City of New York v. Allied Outdoor Advertising, Inc.
| Decision Date | 31 March 1997 |
| Citation | 659 N.Y.S.2d 390,172 Misc.2d 707 |
| Parties | CITY OF NEW YORK, Plaintiff, v. ALLIED OUTDOOR ADVERTISING, INC., et al., Defendants. CITY OF NEW YORK, Plaintiff, v. MOEN ELECTRIC CORP., et al., Defendants. |
| Court | New York Supreme Court |
Paul A. Crotty, Corporation Counsel of New York City (Louise Lippin, of counsel), for plaintiff.
Davidoff & Malito, New York City (Howard Weiss, of counsel), for Allied Outdoor Advertising, Inc., and others, defendants.
Plaintiff City of New York ("City") brought this nuisance abatement action, alleging that defendants, as owners and operators of a billboard sign and structure maintained on premises located at 153-157 Hamilton Avenue, Brooklyn, New York, and located within an M1-1 manufacturing zoning district, 1.) created a public nuisance within the meaning of section 7-703(k) of the Administrative Code of the City of New York (the "Code") by violating section 42-53 of the Zoning Resolution of the City of New York (the "Zoning Resolution"); 2.) violated sections 27-147, 27-148 and 27-498 of the Code; and 3.) created a common law nuisance. The City now moves for a preliminary injunction enjoining defendants from maintaining the alleged public nuisance by ordering them to remove the sign and structure allegedly erected without a permit and located within 200 feet of an arterial highway and visible therefrom. 1 Defendants contend that the aforesaid regulations impose an unconstitutional restriction on their First Amendment rights to free speech under the United States Constitution.
Moen Electric Corp. ("Moen") is the owner of the subject premises, upon which is located a building used as an electrical supply store. Thomas Migliaccio is the president of Moen. Ace Sign and Rigging Corp. ("Ace") owns the sign structure erected on top of the Moen building. The subject premises are located within an M1-1 manufacturing zoning district that is within 200 feet of the Brooklyn-Queens Expressway.
Earl Prentice, an inspector and supervisor for the New York City Department of Buildings, whose duties included the inspection of premises within the borough of Brooklyn to determine if they are in compliance with the Code and the Zoning Resolution, states in his affidavit that he visited the Moen premises on September 26, 1994 and there observed "an illuminated, double-faced advertising billboard, measuring approximately fourteen by forty feet" within 200 feet of the Brooklyn-Queens Expressway and that the signs on each side of the billboard contained the following copy: "Call 1-212-COP-SHOT. $10,000 for the Arrest and Conviction of Anyone Shooting a N.Y.C. Police Officer." Prentice concluded that the billboard had been erected without the necessary permits in violation of sections 27-147, 27-148 and 27-498 of the Code and was in violation of section 42-53 of the Zoning Resolution. He then issued notices of violation.
Prentice also states that, on April 15, 1995, he again visited the premises and observed the same billboard. At that time, one side of the billboard was blank and the other side read:
In response to plaintiff's motion, defendants submit a Department of Buildings approval for the proposed illuminated "roof/ground sign ... accessory business sign" dated August 27, 1990. On said approval it is noted that the tenant of the relevant premises was Philip Morris and that the text for the sign was to be "variable copy ... Marlboro ... Parliament." Defendants also submit the Department of Buildings approval, dated October 17, 1989, for the installation of a "structure for business sign," and a Work Permit for the installation of a "structure for business sign." The City states that the Department of Buildings' approval and issuance of the Work Permit were based on the statement on the application that the structure was for a "business sign." The City also states that approval for "the wording, image and dimensions of the sign ... itself" is based on the sign's conformance "with the applicable provisions of the Administrative Code and the Zoning Resolution." The City does not contend and offers no evidence that the erection or maintenance of the sign violates any other provision of the City's Building Code.
Sections 27-147, 27-148 and 27-498 of the Code forbid, inter alia, the erection of outdoor sign structures without the issuance of a written permit.
Section 41-00 of the Zoning Resolution states that the general purposes of the provisions of the Resolution for manufacturing districts are "public health, safety, and general welfare."
Section 11-111 of the Zoning Resolution provides that "[i]n all districts [after December 15, 1961,] any new building or other structure or any tract of land shall be used, constructed, or developed only in accordance with the use, bulk, and all other applicable regulations of this resolution."
Section 12-10 of the Zoning Resolution defines an advertising sign as "a sign which directs attention to a business, profession, commodity, service, or entertainment conducted, sold, or offered elsewhere than upon the same zoning lot," and defines a business sign as "an accessory sign which directs attention to a profession, business, commodity, service, or entertainment conducted, sold, or offered upon the same zoning lot."
Section 12-10 of the Zoning Resolution exempts the following from the provisions of the Resolution:
(a) Signs of a duly constituted governmental body: including traffic or similar regulatory devices, legal notices, or warnings at railroad crossings.
(b) Flags or emblems of a political, civic, philanthropic, educational, or religious organization.
(c) Temporary signs announcing a campaign, drive, or event of the above organizations.
(d) Memorial signs or tablets.
(e) Signs denoting architect, engineer, or contractor when placed on construction sites and not exceeding 25 square feet in area.
(f) Signs required to be maintained by law or governmental order, rule, or regulation with a total surface area not exceeding ten square feet on any zoning lot.
(g) Small signs displayed for the direction or convenience of the public, including signs which identify rest rooms, freight entrances, or the like, with a total surface area not exceeding five square feet on any zoning lot.
Section 42-52 of the Zoning Resolution provides that "accessory business signs or advertising signs are permitted with no restrictions on size, illumination, or otherwise, except as provided in ... Section 42-53." Section 42-53 provides that, in M1, M2 and M3 districts, "no advertising sign shall be located ... within 200 feet of an arterial highway ... if such advertising sign is within view of such arterial highway." Appendix C of the Zoning Resolution lists the Brooklyn-Queens Expressway as an arterial highway.
In 1980, the City Planning Commission (the "Commission") proposed an amendment to the Zoning Resolution to incorporate the standards of the federal Highway Beautification Act of 1965 (the "Act"), 23 U.S.C. § 131, for advertising signs near arterial highways in certain commercial and manufacturing districts. The Commission resolution stated that the City was "facing an impending loss of $25 million in federal highway funds unless it complies with the ... Act," which "would require the enforcement of local zoning controls affecting off-premises advertising signs within 660 feet of an arterial highway." The amendment to section 42-53 of the Zoning Resolution "grandfathers" certain advertising signs existing prior to November 1, 1979. In enacting the amendment, the City Planning Commission adopted the intent of Congress, as stated in 23 U.S.C. § 131(a), that, inter alia, "the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to the Interstate System and the primary system should be controlled in order to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty." The Commission noted that the Act. 2
The City contends that the sign is illegal because permits for an "advertising" sign were not obtained as they should have been since the advertising copy on the sign directs attention to a business elsewhere than on the same lot. The City further contends that the sign is in violation of section 42-53 of the Zoning Resolution because the sign is an advertising sign in an M-1 manufacturing zoning district and located within 200 feet of the Brooklyn-Queens Expressway and visible therefrom.
The City maintains that the cited sections of the Administrative Code and the Zoning Resolution are a proper exercise of its police power to regulate outdoor advertising and relies on Suffolk Outdoor Advertising Co., Inc. v. Hulse, 43 N.Y.2d 483, 402 N.Y.S.2d 368, 373 N.E.2d 263 (1977) for said proposition, and further argues that the Zoning Resolution does not restrict speech based on content. Defendants challenge the cited provisions as violative of their First Amendment rights and rely chiefly on Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) for the proposition that, while the City may give greater protection to one form of commercial speech over another, it may not afford any commercial speech greater protection than noncommercial speech nor prefer one category of noncommercial speech over any other.
It is beyond dispute that, in the exercise of its police power, the City may regulate commercial speech, and, indeed, prefer one type of commercial speech over another. As the plurality opinion in Metromedia noted, in discussing a San Diego ordinance that prohibited, city-wide, offsite commercial billboards while permitting onsite commercial billboards,
[t]he city has decided that in a limited instance--onsite commercial advertising--its...
To continue reading
Request your trial
-
Infinity Outdoor, Inc. v. City of New York
...case, Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). See City of New York v. Allied Outdoor, 172 Misc.2d 707, 714-15, 659 N.Y.S.2d 390 (1997). In Metromedia, the Supreme Court had addressed a San Diego ordinance that prohibited off-site commercial and no......
-
Clear Channel Outdoor, Inc. v. City of New York
...signs were permitted.5 The amendment was enacted in response to a New York State court decision in City of New York v. Allied Outdoor Advertising, Inc., 172 Misc.2d 707, 659 N.Y.S.2d 390 (Sup.Ct. Kings Co.1997), which held that New York could not favor on-site accessory signs over non-comme......
-
Marathon Outdoor, LLC v. Vesconti, 00CIV.3549(RMB).
...respond that the Zoning Resolution was amended in response to a New York State Supreme Court ruling in City of New York v. Allied Outdoor Advertising, 172 Misc.2d 707, 659 N.Y.S.2d 390 (Sup.Ct. Kings Co.1997), in which the Court held that § 42-53 "unconstitutionally favors onsite commercial......
-
Mogul Media, Inc. v. City of N.Y.
...it impermissibly favored commercial off-site advertisements over non-commercial advertisements. City of New York v. Allied Outdoor Advert., Inc., 659 N.Y.S.2d 390, 394-95 (Sup. Ct. 1997). In response, the City revised its regulations. See Infinity Outdoor, 165 F. Supp. 2d at 408; Clear Chan......