Modjeska Sign Studios, Inc. v. Berle

• Court: New York Supreme Court
• Writing for the Court: HAROLD J. HUGHES
• Citation: Modjeska Sign Studios, Inc. v. Berle, 386 N.Y.S.2d 765, 87 Misc.2d 600 (N.Y. Sup. Ct. 1976)
• Decision Date: 04 August 1976
• Parties: MODJESKA SIGN STUDIOS, INC., Plaintiff, v. Peter A. A. BERLE, Individually, and as Commissioner of the Department of Environmental Conservation of the State of New York, Defendant.

Page 765

386 N.Y.S.2d 765

87 Misc.2d 600

MODJESKA SIGN STUDIOS, INC., Plaintiff, v. Peter A. A. BERLE, Individually, and as Commissioner of the Department of Environmental Conservation of the State of New York, Defendant.

Supreme Court, Special Term, Albany County.

Aug. 4, 1976.

Hancock, Estabrook, Ryan, Shove & Hust, Syracuse, for plaintiff (Carl W. Peterson, Jr., Syracuse, of counsel).

Louis J. Lefkowitz, Atty. Gen., for defendant (Howard A. Fromer and Stanley Fishman, Albany, of counsel).

Jaeckle, Fleischmann & Mugel, Albany, For proposed intervenor Outdoor Advertising Assn. of New York (Adelbert Fleischmann and Henry W. Killeen, III, Buffalo, of counsel).

HAROLD J. HUGHES, Justice.

Plaintiff has moved for a preliminary injunction restraining defendant from enforcing section 9--0305 of the Environmental Conservation Law which regulates the use of advertising signs in the Catskill Park. The motion was brought on by an order to show cause which temporarily restrained the enforcement of this statute pending determination of the motion. Defendant has cross-moved for an order dismissing the complaint and has requested that the motion be treated as one for summary judgment pursuant to subdivision (c) of CPLR 3211. Finally, one Charles A. Dale, Jr., president of the Outdoor Advertising Association of New York, has moved to intervene as an additional party plaintiff.

The essential facts do not appear to be in dispute. Plaintiff is the owner of approximately 97 outdoor advertising signs located in the Catskill Park, all of which were erected prior to the enactment of section 9--0305 of the Environmental Conservation Law. Apparently, over 95 per cent of these signs are located within 660 feet of various Federally-aided primary highways located in the Catskill Park.

Section 9--0305 prohibits the erection of advertising signs or structures within the Catskill and Adirondack Parks, except under written permit from the Department of Environmental Conservation. It provides that signs within the Catskill Park existing prior to May 26, 1969, the date when the section was made applicable to the Catskill Park, may continue to be maintained without a permit until January 1, 1976. The parties agree that plaintiff's signs are not eligible for permits under rules promulgated by the Department of Environmental Conservation (see 6 NYCRR Part 195), and, hence, on January 1, 1976 the signs were subject to removal.

Plaintiff commenced this action seeking: (i) a declaratory judgment that section 9--0305 of the Environmental Conservation Law is unconstitutional on several grounds including that it requires the removal of the advertising signs without just compensation; (ii) a declaratory judgment that section 88 of the Highway Law requires payment of just compensation for the removal of those signs that are located within 660 feet of any interstate or Federally-aided primary highways; and (iii) a permanent injunction preventing defendant from removing plaintiff's signs without paying just compensation.

Before addressing plaintiff's constitutional arguments, let us turn to plaintiff's contention that section 88 of the Highway Law requires payment of just compensation for the removal of the majority of plaintiff's signs which are located within 660 feet of Federally-aided primary highways running through the Catskill Park.

Section 88 was enacted to implement the Federal Highway Beautification Act (L.1968, ch. 581, § 1). Subdivision 7 thereof provides that compensation is to be paid for the taking of certain outdoor advertising signs and displays. Basically, compensation is to be paid for those signs that were lawfully in existence at the time they became subject to the provisions of section 88. Section 88 was enacted in 1968 and became effective on May 10, 1969.

Section 9--0305 of the Environmental Conservation Law, which prohibits the erection of advertising signs in the Catskill Park without a permit, is silent with respect to whether compensation must be paid for the removal of pre-existing signs which are not eligible to receive permits. Assuming for purposes of this motion that virtually all of plaintiff's signs would qualify for the payment of compensation under the provisions of section 88 of the Highway Law, the issue presented is whether the provisions of section 9--0305 of the Environmental Conservation Law require a different result.

Section 88 of the Highway Law was enacted by chapter 581 of the Laws of 1968. As indicated above, subdivision 7 of this section explicitly provides for the payment of compensation for the taking of certain pre-existing advertising signs. Section 9--0305 was made applicable to the advertising signs in the Catskill Park by chapter 1052 of the Laws of 1969, and makes no mention of the payment of compensation. Chapter 1052, in fact, provided for an amortization period to be fixed individually for each pre-existing advertising sign in the Catskill Park. This would appear to clearly show a legislative intent to provide an amortization period as an alternative to the payment of compensation for pre-existing advertising signs in the Catskill Park. Chapter 392 of the Laws of 1970 further amended this section to provide a fixed amortization period of approximately 6 1/2 years rather than the original, individually determined, amortization periods. This would appear to further strengthen the conclusion that the Legislature specifically considered the issue of compensation for the removal of pre-existing signs in the Catskill Park and concluded that an amortization period rather than monetary compensation was to be provided. This conclusion is supported by language in the decision of the Appellate Division, Fourth Department in Rochester Poster Adv. Co. v. Town of Brighton, 49 A.D.2d 273, 276, 374 N.Y.S.2d 510, 513:

'. . . the enactment by the Legislature of section 9--0305 of the Environmental Conservation Law--limiting the continuance of nonaccessory signs without compensation--. . .'

While the decision in Rochester Poster Adv. Co. did not involve the construction of section 9--0305, the Appellate Division did specifically consider the effect of section 88 of the Highway Law in a similar situation and the quoted language indicates that the Court implicitly construed section 9--0305 as precluding the payment of monetary compensation.

The court finds, then, that section 9--0305 does not require the payment of compensation for the removal of advertising signs for which compensation would otherwise be required by section 88 of the Highway Law. Plaintiff's argument that this conclusion means that under the provisions of the Federal Highway Beautification Act (U.S.Code, tit. 23 §§ 131, 136, 319) this will require a ten per cent reduction in Federal highway funds payable to the State is irrelevant. For even if plaintiff's analysis of the effect of the court's construction of the pertinent statutory provisions on the amount of Federal aid is correct, that cannot, of course, change the meaning of the language that the Legislature has enacted.

Turning now to the constitutional objections that have been raised, plaintiff first contends that section 9--0305 violates the Fifth and Fourteenth Amendments of the United States Constitution and section 7 (subd. (a)) of article I of the State Constitution which prohibit the taking of property by the State without the payment of just compensation. It is clear, however, that the State may regulate the erection and maintenance of outdoor advertising under the police power (see, e.g., Railway Express v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533; People v. Goodman, 31 N.Y.2d 262, 338 N.Y.S.2d 97, 290 N.E.2d 139; and 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). In fact, the predecessor to present section 9--0305 was upheld as a valid exercise of the police power many years ago by the Appellate Division, Third Department, in People v. Sterling, 257 App.Div. 560, 13 N.Y.S.2d 574. The opinion in a subsequent appeal involving the same parties implied that the statute could not be sustained as an exercise of the police power for aesthetic considerations alone, although the court found it unnecessary to decide that constitutional issue (People v. Sterling, 267 App.Div. 9, 45 N.Y.S.2d 39). Subsequent decisions have resolved that issue, and it is now well settled that outdoor advertising signs may be regulated poursuant to the police power for aesthetic purposes alone (see, e.g., People v. Goodman 31 N.Y.2d 262, 338 N.Y.S.2d 97, 290 N.E.2d 139, Supra; People v. Stover, 12 N.Y.2d 462, 240 N.Y.S.2d 734, 191 N.E.2d 272, and Matter of Cromwell v. Ferrier, 19 N.Y.2d 263, 279 N.Y.S.2d 22, 225 N.E.2d 749). Many statements have been written explaining this result in terms of the importance of aesthetic values to society, but perhaps no one has expressed this view more memorably than Chief Judge Pound in what has been described as an 'oratorical flight':

'Beauty may not be queen but she is not an outcast beyond the pale of protection or respect. She may at least shelter herself under the wing of safety, morality or decency.' (People v. Sterling, 267 App.Div. 9, 12, 45 N.Y.S.2d 39, 41, Supra, quoting Perlmutter v. Greene, 259 N.Y. 327, 332, 182 N.E. 5, 6).

Of course, as with every enactment under the police power, the means adopted in the statute in question must be reasonably related to the community policy sought to be implement and must not be unduly oppressive (Matter of Tyson, Inc. v. Tyler, 24 N.Y.2d 671, 301 N.Y.S.2d 602, 249 N.E.2d 453, People v. Bunis, 9 N.Y.2d 1, 210 N.Y.S.2d 505, 172 N.E.2d 273, and People v. Munoz, 9 N.Y.2d 51, 211 N.Y.S.2d 146, 172 N.E.2d 535). 'The exercise of the police power should not extend to every artistic conformity or nonconformity. Rather, what is involved are those aesthetic considerations which bear substantially on the economic, social and cultural patterns of a...