People v. Artrol Corp.

• Decision Date: 30 October 1971
• Citation: 325 N.Y.S.2d 800,67 Misc.2d 1087
• Parties: PEOPLE of the State of New York, Plaintiff, v. ARTROL CORP. et al., Defendants.
• Court: New York Villiage Court

Page 800

325 N.Y.S.2d 800

67 Misc.2d 1087

PEOPLE of the State of New York, Plaintiff, v. ARTROL CORP. et al., Defendants.

Village Justice Court of Ocean Beach, Suffolk County.

Oct. 30, 1971.

[67 Misc.2d 1088] Noah L. Braunstein, Village Prosecutor, for the People.

Flower & Plotka by Richard F. Plotka, Bay Shore, for defendants.

DECISION

BENJAMIN WM. MEHLMAN, Village Justice:

These are prosecutions for violations of Article II, Sec. 4 of the Ordinances of the Village of Ocean Beach, adopted September 23, 1967, which states:

'Section 4. Signs within the Inc. Village of Ocean Beach shall not be illuminated and shall be limited in size to 1 square foot in area, including signs utilized for advertising the sale or rental of property which may be placed only on property advertised for sale or rental. This size limitation shall not apply to existing commercial or business uses for which the signs may not exceed four square feet in area and may be placed only on the property on which the commercial or business use occurs. Nonconforming signs may continue such nonconformity until they are destroyed, structurally altered, reconstructed, changed, or moved, but the period of such nonconformity may not exceed 2 years from the date of the enactment of this ordinance.'

Essentially the defendants' contentions are these: (1) the ordinance is unconstitutional because no public benefit has been shown; (2) the ordinance deprives the owners of a property right in the signs; (3) there is no proof that the individual defendants owned or maintained the signs in question; and (4) the ordinance is discriminatory.

The three cases were tried together. At the trial each of the defendants conceded that on the date alleged in each Information each of the respective properties had a sign or signs on top of, above, or on the roof, which exceeded four square feet in area and that some were illuminated. Defendant McGann conceded the existence of three illuminated sings on the side of the building and defendant Koller conceded an illuminated sing is in the window of the premises.

There is no question of proper, procedural enactment of the ordinance. Proofs of notice, public hearing and publication were not disputed.

Section 89, subdivision 47 of the Village Law authorizes a village to regulate and control the erection, construction and use in, upon and near streets and other public places of billboards and other advertising media. Subdivision 59 of that section permits a village to enact ordinances, not inconsistent with existing law, which shall be deemed expedient or desirable for the good government of the village and other purposes within its police power.

The ordinance having been properly enacted both procedurally and pursuant to statutory authority, there is a presumption of its legality and constitutionality. (People v. Pagnotta, 25 N.Y.2d 333, 337, 305 N.Y.S.2d 484, 487, 253 N.E.2d 202, 205; Matter of Van Berkel v. Power, 16 N.Y.2d 37, 40, 261 N.Y.S.2d 876, 878, 209 N.E.2d 539, 540; Shepard v. Village of Skaneateles, 300 N.Y. 115, 89 N.E.2d 619) with which this Court should not readily interfere. 'The courts have frequently reiterated the rule that local authorities entrusted with the regulation of such matters and not the courts are primarily the judges of the necessities of local situations and the courts may only interfere with laws or ordinances passed or regulations adopted in pursuance of the police power where they are so arbitrary as to be palpably and unmistakably in excess of any reasonable exercise of the authority conferred'. (Boord v. Wallander, 195 Misc. 557, 559, 89 N.Y.S.2d 796 800, mod. 277 App.Div. 253, 98 N.Y.S.2d 1, aff'd. 302 N.Y. 890, 100 N.E.2d 177). Thus the defendants' basic contentions will be considered.

Public Benefit--Power Enact the Ordinance

In 1963 the Court of Appeals established the rule that, no matter what the law had been previously, aesthetic considerations may be taken into account by the legislative body in enacting laws. Judge, now Chief Judge Fuld, stated: 'Once it be conceded that aesthetics is a valid subject of legislative concern, the conclusion seems inescapable that reasonable legislation designed to promote that end is a valid and permissible exercise of the police power. * * * And, indeed, this view finds support in an ever increasing number of cases from other jurisdictions which recognize that aesthetic considerations alone may warrant an exercise of the police power. (citing cases.)' People v. Stover, 12 N.Y.2d 462, 467, 240 N.Y.S.2d 734, 738, 191 N.E.2d 272, 275.

A number of decisions have specifically upheld ordinances regulating the use of sings. Most persuasive is Village of Larchmont v. Sutton, 30 Misc.2d 245, 217 N.Y.S.2d 929. The ordinance there provides that in residential districts no signs may be maintained except those customarily incident to churches, libraries or public museums, municipal buildings and parks and playgrounds, and professional name plates or owners' name signs not exceeding one square foot in area. In retail business districts signs may be maintained only on the face of the building. Nonconforming signs existing at the time of adoption of the ordinance were to be removed as of a date 15 months after its effective date.

Mr. Justice Hopkins, after reviewing the provisions of the Village Law empowering a village to regulate the erection and use of signs, concluded that the Legislature's delegation of those powers authorized the adoption of the ordinance, that the ordinance was valid, the owners of the sings had no vested rights therein, and that the 15 months period for removal or change was a reasonable regulation. (cf. Matter of Harbison v. City of Buffalo, 4 N.Y.2d 553, 562, 176 N.Y.S.2d 598, 604, 152 N.E.2d 42, 46).

Similar conclusions were reached in Village of Larchmont v. Levine, Sup., 225 N.Y.S.2d 452 where the ordinance provided that signs may be placed only on the front or face of a building in a retail business zone. A two year period was established for the removal of nonconforming signs.

The court there held that aestheticism may be properly considered in enacting sign controls.

A Village can provide a sufficient period of nonconformity at the end of which the use must cease. (Matter of Harbison v. City of Buffalo, 4 N.Y.2d 553, 562, 176 N.Y.S.2d 598, 604, 152 N.E.2d 42, 46). In Village of Larchmont v. Sutton (supra) 15 months was held to be a reasonable period. Accordingly, the two years period of the instant ordinance is held to be reasonable and the ordinance therefore is a proper exercise of the police power enacted for a public benefit.

There is another factor which justifies the enactment of the ordinance. The Village of Ocean Beach is within the territorial limits of the Fire Island National Seashore created by Act of Congress (P.L. 88--587, 88th Congress, S. 1365, September 11, 1964, 78 Stat. 928). Sec. 3(a) of that Act empowers the Secretary of the Interior to issue regulations for zoning ordinances and to approve any zoning ordinance or any amendment to any approved zoning ordinance submitted to him that...