Lusk v. Village of Cold Spring, Docket No. 05-4999 CV.

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtSack
Citation475 F.3d 480
PartiesDonald LUSK, Plaintiff-Appellant, v. VILLAGE OF COLD SPRING, Defendant-Appellee.
Decision Date31 January 2007
Docket NumberDocket No. 05-4999 CV.
475 F.3d 480
Donald LUSK, Plaintiff-Appellant,
v.
VILLAGE OF COLD SPRING, Defendant-Appellee.
Docket No. 05-4999 CV.
United States Court of Appeals, Second Circuit.
Argued: March 22, 2006.
Decided: January 31, 2007.

[475 F.3d 481]

Stephen Bergstein, Thornton, Bergstein & Ullrich, LLP, Chester, NY, for Plaintiff-Appellant.

James A. Randazzo, Servino, Santangelo & Randazzo, LLP, Hawthorne, New York, for Defendant-Appellee.

Before STRAUB and SACK, Circuit Judges, and TRAGER, District Judge.*

SACK, Circuit Judge.


The plaintiff, Donald Lusk, is a resident of the Architectural and Historic District (the "Historic District") of the Village of Cold Spring, New York (the "Village"). In 2004, he posted various signs on his residential property protesting a real estate development on Cold Spring's Hudson River waterfront. The Village served Lusk with a "Violation Notice" charging him with six counts of violating various provisions of the Cold Spring Village Code (the "Code"). Lusk then filed a complaint in the United States District Court for the Southern District of New York under 42 U.S.C. § 1983 in which he alleged that the Code provisions violated the First Amendment to the United States Constitution made applicable to the Village through the Fourteenth Amendment. He sought declaratory and injunctive relief, nominal damages, and attorney's fees.

The district court (Colleen McMahon, Judge), in a thoughtful and thorough opinion, granted Lusk's motion to enjoin the Village from enforcing some of the Code's challenged provisions, concluding that they were unconstitutional. See Lusk v. Vill. of Cold Spring, 418 F.Supp.2d 314, 321-24 (S.D.N.Y.2005). The court decided, however, that Chapter 64 of the Code, which requires that the Village's Architectural and Historic District Review Board (the "Review Board" or "Board") give prior approval to any physical alterations to residential or commercial buildings within the Historic District, was constitutional both on its face and as applied to Lusk's signs. Id. at 324-28. The court reasoned that Chapter 64 was a content-neutral regulation of speech that furthered the substantial government interest in preserving the aesthetic integrity of the Historic District while leaving open to the plaintiff ample alternative channels of communication. It further determined that "Chapter 64 did not confer unfettered discretion on the Review Board" with respect to whether or not to grant approval, concluding that Chapter 64 therefore was not facially unconstitutional. Id. at 328. It denied Lusk's motion to enjoin the Village's enforcement of that portion of the Code.

The Village does not cross-appeal to contest the district court's judgment insofar as it struck down as unconstitutional several portions of the Code. The sole issue before us, therefore, is whether the district court erred in concluding that Chapter 64 was constitutional. We conclude that although the standards employed by Chapter 64 are constitutionally permissible, the procedures it employs to effect them are not.

BACKGROUND

Lusk's Violations of the Code

Lusk resides on Main Street in the Historic District. His house is flush against the front sidewalk. There is therefore no front lawn or other space between the house and the sidewalk.

In June 2004, Lusk began placing signs, which appear from pictures of them included

475 F.3d 482

in the record to have been made by applying spray paint to large pieces of plywood, on or leaning against his front porch. The signs conveyed Lusk's protest against a real estate development on the Cold Spring waterfront, with messages such as, "Go to public hearing to see plans for our waterfront"; "Think that building is big"; "Why does local government change[] zoning laws[] for-condos"; and "Help save the waterfront from 40'-foot high monster condos."1 On July 19, 2004, the Building Inspector for the Village of Cold Spring served Lusk with a Violation Notice for having displayed two of the signs without requisite prior approval. It charged Lusk with several violations of the Code:

(1) Two counts of violating Code § 64-5(A), which provides that "[i]t shall be unlawful for any owner or person occupying property located within the [Historic] District to [m]ake, permit or maintain any alteration to any improvement located within the District unless the Historic District Review Board has previously issued a Certificate of Economic Hardship or a Certificate of Appropriateness."

(2) Two counts of violating Code § 134-9(B), which prohibits the posting of signs without a site-plan review by the Village Planning Board.

(3) Two counts of violating Code § 134-9(G)(1), which provides that "signs are a permitted accessory to an establishment on the same lot." The Notice alleged that Lusk was in violation of section 134-9(G)(1)(b) because the signs did not qualify as an "accessory" and because the aggregate size of his signs exceeded thirty-two square feet.

On August 2, 2004, the Building Inspector issued a ticket to Lusk requiring him to appear at the Village of Cold Spring Justice Court on August 9, 2004, in order to respond to the alleged violations of the Code.2 On November 1, 2004, prior to a disposition in the criminal proceedings against him, Lusk filed a complaint in the United States District Court for the Southern District of New York pursuant to 42 U.S.C. §§ 1983 and 1988, in which he sought various forms of declaratory and injunctive relief, nominal damages and attorney's fees. He alleged that the provisions of the Code he was charged with violating infringed his rights under the First Amendment to the United States Constitution, which are applicable to the Village through the Fourteenth Amendment. He also asserted that Chapter 104 of the Code, which regulates the posting of signs in such public places as utility poles, public streets, and public sidewalks, as applied to his signs, violated the First Amendment.3

The district court, abstaining from interference with Lusk's ongoing criminal proceedings, see Lusk, 418 F.Supp.2d at 318, set a briefing schedule. On January 10, 2005, Lusk pled guilty in Village Justice

475 F.3d 483

Court to one count of posting signs without a permit, a violation of Chapter 134-9B.

The District Court Opinion

The district court first consolidated Lusk's request for a preliminary injunction with his request for a permanent injunction. Lusk, 418 F.Supp.2d at 317-18. The Village conceded that Chapter 104 was unconstitutional. The court therefore granted Lusk's motion to enjoin its enforcement. Id. at 321.

The court also granted Lusk's motion to enjoin the enforcement of Chapter 134. Id. at 321-24. That provision defines "sign" as "[a]ny device for visual communication that is used for the purpose of bringing the subject thereof to the attention of the public, but not including any flag, badge or insignia of any governmental agency or any civic, charitable, religious, patriotic, fraternal or similar organization." Id. at 321. Because this definition of "sign" explicitly excludes from its scope some communications based on their content, and because all of Chapter 134's regulations of signs incorporated that definition, the court concluded that the ordinance was "not content neutral, and for that very reason cannot possibly [have been] the narrowest means to effect [the] compelling governmental interest" in "promoting aesthetics and traffic safety." Id. at 324, 323. Employing a strict scrutiny analysis, the court held the entire chapter to be unconstitutional. Id. at 324.

The district court concluded, however, that Chapter 64, which purports to regulate the appearance of residential and commercial properties within the Historic District, is constitutional. The court first asked whether Chapter 64 is content neutral, noting that its stated purpose is the "enhancement, perpetuation, preservation and use of improvements of historic, aesthetic, and architectural value" in order to foster "the health, prosperity, safety and welfare of the people of the Village of Cold Spring." Id. To this end, the Code requires residents seeking to make or maintain an "alteration to any improvement" in the Historic District first to apply for a "Certificate of Economic Hardship" or a "Certificate of Appropriateness" ("COA") from the Review Board. Code § 64-5(A). The Review Board is required to act on applications within forty-five days of the first formal review by the Review Board. The district court decided that this requirement "applies to all types of alterations and improvements — and hence, to all types of signs." Id. at 326. The court thus concluded that the regulation was content neutral, triggering only an "intermediate" level of scrutiny. Id.

Under "intermediate scrutiny," a regulation must be "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Applying intermediate scrutiny, the district court concluded that the ordinance serves a "substantial government interest." Lusk, 418 F.Supp.2d at 326 (citing Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 805, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)) ("It is well settled that the state may legitimately exercise its police powers to advance esthetic values.")). The court further concluded that the Review Board's approval process for alterations to physical improvements established by the Code is not more burdensome than necessary since "[i]t is possible to imagine that, without these regulations, the historic character of the district would be entirely wiped away." Id. at 327 (footnote omitted).

Finally, the court concluded that the regulation leaves open ample alternative

475 F.3d 484

channels of communication: "[I]f I am reading the literal text of Chapter 64 correctly, plaintiff and other residents of the...

To continue reading

Request your trial
39 practice notes
  • Marin v. Town of Se., No. 14–CV–2094 (KMK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 30, 2015
    ...Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ); see also Lusk v. Village of Cold Spring, 475 F.3d 480, 495 n. 16 (2d Cir.2007) ("[C]ontent-neutral criteria for political and other signage that are sufficiently objective and precise, and that permit ......
  • Connecticut Bar Ass'n v. U.S., Civil Action No. 3:06-CV-729 (CFD).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • September 9, 2008
    ...make them a fair ground for litigation, and a balance of the hardships tipping decidedly in their favor. Lusk v. Village of Cold Spring, 475 F.3d 480, 485 (2d B. Motion to Dismiss 1. Failure to State a Claim—Rule 12(b)(6) The threshold for surviving the motion to dismiss does not rise to th......
  • Robar v. Vill. of Potsdam Bd. of Trs., 8:20-CV-0972 (LEK/DJS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • September 21, 2020
    ...to serve a significant governmental interest, [and] leave open ample alternatives for communication[.]" Lusk v. Vill. of Cold Spring, 475 F.3d 480, 493 (2d Cir. 2007) (internal quotation marks and alterations omitted). These requirements are conjunctive, and the failure to meet any one of t......
  • M.B. ex rel. Martin v. Liverpool Central School, No. 5:04-CV-1255.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • March 30, 2007
    ...on official permission — a Parks Department permit — they do constitute a `prior restraint' on speech."); Lusk v. Village of Cold Spring, 475 F.3d 480, 485 (2d Cir.2007) ("A law requiring prior administrative approval of speech, falls within the prior restraint Plaintiffs contend, that KFA-......
  • Request a trial to view additional results
40 cases
  • Marin v. Town of Se., No. 14–CV–2094 (KMK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 30, 2015
    ...Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ); see also Lusk v. Village of Cold Spring, 475 F.3d 480, 495 n. 16 (2d Cir.2007) ("[C]ontent-neutral criteria for political and other signage that are sufficiently objective and precise, and that permit ......
  • Connecticut Bar Ass'n v. U.S., Civil Action No. 3:06-CV-729 (CFD).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • September 9, 2008
    ...make them a fair ground for litigation, and a balance of the hardships tipping decidedly in their favor. Lusk v. Village of Cold Spring, 475 F.3d 480, 485 (2d B. Motion to Dismiss 1. Failure to State a Claim—Rule 12(b)(6) The threshold for surviving the motion to dismiss does not rise to th......
  • Robar v. Vill. of Potsdam Bd. of Trs., 8:20-CV-0972 (LEK/DJS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • September 21, 2020
    ...to serve a significant governmental interest, [and] leave open ample alternatives for communication[.]" Lusk v. Vill. of Cold Spring, 475 F.3d 480, 493 (2d Cir. 2007) (internal quotation marks and alterations omitted). These requirements are conjunctive, and the failure to meet any one of t......
  • M.B. ex rel. Martin v. Liverpool Central School, No. 5:04-CV-1255.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • March 30, 2007
    ...on official permission — a Parks Department permit — they do constitute a `prior restraint' on speech."); Lusk v. Village of Cold Spring, 475 F.3d 480, 485 (2d Cir.2007) ("A law requiring prior administrative approval of speech, falls within the prior restraint Plaintiffs contend, that KFA-......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT