Infinity Outdoor, Inc. v. City of New York
| Decision Date | 11 October 2001 |
| Docket Number | No. 01 CV 1521(NG).,01 CV 1521(NG). |
| Citation | 165 F.Supp.2d 403 |
| Parties | INFINITY OUTDOOR, INC., Plaintiff, v. CITY OF NEW YORK, Satish K. Babbar, and Ann McCarthy, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Floyd Abrams, New York City, for plaintiff.
Lawrence S. Kahn, Deborah R. Rand, New York City, for defendant.
Plaintiff, an outdoor advertising company, brings this action challenging the constitutionality of the Zoning Resolution of the City of New York, as amended in 2001, and companion enforcement legislation. Plaintiff alleges that the Zoning Resolution unconstitutionally burdens commercial speech in violation of the First Amendment by banning advertising signs, but permitting, subject to regulation, non-commercial signs near highways and parks and that the Zoning Resolution violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment by allowing certain types of non-commercial signs anywhere in the City. Plaintiff also challenges the enforcement legislation as an unconstitutional prior restraint, as impermissibly vague, as imposing civil penalties without a scienter requirement in violation of the Due Process Clause of the Fourteenth Amendment, and as imposing excessive fines in violation of the Eighth Amendment.1 The defendants are the City of New York; Satish K. Babbar, the Acting Commissioner of the New York City Department of Buildings ("DOB"); and Ann McCarthy, the Executive Director of the New York City Environmental Control Board. Plaintiff moves for summary judgment pursuant to Fed. R.Civ.P. 56 on all of its claims except the excessive fines claim. Defendants move for summary judgment on all of plaintiff's claims. The New York Civil Liberties Union has filed an amicus curiae brief in support of plaintiff's motion for summary judgment, and the Municipal Art Society has filed an amicus curiae brief in support of defendants' motion for summary judgment.
There is no disputed issue of material fact.
The core provision of the Zoning Resolution challenged by plaintiff is the prohibition on placing off-site commercial signs near highways and public parks. New York City, like many other municipalities, divides signs into three categories. Offsite commercial signs, called "advertising signs" in the Zoning Resolution, are signs that direct attention to a business that is not located on the same lot as the sign. On-site commercial signs, called "accessory use signs," are signs that identify a business located on the same lot as the sign. Finally, non-commercial signs direct attention to something other than a business or commodity. Under the Zoning Resolution, non-commercial and on-site commercial signs are allowed near highways and parks, but off-site commercial signs are not. Plaintiff argues that this regulation impermissibly favors non-commercial speech over commercial speech. In addition, plaintiff challenges the provisions of the Zoning Resolution allowing non-commercial organizations, which may be located in any district, to display certain types of signs on their lots.
Plaintiff also challenges the implementation of the City's sign regulations, which require a permit before a sign can be displayed. As part of the permitting process, the DOB categorizes a proposed sign as an accessory, advertising, or non-commercial sign. The implementing regulations contain a presumption that signs placed by non-commercial speakers are non-commercial, but non-commercial messages by commercial entities also are treated as non-commercial. The DOB must act upon an application within 40 days or, if there is good cause for an extension, 60 days, and unsuccessful applicants may appeal a decision to the Board of Standards and Appeals ("BSA"), which must act "expeditiously." Finally, plaintiff challenges newly enhanced civil penalties of up to $15,000 for the first day of violation of the sign regulations and $25,000 for each subsequent day of violation.
While this summary of the current state of the challenged provisions of the Zoning Resolution provides an overview, the issues presented cannot be fully understood without an excursion into the history of the City's sign regulations.
In 1916, New York City became the first municipality in the United States to implement a comprehensive zoning resolution, which included limited regulation of signs. See Major Reports of the City Planning Commission 85 (1940). In 1940, the City Planning Commission amended the Zoning Resolution to create the central provision that plaintiff challenges here: the prohibition of most off-site commercial signs within 200 feet of a public park or designated highway if the sign is visible from the park or highway. See New York, N.Y., Zoning Resolution ("ZR") § 21-B (1940), renumbered §§ 32-66, 42-53 (1961), renumbered §§ 32-662, 42-55 (2001). The list of designated highways, now called "arterial highways," has expanded over the years and includes such thoroughfares as the approaches to the Holland, Lincoln, and Queens-Midtown Tunnels, the approaches to the George Washington, Brooklyn, and Manhattan Bridges, Queens and Northern Boulevards, the Bruckner and Brooklyn-Queens Expressways, the West Side Highway, and the FDR Drive.
The heart of the Zoning Resolution's regulation of signs since 1940 has been the distinction between off-site commercial and on-site signs. Since 1940, an off-site commercial sign has been called an "advertising sign." It is now defined as "a sign that directs attention to a business, profession, commodity, service or entertainment conducted, sold or offered elsewhere than upon the same zoning lot and is not accessory to a use located on the zoning lot." ZR § 12-10 (2001). However, the term for on-site signs, which are signs that direct attention to a business or profession conducted upon the premises, has changed. Under the 1940 amendments to the Zoning Resolution, on-site signs were called "business signs," but now they are referred to as "accessory use" signs. See ZR § 3(q) (1940), renumbered § 12-10 (1998).
Since 1940, each type of sign has been subject to different regulations. The 1940 ordinance did not permit off-site signs in residential or some commercial districts; permitted but regulated on-site signs in these districts; and permitted all signs in some commercial districts such as Times Square. Former ZR §§ 4(49), 4-D, 4-E (1940). Off-site signs were prohibited near highways and parks, but on-site signs were permitted without restriction. ZR §§ 3(q), 21-B (1940), renumbered §§ 32-662, 42-55 (2001).
The City's limitation on signs near highways and parks was adopted for the purpose of improving traffic safety and aesthetics in the City. Not only did the City seek to produce quality of life benefits for residents and visitors, but it also sought to produce economic benefits by increasing the number of residents and visitors. The City Planning Commission found that "[b]illboards and signs not only dominate our business streets ... but they take advantage of every opportunity to crowd in upon public places, established and maintained by public funds, including civic centers, parks, and especially express highways and bridge approaches." Major Reports of the City Planning Commission 90 (1940). The City's concern with the proliferation of signs led to a general prohibition on signs in residential and commercial districts. However, the City excluded certain commercial districts, such as Times Square, in order to increase tourism and promote commerce. The City Planning Commission also excluded on-site signs from the general prohibition because it found that the needs of businesses to identify their locations on particular lots outweighed the City's aesthetic and traffic safety interests. See id.
In the 1961 amendments to the Zoning Resolution, the City maintained the ban on advertising signs within 200 feet of a highway or public park, and began to regulate the size of advertising signs beyond 200 feet of highways and public parks. The Zoning Resolution, as amended in 1961, provided that in all manufacturing and commercial districts where advertising signs are permitted:
no advertising sign shall be located, nor shall an existing advertising sign be structurally altered, relocated, or reconstructed within 200 feet of an arterial highway or of a public park with an area of one-half acre or more, if such advertising sign is within view of such arterial highway or public park.....[B]eyond 200 feet from such arterial highway or public park, an advertising sign shall be located at a distance of at least as many linear feet therefrom as there are square feet of surface area on the face of such sign.
ZR §§ 32-66, 42-53 (1961), renumbered §§ 32-662, 42-55 (2001).2
Although, since 1940, signs bearing noncommercial copy had been included in the Zoning Resolution's broad definition of signs, the Zoning Resolution addressed where on-site and off-site commercial signs were permitted, but made no separate provision for non-commercial signs. Because of this failure to provide for the placement of non-commercial signs, the Zoning Resolution was eventually declared unconstitutional. In 1997, the New York State Supreme Court, Kings County, found that the Zoning Resolution violated the Supreme Court's seminal billboard 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 non-commercial signs throughout the city, but allowed on-site signs. The plurality found that the distinction between off-site commercial and on-site commercial signs was constitutional, but that, by allowing on-site commercial signs while prohibiting noncommercial signs, the...
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