Modjeska Sign Studios, Inc. v. Berle

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MAHONEY
• Citation: Modjeska Sign Studios, Inc. v. Berle, 55 A.D.2d 340, 390 N.Y.S.2d 945 (N.Y. App. Div. 1977)
• Decision Date: 20 January 1977
• Parties: , 9 ERC 1765, 7 Envtl. L. Rep. 20,259 MODJESKA SIGN STUDIOS, INC., Appellant, v. Peter A. A. BERLE, as Commissioner of the Department of EnvironmentalConservation of the State of New York, Respondent, and Charles A. Dale, Jr., as President and on behalf of the Outdoor AdvertisingAssociation of New York, an Unincorporated Association, ProposedIntervenor-Plaintiff-Appellant.

Page 945

390 N.Y.S.2d 945

55 A.D.2d 340, 9 ERC 1765, 7 Envtl.

L. Rep. 20,259

MODJESKA SIGN STUDIOS, INC., Appellant, v. Peter A. A. BERLE, as Commissioner of the Department of EnvironmentalConservation of the State of New York, Respondent and Charles A. Dale, Jr., as President and on behalf of the Outdoor AdvertisingAssociation of New York, an Unincorporated Association ProposedIntervenor-Plaintiff-Appellant.

Supreme Court, Appellate Division, Third Department.

Jan. 20, 1977.

Hancock, Estabrook, Ryan, Shove & Hust, Syracuse (Carl W. Peterson, Jr., Syracuse, of counsel), for Modjeska Sign Studios, appellant.

Louis J. Lefkowitz, Atty. Gen., Albany (Stanley Fishman, Susan M. Tatro and Ruth Kessler Toch, Albany, of counsel), for respondent.

Jaeckle, Fleischmann & Mugel, Buffalo (Henry W. Killeen, III, Buffalo, of counsel), for Charles A. Dale, Jr., proposed intervenor-plaintiff-appellant.

Before KOREMAN, P.J., and GREENBLOTT, MAHONEY, MAIN and HERLIHY, JJ.

MAHONEY, Justice.

Plaintiff is the owner of approximately 96 outdoor advertising signs over 95% Of which are located within 660 feet of federally-aided highways passing through the Catskill Park. Section 9--0305 of the Environmental Conservation Law prohibits the erection and/or maintenance of advertising signs and structures within the Catskill and Adirondack Parks without a written permit of the Department of Environmental Conservation but provides that all such signs within the Catskill Park as of May 26, 1969 may be continued without permit until January 1, 1976. All parties agree that all 96 of plaintiff's signs are ineligible for permits under rules promulgated by the Department (6 NYCRR 195) and, accordingly, on January 1, 1976 were subject to removal.

Plaintiff commenced this action almost six years subsequent to the effective date of the predecessor to section 9--0305 and only two weeks before the date written permission from the Department was a requisite to prevent sign removal. Thereafter, plaintiff moved for a preliminary injunction restraining the enforcement of section 9--0305 of the Environmental Conservati Law on the ground that it is unconstitutional, alleging, Inter alia, that section 88 of the Highway Law requires payment of just compensation for the removal of signs located within 660 feet of federally-aided roads. Defendant cross-moved for an order dismissing the complaint.

We turn first to plaintiff's contention that section 88 of the Highway Law requires payment of just compensation for the removal of all signs in the Catskill Park located within 660 feet of federally-aided highways. While it is true that the Federal Highway Beautification Act of 1965 (U.S.Code, tit. 23, §§ 131, 136, 319) declared it to be a national policy that states should seek to establish control of outdoor advertising by prohibiting erection and maintenance of outdoor advertising in noncommercial areas, and, further, that any taking of such signs or structures by the states should result in the payment of compensation (U.S.Code, tit. 23, § 131, subd. (g)), it is not true that compliance by the states was mandatory. In fact, the Beautification Act provides that if a state does not make legislative provision for such control and payment, it shall lose 10% Of the federal highway funds which would otherwise be apportioned to such state. Therefore, since New York did enact section 88 of the Highway Law in response to the previously passed Beautification Act, the question posited is whether section 88 committed this State to a program of compensation for dismantled advertising signs, the Beautification Act and section 88 of the Highway Law being statutes In pari materia, or if New York by enacting section 9--0305 of the Environmental Conservation Law can, and, in fact, did choose a different legislative approach in providing an amortization period rather than payment of compensation. Posed differently, did this State by passing section 88 of the Highway Law mandating the payment of compensation for commercial sign discontinuance in the Catskill Park, in response to the Federal Act, relinquish its right to act in the same area pursuant to its police powers? In our view, the State did not. While we find no New York case on point, the case of Markham Advertising Co. v. State, 73 Wash.2d 405, 439 P.2d 248, app. dsmd. 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 512 is remarkedly similar to the facts herein. In Markham, advertising companies challenged a state act providing for the regulation of outdoor signs, which Act provided for amortization rather than compensation, on the ground that the Beautification Act of 1965 compelled the payment of compensation. In rejecting this contention the Markham court stated, 'If Congress had intended the provisions of 23 U.S.C. § 131 * * * to be mandatory on the states, there would have been no need to attach a monetary penalty to noncompliance' (Id. at 257). We agree.

A reading of section 9--0305 readily reveals an aesthetic purpose to conserve the natural beauty of the Catskill Park and to preserve and regulate the Park for the public use and general welfare of the peoples of this State (People v. Goodman, 31 N.Y.2d 262, 338 N.Y.S.2d 97, 290 N.E.2d 139). Since the thrust of the subject statute is the accomplishment of legitimate goals for public purposes, it is regulatory not prohibitory. It does not bar outdoor advertising. It requires a permit, thus insuring regulatory control of a State asset. That this type of outdoor sign regulation is a proper and valid exercise of the police power has ample support in the decisional law (People v. Goodman, supra; Whitmier & Ferris Co. v. State of New York, 20 N.Y.2d 413, 284 N.Y.S.2d 313, 230 N.E.2d 904; Terrace Hotel Co. v. State of New York, 19 N.Y.2d 526, 281 N.Y.S.2d 34, 227 N.E.2d 846; Matter of Cromwell v. Ferrier, 19 N.Y.2d 263, 279 N.Y.S.2d 22, 225 N.E.2d 749; New York State Thruway Auth. v. Ashley Motor Court, 10 N.Y.2d 151, 218 N.Y.S.2d 640, 176 N.E.2d 566; Rochester Poster Adv. Co. v. Town of Brighton, 49 A.D.2d 273, 374 N.Y.S.2d 510). However, legislation whose legitimacy is measured against an aesthetic purpose must meet the test of reasonableness. That test, in turn, can be evaluated in the setting of its implementation. The Adirondack and Catskill State Parks are constitutionally protected preserves (N.Y. Const., art. XIV) wherein special material and cultural values exist which are deserving of preservation for future generations. Thus, objects, such as outdoor advertising structures, that offend the eye and detract from the natural beauty of the setting are legitimate targets of legislation requiring their removal providing the totality of the means employed is reasonable (People v. Goodman, supra). Plaintiff's challenge to the means employed herein embodies the complaint that to take such structures without monetary compensation to alleviate all economic loss is an unconstitutional taking of private property in violation of the restraints of the Fifth and Fourteenth Amendments of the Federal Constitution and sections 6 and 7 of Article I of the New York State Constitution. This contention is meritless.

The Court of Appeals has consistently held that the State need not pay Any compensation where signs are regulated pursuant to the State's police power. In New York State Thruway Auth. v. Ashley Motor Court (supra) it was held that the police power extends to all the great public needs and if the means employed to regulate existing offending signs are reasonable, there can be no objection to their employment on the ground that 'the rights of private property are thereby curtailed'. Similarly, in Whitmier & Ferris Co. v. State of New York (supra) our highest court stated that offending signs abutting the Thruway could be constitutionally removed without the payment of compensation. As noted on both Ashley Motor Court and Whitmier & Ferris, billboards and advertising signs are of little value and small use unless great...