Cromwell v. Ferrier

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: BREITEL; FINCH; VAN VOORHIS and KEATING; FULD, C.J., and BURKE, SCILEPPI and BERGAN, JJ., concur with BREITEL
• Citation: Cromwell v. Ferrier, 19 N.Y.2d 263, 279 N.Y.S.2d 22, 225 N.E.2d 749, 21 A.L.R.3d 1212 (N.Y. 1967)
• Decision Date: 02 March 1967
• Parties: , 225 N.E.2d 749, 21 A.L.R.3d 1212 In the Matter of Floyd I. CROMWELL, Appellant, v. Harvey FERRIER, as Building Inspector of the Town of Wallkill et al., Respondents.

Page 22

279 N.Y.S.2d 22

19 N.Y.2d 263, 225 N.E.2d 749, 21

A.L.R.3d 1212

In the Matter of Floyd I. CROMWELL, Appellant, v. Harvey FERRIER, as Building Inspector of the Town of Wallkill et al., Respondents.

Court of Appeals of New York.

March 2, 1967.

Samuel W. Eager, Jr., Middletown, for appellant.

Angelo J. Ingrassia and Victor O. Smith, Middletown, for respondents.

BREITEL, Judge.

Petitioner appeals from an order of the Appellate Division, Second Department. He brought this proceeding under article 78 of CPLR to review determinations of the respondents Building Inspector and Zoning Board of Appeals of the Town of Wallkill that two billboards on petitioner's land violated a town zoning ordinance. Special Term denied the application and the Appellate Division affirmed in a short memorandum by a divided court.

An important constitutional issue is involved. Petitioner concedes that the signboards violate the provisions of the local law in question but argues that the ordinance is unconstitutional.

Since 1961, petitioner has been the co-owner of a 200-acre parcel of land in the Town of Wallkill. The tract is bisected by a highway, Route 17, which passes through the parcel in a general north-south direction. Shortly after acquiring the land, petitioner constructed a service station and a diner upon a portion of the premises west of the highway.

The zoning ordinance was adopted March 14, 1963. In July, 1964 petitioner contracted with a display advertiser for the construction and installation of two signs, advertising petitioner's service station and restaurant. The signs were to be located on the portion of petitioner's land east of Route 17. Before the signs had been completed respondent Building Inspector served a stop order on petitioner on the ground that the signs violated the town zoning ordinance. Petitioner appealed to the Zoning Board which affirmed the action of the Building Inspector.

The ordinance contains a number of sections which set forth a comprehensive and detailed plan for the regulation of signs in the township. The town is zoned into a number of use districts (e.g., 'business, highway commercial, industrial') and there are detailed provisions regulating the size, location and number of signs allowed in each district. The regulations, however, cover only signs which are 'related to an establishment located on the same lot' ('accessory' signs) and 'non-accessory' signs are implicitly prohibited throughout the township.

As the signs advertising petitioner's service station and restaurant are not on the same lot as the establishments they advertise, they are 'non-accessory' signs and, therefore, are excluded by the ordinance. Petitioner argues that the zoning ordinance, insofar as it prohibits the maintenance of nonaccessory signs anywhere within the township, is 'arbitrary and unreasonable' and that its application results in 'an unconstitutional deprivation of the property of Petitioner'.

Special Term held that 'The basic issue to be resolved is whether the Zoning Law regulates or prohibits billboards'. The court dismissed the petition because the law 'does not prohibit; it does regulate'. On appeal, the majority in the Appellate Division came to the same conclusion as it regarded the ordinance 'as reasonably regulating the erection of signs in the Town', and that the ordinance 'promotes symmetry and protects the Town from becoming an eyesore'. The two Justices who dissented concluded that the 'flat prohibition of all advertising signs on all vacant land' was 'unreasonable and confiscatory', citing Matter of Mid-State Adv. Corp. v. Bond (274 N.Y. 82, 8 N.E.2d 286).

The Appellate Division distinguished the ordinance at issue from the one ruled unconstitutional in the Bond case (supra) 'where erection of billboards or signboards, save for three isolated exceptions, was prohibited throughout the City of Troy'. The dissenting Justices in that court, however, are correct in their conclusion that Bond is in point. The ordinance in that case read as follows: 'It shall be unlawful to construct or erect any billboard and/or signboard within the corporate limits of the City of Troy, except upon real property owned or leased by the occupants thereof and for the sole purpose of advertising the sale of such real property or of merchandise kept for sale upon such premises. The provision of this Ordinance shall not apply to sky signs, as provided for in Section 172 of the Building Code, erected or to be erected upon buildings three stories or more in height.' (274 N.Y., p. 84, 8 N.E.2d p. 286).

The petitioner in Bond (supra) applied for a permit to erect billboards on vacant lots in the City of Troy and the application was denied on the ground that they would violate this ordinance. Special Term then granted the petitioner a peremptory order of mandamus to compel the city to issue the permit, but the Appellate Division, one Justice dissenting, reversed on the law (Kahl v. Sinclair Refining Co., 249 App.Div. 681, 291 N.Y.S. 719).

On appeal, this court reversed the order of the Appellate Division and affirmed that of Special Term. The majority held: 'We think the ordinance is void on its face. It is not an attempt by zoning to exclude billboards or other advertising signs from localities where such devices might mar the beauty of natural scenery or distract travelers on congested city streets. Even were we to assume that outdoor advertising on private property within public view may without compensation be restricted by law for cultural or aesthetic reasons alone, this prohibition, which includes All land in the city of Troy, without definition of the structures proscribed or other standard of regulation, cannot be sustained consistently with fundamental constitutional principles. N.Y.Const. art. 1, § 6; U.S.Const. Fourteenth Amendment, § 1. cf. People ex rel. Wineburgh Adv. Co. v. Murphy, 195 N.Y. 126, 88 N.E. 17, 21 L.R.A. (N.S.) 735; People ex rel. Publicity Leasing Co. v. Ludwig, 218 N.Y. 540, 113 N.E. 532; People v. Rubenfeld, 254 N.Y. 245, 248, 249, 172 N.E. 485; Perlmutter v. Greene, 259 N.Y. 327, 182 N.E. 5 (81 A.L.R. 1543). See In re Opinion of Justices, 232 Mass. 605, 124 N.E. 319; General Outdoor Adv. Co. v. Dept. of Public Works, 289 Mass. 149, 193 N.E. 799; Freund, Police Power, § 182; Larremore, Public Aesthetics, 20 Harvard Law Review, 35.' (274 N.Y., supra, pp. 84--85, 8 N.E.2d p. 286; emphasis in original.)

Judge FINCH, the sole dissenter, argued that 'It is not unreasonable for a municipality or a state to desire to beautify its streets or highways', and that the ordinance should not be deemed unconstitutional simply because it sought to achieve that end (274 N.Y. supra, p. 85, 8 N.E.2d p. 287).

For present purposes, then, the ordinance involved in Bond (supra) and the one at issue here are indistinguishable. The provisions of the Wallkill zoning ordinance are 'substantially different' from those considered in Bond only insofar as the prohibition of nonaccessory signs may be implied from the comprehensive provisions of th ordinance regulating accessory signs. But the effects of the two ordinances upon prospective owners of nonaccessory signs are the same: the signs are prohibited.

Both Special Term and the majority in the Appellate Division fell into an analytical trap when they distinguished Bond (supra) from this case on the ground that one ordinance 'prohibited' nonaccessory signs while the other 'regulates' signs.

It is possible to manipulate concepts by the selection of a different level of verbalization, that is, a different level of generalization. An entirely different result can be 'logically' forced. In this case, by selecting a wider generalization, namely, that of regulation of signs, it can be said that there is no prohibition of nonaccessory signs because any kind of regulation must embrace incidental and subordinate prohibition. On the other hand, by declining to consider all signs in one class and, instead, by insisting that there are two classes of signs each independent of the other, namely, accessory signs and nonaccessory signs, one forces the conclusion that there is an absolute prohibition of nonaccessory signs and only regulation with respect to accessory signs. That kind of analysis is fruitless because the conclusion is dictated by the way one starts the train of reasoning. The real question is more often whether particular conduct is prohibited regardless of one's method of nomenclature or verbal classification.

On any realistic view, the ordinance involved in this case is indistinguishable in effect from the one ruled unconstitutional in Bond (supra). Consequently, a re-examination of the Bond case is required if the ordinance at issue is to be sustained as constitutional.

It is concluded that the decisional as well as the practical bases for the holding in Bond (supra) are either no longer valid or have changed so considerably that the case should be overruled. As Judge FINCH commented in his dissent in Bond: 'The Constitution, it is true, does not change with the times, nor does an emergency or unusual circumstances warrant a disregard of constitutional provisions. A determination of what is due process, aside from procedural matters, however, depends upon the reasonableness of the legislation. Circumstances, surrounding conditions, changed social attitudes, newly- acquired knowledge, do not alter the Constitution, but they do alter our view of what is reasonable. Restrictions upon the use of property, which were deemed unreasonable in 1909, are regarded today as entirely reasonable and natural.' (274 N.Y. 82, 87, supra, 8 N.E.2d 286, 288.)

The question, then, is whether the rule in the Bond case (supra) reflects present conditions and understanding of present-day community conditions.

One important factor in the courts' increasingly permissive treatment of similar zoning ordinances has been the gradual acceptance of the...