendants added another clothesline to makr their continued displeasure with the taxes. In 1961, therefore, six lines, from which there hung tattered clothing, old uniforms, underwear, rags and scarecrows, were strung across the Stovers' yard three from the porch across the front yard to trees along Forest Avenue and three from the porch across the side yard to trees along Rye Beach Avenue.

In August of 1961, the city enacted an ordinance prohibiting the erection and maintenance of clotheslines or other devices for hanging clothes or other fabrics in a front or side yard abutting a street (General Ordinances, § 4-3.7). However, the ordinance provides for the issuance of a permit for the use of such clotheslines if there is 'a practical difficulty or unnecessary hardship in drying clothes elsewhere on the premises' and grants a right of appeal to the applicant if a permit is denied. ¹

Following enactment of the ordinance, Mrs. Stover, the record owner of the property, applied for a permit to maintain clotheslines in her yard. Her application was denied because, she was advised, she had sufficient other property available for hanging clothes and she was directed to remove the clotheslines which were in the yards abutting the streets. Although no appeal was taken from this determination and no permit ever issued, the clotheslines were not removed. Relying upon the ordinance, the city thereupon charged the defendants with violating its provisions. They were tried and convicted and their judgments of conviction have been affirmed by the County Court of Westchester County. Upon the trial the defendant Webster Stover disputed the sufficiency of the evidence to connect him with the erection or maintenance of the clotheslines but he does not do so here, urging instead that the ordinance, as it has been applied to him and his wife, is unconstitutional both as an interference with free speech and as a deprivation of property without due process. ²

It is a fair inference that adoption of the ordinance before us was prompted by the conduct and action of the defendants but we deem it clear that, if the law would otherwise be held constitutional, it will not be stricken as discriminatory or invalid because of its motivation. (Cf. Town of Hempstead v. Goldblatt, 9 N.Y.2d 101, 211 N.Y.S.2d 185, 172 N.E.2d 562, affd. 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130.) Our problem, therefore, is to determine whether the law violates First Amendment rights or otherwise exceeds the police power vested in a city on the ground that it was enacted without regard to considerations of public health, safety and welfare.

The People maintain that the prohibition against clotheslines in front and side yards was 'intended to provide clear visibility at street corners and in driving out of driveways, and thus avoid and reduce accidents to reduce distractions to motorists and pedestrians; and to provide greater opportunity for access in the event of fires'. Although there may be considerable doubt whether there is a sufficiently reasonable relationship between clotheslines and traffic or fire safety to support an exercise of the police power, it is our opinion that the ordinance may be sustianed as an attempt to preserve the residential appearance of the city and its property values by banning, insofar as practicable, unsightly clotheslines from yards abutting a public street. In other words, the statute, though based on what may be termed aesthetic considerations, proscribes conduct which offends sensibilities and tends to debase the community and reduce real estate values.

There are a number of early decisions, both in this State (see People ex rel. Wineburgh Adv. Co. v. Murphy, 195 N.Y. 126, 88 N.E. 17, 21 L.R.A.,N.S., 735) and elsewhere (see, e. g., Varney & Green v. Williams, 155 Cal. 318, 100 P. 867, 21 L.R.A.,N.S., 741; City of Chicago v. Gunning System, 214 Ill. 628, 73 N.E. 1035, 70 L.R.A. 230; City of Passaic v. Paterson Bill Posting Adv. & Sign Painting Co., 72 N.J.L. 285, 62 A. 267; Bryan v. City of Chester, 212 Pa. 259, 61 A. 894), which hold that aesthetic considerations are not alone sufficient to justify exercise of the police power. But since 1930 this court has taken pains repeatedly to declare that the issue is an open and 'unsettled' one in New York. (People v. Rubenfeld, 254 N.Y. 245, 248-249, 172 N.E. 485, 486-487; see, also, Perlmutter v. Greene, 259 N.Y. 327, 332, 182 N.E. 5, 6, 81 A.L.R. 1543; New York State Thruway Auth. v. Ashley Motor Ct., Inc., 10 N.Y.2d 151, 156-157, 218 N.Y.S.2d 640, 642-643, 176 N.E.2d 566, 568-569.) In addition, we have actually recognized the governmental interest in preserving the appearance of the community by holding that, whether or not aesthetic considerations are in and of themselves sufficient to support an exercise of the police power, they may be taken into account by the legislative body in enacting laws which are also designed to promote health and safety. (See, e. g., Matter of Wulfsohn v. Burden, 241 N.Y. 288, 303, 150 N.E. 120, 124, 43 A.L.R. 651; Dowsey v. Village of Kensington, 257 N.Y. 221, 230, 177 N.E. 427, 430, 86 A.L.R. 642; Perlmutter v. Greene, 259 N.Y. 327, 331-332, 182 N.E. 5, 6, supra; Baddour v. City of Long Beach, 279 N.Y. 167, 174, 18 N.E.2d 18, 21, 124 A.L.R. 1003; Matter of Presnell v. Leslie, 3 N.Y.2d 384, 389, 165 N.Y.S.2d 488, 492, 144 N.E.2d 381, 383; New York State Thruway Auth. v. Ashley Motor Ct., Inc., 10 N.Y.2d 151, 157, 218 N.Y.S.2d 640, 643, 176 N.E.2d 566, 569, supra.) 'AEsthetic considerations', this court wrote in Dowsey v. Village of Kensington (257 N.Y. 221, 230, 177 N.E. 427, 430, supra), 'are, fortunately, not wholly without weight in a practical world.'

Once it be conceded that aesthetics is a valid subject of legislative concern, the conclusion seems inescapable that reasonable legislation designed to promote that end is a valid and permissible exercise of the police power. If zoning restrictions 'which implement a policy of neighborhood amenity' are to be stricken as invalid, it should be, one commentator has said, not because they seek to promote 'aesthetic objectives' but solely because the restrictions constitute 'unreasonable devices of implementing community policy.' (Dukeminier, Zoning for Aesthetic Objectives: A Reappraisal, 20 Laws & Contemp.Prob. 218, 231.) Consequently, whether such a statute or ordinance should be voided should depend upon whether the restriction was 'an arbitrary and irrational method of achieving an attractive, efficiently functioning, prosperous community and not upon whether the objectives were primarily aesthetic.' (Dukeminier, loc. cit.) And, indeed, this view finds support in an ever-increasing number of cases from other jurisdictions which recognize that aesthetic considerations alone may warrant an exercise of the police power. (See, e. g., Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 99 L.Ed. 27; General Outdoor Adv. Co. v. Department of Public Works, 289 Mass. 149, 187-188, 193 N.E. 799, app. dsmd. General Outdoor Adv. Co. v. Callahan, 297 U.S. 725, 56 S.Ct. 495, 80 L.Ed. 1008; Sunad, Inc., v. City of Sarasota, 122 So.2d 611 (Fla.); State ex rel. Civello v. New Orleans, 154 La. 271, 284-285, 97 So. 440, 33 A.L.R. 260; Best v. Zoning Bd. of Adjustment, 393 Pa. 106, 116-117, 141 A.2d 606; State ex rel. Saveland Park Holding Corp. v. Wieland, 269 Wis. 262, 271-272, 69 N.W.2d 217, cert. den. 350 U.S. 841, 76 S.Ct. 81, 100 L.Ed. 750; Churchill & Tait v. Rafferty, 32 P.I. 580, app. dsmd. 248 U.S. 591, 39 S.Ct. 20, 63 L.Ed. 436; see, also, 8 McQuillin, Municipal Corporations (3d ed.), § 25.31.) As Mr. Justice Douglas, writing for a unanimous court in Berman, put it (348 U.S., at p. 33, 75 S.Ct., at p. 102):

'The concept of the public welfare is broad and inclusive. * * * The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. * * * If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.'

Cases may undoubtedly arise, as we observed above, in which the legislative body goes too far in the name of aesthetics (cf. Matter of Mid-State Adv. Corp. v. Bond, 274 N.Y. 82, 8 N.E.2d 286; Dowsey v. Village of Kensington, 257 N.Y. 221, 177 N.E. 427, supra; Dukeminier, Zoning for Aesthetic Objectives: A Reappraisal, 20 Law & Contemp.Prob 218, 231) but the present, quite clearly, is not one of them. The ordinance before us is in large sense regulatory rather than prohibitory. It causes no undue hardship to any property owner, for it expressly provides for the issuance of a permit for clotheslines in front and side yards in cases where there is practical difficulty or unnecessary hardship in drying clothes elsewhere on the premises. Moreover, the ordinance imposes no arbitrary or capricious standard of beauty or conformity upon the community. It simply proscribes...