Nichols Media Group, LLC. v. Town of Babylon
| Decision Date | 14 April 2005 |
| Docket Number | No. CV 02-2334.,No. CV 02-2332.,CV 02-2332.,CV 02-2334. |
| Parties | NICHOLS MEDIA GROUP, LLC, Plaintiff, v. THE TOWN OF BABYLON, Defendant. Nichols Media Group, LLC, Plaintiff, v. The Town of Islip Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Wilder & Linneball, LLP, Buffalo, NY, by J. Joseph Wilder, Christopher S. Nickson, for Plaintiff.
Law Offices of Mark A. Cuthbertson, LLP, Huntington, NY, by Mark A. Cuthbertson, for Town of Babylon.
Vincent J. Messina, Jr., Islip Town Attorney, Richard Hoffman, Assistant Town Attorney, Islip, NY, for Town of Islip.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff, Nichols Media Group, LLC ("Nichols" or "Plaintiff") commenced these actions challenging the constitutionality of the sign ordinances of the towns of Babylon and Islip, New York. The cases were tried together before the court on January 3 and 4, 2005. Having reviewed and considered the parties' post-trial submissions, this constitutes the court's Findings of Fact and Conclusions of Law.
1. Nichols Media ("Nichols" or "Plaintiff") is a New York corporation that is engaged in the outdoor sign and advertising business.
2. Plaintiff's business involves locating and leasing sites for the erection of billboard advertising. Nichols negotiates ground leases, easements or purchases of property for this purpose. Once Nichols has obtained the right to use real property, it erects billboards on that property.
3. Billboards erected by Nichols fall generally into three size categories. Those categories are billboards that are known as "bulletins" which are 13 by 48 feet, "poster panels" which are 12 by 25 feet and "eight sheets" which are 6 by 12 feet in size. Usually such billboards bear advertising messages on both sides. While it is possible that the billboards erected might advertise for services available on the premises where the billboard is located, it is agreed that the billboards sought to be erected by Nichols in this matter would include those that advertise for products and services not available on the site where the billboard would be located.
4. Billboards erected by Nichols include those conveying purely commercial messages as well as those devoted to non-commercial speech on matters of public importance.
5. The Town of Babylon ("Babylon") is located in Suffolk County, New York. Babylon has enacted a comprehensive local ordinance, the provisions of which are detailed below, governing the erection of signs within the town (the "Babylon Ordinance").
6. The Town of Islip ("Islip") is located in Suffolk County, New York. Islip has enacted a comprehensive local ordinance, the provisions of which are detailed below, governing the erection of signs within the town (the "Islip Ordinance").
7. When referring to both Babylon and Islip herein the court will refer to defendants collectively as the "Towns." When referring to the ordinances of both Babylon and Islip, the court will refer collectively to the "Ordinances."
8. The Babylon Ordinance contains a "Statement of Purpose" which sets forth Babylon's reasons for passing legislation regarding, inter alia, the size and placement of signs. This statement appears in section 213-386 of the Babylon Ordinance and expresses the collective legislative judgment of its Town Board that the "quality of life" of Babylon residents "is substantially effected by the location, height, size, construction and general design" of signs. Signs existing "in harmony" with the community are stated to serve the purpose of "conveying information while not detracting from the public health, safety and welfare." On the other hand, signs that are "misplaced, disproportionate to the surrounding environment, in excessive proliferation or containing excessive lighting or other displaced fixtures," are stated to exist in "disharmony to the environment of the town and constitute egregious examples of ugliness, distraction and deterioration ... degrade the aesthetic quality of the environment; detract from the natural and scenic beauty, as well as the character and order" of the town. Further, such signs are stated to "cause diminution in property values and do provide visual distractions and obstruction to passing motorists which can cause or contribute to traffic accidents." Babylon Code Art. XXXIII § 213-386.
9. To summarize, Babylon has identified the following factors as reasons for the regulation of signs within its borders: (1) aesthetics, (2) property values and (3) traffic safety.
10. The Babylon Ordinance contains a variety of provisions regarding the construction, design and placement of signs; the majority of which are not relevant here. Such provisions include, for example, a ban on the erection of signs that conflict with or can be mistaken for vehicular or traffic signals, and a provision prohibiting the placement of signs within the right-of-way of a public street.
11. Provisions of the Babylon Ordinance that were touched upon by trial testimony were general provisions regarding sign size, portability and illumination. Also the subject of trial testimony was: (1) the ban on signs advertising businesses or commercial interests that are not connected with the property upon which the sign is located; (2) the ban on portable signs; (3) the ban on obscene signs; (4) the exemption from regulation of governmental signs; (5) the allowance of non-commercial copy in lieu of otherwise authorized copy; (6) a provision regarding the placement of signs in a specific district known as the "Commercial Overlay District"; (6) permit fees and (7) a severability clause. Testimony regarding each of these issues is discussed further below.
12. The ban that the Babylon Ordinance places on signs advertising businesses or commercial interests not connected with the property where the sign is located appears in section 213-393 and states that no sign may be used to call attention to, or in any way advertise, any business, product or service that is neither performed on nor connected with the property or building on which the sign appears. This section operates as a ban on what is known as "off-site" advertising, i.e., the advertising of products, information or services available at any location other than where the sign is located.
13. The ban that the Babylon Ordinance places on portable signs appears in section 213-392 and states that portable signs standing on the ground or attached to trailers are prohibited. That section further states that a vehicle or trailer may not be used primarily as a sign or structural support for a sign.
14. The ban that the Babylon Ordinance places on obscene signs appears in section 213-394. That provision prohibits signs that are "in whole or in part, obscene or pornographic in character."
15. Section 213-387 of the Babylon Ordinance defines the term "governmental sign" as "any sign erected and maintained by or at the direction of any governmental body, organization, agency or corporation." The Babylon Ordinance's definition of regulated "signs" specifically exempts from its reach "governmental signs."
16. Section 213-415 of the Babylon Ordinance, added after earlier litigation involving a predecessor ordinance, allows for the substitution of non-commercial copy in lieu of otherwise authorized copy.
17. The permitting process, including fees and information to be submitted, appears in section 213-398 of the Babylon Ordinance. Permits are issued by the Town's Building Inspector who approves applications based upon the "structural safety" of the proposed sign which is to be in conformance with "recognized engineering standards."
18. Although Section 213-393 of the Babylon Ordinance bans off-site advertising, Article XXXIV of the Town Code ("Article 34") carves out a limited exception to this ban. This provision applies only to that area in Babylon known as the "Commercial Overlay District." This district was created in 2000 and creates specific zoning requirements for the character of this limited area. For example, there are specific heights allowed for office buildings, motels and hotels within this district. Those heights vary depending upon the proximity to certain roads, residential areas and cemeteries.
19. Relevant here is that part of Article 34 providing for off-premises advertising under certain circumstances. Section 213-418.14 of Article 34 states that off-premises advertising is to be allowed in the Commercial Overlay District by special exception that may be granted by the Babylon Town Board. Such an exception can be granted only if four conditions are met: (1) the proposed sign must be for a business, product or service located within the Commercial Overlay District; (2) the sign must be otherwise permitted by the Town's sign ordinance; (3) the proposed sign must create no increase in the allowable number or size of signs and (4) there is demonstrated a special need for the sign because the business the sign calls attention to is "isolated and/or not visible from a main thoroughfare, and because such location substantially and detrimentally affects the viability of that business." Babylon Town Code Art. XXXIV § 418.14(B).
20. Section 213-416 of the Babylon Ordinance is its severability clause which states that if any portion of the ordinance is found to be in conflict with any law, that provision may be severed.
21. The Islip Ordinance contains a statement of purpose similar to that of the Babylon Ordinance. Specifically, Section 68-394 of the Islip Ordinance states that the purpose of sign regulation in the town is to: (1) protect the safety of the public; (2) enhance the aesthetic environment of the town; (3) reduce motorist distraction; (4) provide for uniform design standards; (5) encourage excellence in...
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