Marin v. Town of Se.

• Decision Date: 30 September 2015
• Docket Number: No. 14–CV–2094 (KMK).,14–CV–2094 (KMK).
• Citation: 136 F.Supp.3d 548
• Parties: Carla L. MARIN, Plaintiff, v. TOWN OF SOUTHEAST, Defendant.
• Court: U.S. District Court — Southern District of New York

136 F.Supp.3d 548

Carla L. MARIN, Plaintiff,

v.TOWN OF SOUTHEAST, Defendant.

No. 14–CV–2094 (KMK).

United States District Court, S.D. New York.

Signed Sept. 30, 2015.

Stephen Bergstein, Esq., Bergstein & Ulrich, LLP, Chester, NY, for Plaintiff.

James A. Randazzo, Esq., Denise M. Cossu, Esq., Gaines, Novick, Ponzini, Cossu & Venditti, LLP, White Plains, NY, for Defendant.

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

PlaintiffCarla Marin("Plaintiff"), brings this Action against Defendant Town of Southeast("Defendant" or "Town"), challenging the constitutionality of certain Town sign ordinances on First Amendment grounds.Plaintiff moves for summary judgment "on the constitutionality of [D]efendant's sign laws from 2011 and 2013 as well as the current ordinance, revised in 2014," to the extent that they regulate political campaign signs, on First Amendment grounds.(Pl.'s Mem. of Law in Supp. of Mot. for Summ. J.("Pl.'s Mem.") 1 (Dkt. No. 45).)Plaintiff"also seeks to enjoin enforcement of the 2014 ordinance."(Id. )Defendant cross-moves for summary judgment on all of Plaintiff's claims.For the forgoing reasons, Plaintiff's Motion is granted, and Defendant's Motion is granted in part and denied in part.

I.Background

A.Factual Background

Plaintiff is an attorney who lives in Carmel, NY, and owns property at 420–422State Route 312 in Southeast, NY.(Pl.'s Statement of Undisputed Facts Pursuant to Local Rule 56.1 ("Pl.'s 56.1")¶¶ 1–2 (Dkt. No. 44).)¹She avers that she is a member of the Putnam County Republican Committee, is "active in local politics," has posted signs on her property in support of Republican candidates, and desires to do so in the future.(Id.¶¶ 3–5;Pl.'s Aff. in Supp. of Mot. for Summ. J.("Pl.'s Aff.")¶ 2.(Dkt. No. 42).)

In 2004, the Town added a provision to Chapter 138(Zoning) of the Code of the Town of Southeast(generally, the "Code"), exempting political signs from standard permit requirements, provided that their placement did not exceed 21 days, and that they were not posted "within the public rights-of-way."(Pl.'s 56.1 ¶¶ 6–7;Def. Town of Southeast's Rule 56.1 Statement ("Def.'s 56.1")¶ 8 (Dkt. No. 49).)On June 23, 2011, the Town amended the Code (the "2011 Law") to further restrict the posting of political signs such that, to be exempted form permitting requirements, they could be posted no more than 21 days prior to the "event or proposition being advertised," had to be "removed not more than five ... days after such event has concluded," and could not "be placed within the public rights-of-way."(Pl.'s 56.1 ¶¶ 8–9(internal quotation marks omitted);see alsoAff'n of Stephen Bergstein in Supp. Of Pl.'s Mot. for Summ. J.("Bergstein Aff'n")Ex. 1("2011 Law")(Southeast, N.Y., Town Code, ch. 138, art. XII(2008))§ 138–75(A)(16);id.Ex. 2(providing text of 2011amendment)(Dkt. No. 43).)The 2011 Law did not place durational limitations on several other types of signs and markers, including historical markers, flags, directional signs, and temporary signs for roadside stands, and placed less stringent durational restrictions on temporary "for sale" signs, temporary directions signs, real estate development signs, and other similar signs.(Pl.'s 56.1 ¶¶ 9–11;2011 Law § 138–75(A).)

On September 22, 2011, Town prosecutors charged Plaintiff in Southeast Town Court with violating the 2011 Law, alleging that Plaintiff had "posted a temporary political sign on her property more than five consecutive days after a political primary" and "in the Town right-of-way."(Id.¶¶ 12, 14–15;see alsoDef.'s 56.1¶ 17; Decl. in Supp. of Def.'s Cross–Mot. and in Opp'n to Pl.'s Mot. ("Def.'s Decl.") Ex. C (charging instrument)(Dkt. No. 47).)Plaintiff was offered, but refused, an adjournment in contemplation of dismissal ("ACD"), choosing instead to move to dismiss the complaint in that action.(Def.'s 56.1 ¶¶ 18–19.)On June 1, 2013, Town JusticeGregory L. Folchetti("Justice Folchetti") dismissed Defendant's complaint "in the interests of justice,"(Pl.'s 56.1 ¶ 18), pursuant to New York Criminal Procedure Law § 170.40, finding that the violation was of " ‘relatively minimal seriousness' " such that " ‘there would be little, if any legitimate purpose for imposing sentence ... if [Plaintiff] were actually to be convicted,’ "(Def's 56.1 ¶¶ 21–26(quoting Def.'s Decl. Ex. E (Justice Folchetti Decision)).)Plaintiff avers that, since this time, she has "refrained from posting campaign signs at her property" for fear that she would be charged with violating the relevant provisions of the Code.(Pl.'s56.1 ¶¶ 16–17, 25–26;see alsoPl.'sAff. ¶¶ 5–6.)Plaintiff also claims that she does not otherwise have the resources to support political candidates in any other way, aside from volunteering her time.(Pl.'sAff. ¶ 2.)

In January 2013, via Local LawNo. 2 of 2013, the Town amended the Code to further restrict political signs such that, to be exempt from permitting requirements, there could be "no more than one sign per event or candidate ... per parcel," and such signs had to be "no less than 15 feet from the edge of the pavement and/or roadbed."(Pl.'s 56.1 ¶¶ 19–21(internal quotation marks omitted);Bergstein Aff'nExs. 5–7(collectively, the "2013 Law")(Southeast, N.Y., Town Code, ch. 138, art. XII(2013))§ 138–75(A)(16);see alsoid.Exs. 5–6(providing text of January 2013 amendment).)The stated purpose of the amendment was to "promote and protect the health, welfare, and safety and the community character of the Town of Southeast," to "protect property values, create a more attractive economic and business climate, ... preserve the scenic and natural landscape," and to "reduce ... distractions ... obstructions [,]" and "hazards."(2013 Law § 138–72(A)).)In March of that same year, the Town also amended the Code (creating the "2013 Law") via Local LawNo. 4 of 2013, refining the temporal restriction on political signs to provide that such signs "shall not be placed more than 21 days prior to the primary, general [,] or special election or referendum or other event or proposition being advertised and shall be removed not more than five (5) days after such event has been held or concluded."(Pl.'s 56.1 ¶ 22;Bergstein Aff'nEx. 7(providing text of March 2013 amendment).)As with prior versions of the Code, the 2013 Law did not place all of the same restrictions on—or, in some cases, completely exempted from restrictions—several other types of signs and markers, including historical markers, flags, directional signs, temporary signs for roadside stands, garage sales, private auctions, holiday decorations, and other similar signs.(Pl.'s 56.1 ¶ 23;2013 Law § 138–75(A)).)Moreover, Plaintiff avers that, after passage of the 2013 Law, she refrained from posting political signs for the 2013 and 2014 elections, for fear of prosecution.(Pl.'s 56.1 ¶¶ 25–26;Pl.'sAff. ¶¶ 8–10.)

On October 23 2014, via Local Law 2 of 2014, the Town again amended the Code (the "2014 Law") to, outside the context of permitting requirements, generally restrict all "[t]emporary signs," defined as "any sign intended to be displayed for a limited time and capable of being viewed from any public right of way, parking area[,] or neighboring property" and "for a single activity or event."Southeast, N.Y., Town Code, ch. 138, art. XII("2014 Law")§ 138–73(defining temporary sign).(Def.'s 56.1 ¶ 39;see alsoBergstein Aff'nEx. 9(providing text of 2014amendment)).²Restrictions on temporary signs include that they

(a) shall not be placed in a public right of way (Placement of a temporary sign shall not be less than (15) feet from the edge of a curb, paved or unpaved roadway, and/or the private property tax parcel lot line, whichever is less).

(b) shall not be placed on any business, industrial or residential private property tax parcel more than (21) days prior to a scheduled activity or event nor more than (5) days after the scheduled activity or event.

(c) shall not be attached to fences, trees, utility poles, rocks[,] or other parts of a natural landscape, nor shall they be placed in a position that will obstruct or impair in any manner, or create a hazard or disturbance to the health, safety[,] and welfare of the general public.

2014 Law §§ 138–75(C)(2), (8).(See alsoDef.'s 56.1¶¶ 40–42.)The 2014 Law also omits the category of "political signs" and does not directly refer to political speech at all.(Def.'s 56.1¶¶ 36, 43;Bergstein Aff'nEx. 9(noting that the reference to political signs was "deleted in its entirety")); see generally2014 Law.Nonetheless, many signs are exempt from these restrictions, or are subject to less stringent restrictions, including contractor and construction signs, portable business signs, "for sale" signs, holiday decorations, road signs advertising agricultural produce, and others.See2014 Law § 138–75(A).(See alsoPl.'s 56.1¶¶ 29–33.)Political signs are not similarly exempt.³

B.Procedural Background

Plaintiff filed her Complaint on March 25, 2014.(Dkt. No. 1.)On August 5, 2014, the Court held a pre-motion conference, (see Dkt. (minute entry for Aug. 5, 2014)), at which "the Town advised the Court that ... it would address the alleged constitutional infirmities of the 2013[Code] and amend it,"(Def.'s 56.1 ¶ 6).The Court granted the Parties' proposed briefing schedule for motions for summary judgment on September 5, 2014.(SeeDkt. No. 15.)On September 10, 2014, with Defendant's consent, Plaintiff filed her First Amended Complaint.(Dkt. No. 17;see alsoDkt. No. 16(Stipulation).)The Court thereafter approved a revised briefing schedule, (Dkt. No. 20), pursuant to which Plaintiff filed a Motion for Summary Judgment and associated memoranda on November 3, 2014, (Dkt.Nos. 21–25), and Defendant filed a Cross–Motion for Summary Judgment and associated memoranda on January 15, 2015, (Dkt.Nos. 30–34).Thereafter, with Defendant's consent, Plaintiff filed a Second...