Rochester Poster Advertising Co., Inc. v. Town of Brighton

• Decision Date: 06 November 1975
• Citation: 374 N.Y.S.2d 510,49 A.D.2d 273
• Parties: ROCHESTER POSTER ADVERTISING CO., INC., Respondent, v. TOWN OF BRIGHTON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 510

374 N.Y.S.2d 510

49 A.D.2d 273

ROCHESTER POSTER ADVERTISING CO., INC., Respondent, v. TOWN OF BRIGHTON, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Nov. 6, 1975.

Antell, Harris, Githler & Calleri, Rochester, for appellant (Charles H. Githler, II, Rochester, of counsel).

Harris, Beach & Wilcox, Rochester, for respondent (Henry W. Williams, Jr., Rochester, of counsel).

Hancock, Estabrook, Ryan, Shove & Hust, Syracuse, amicus curiae for richards 'Of Course', Inc. (Carl W. Peterson, Jr., Syracuse, of counsel).

Mazza, Williamson & Clune, Ithaca, amicus curiae for RHP, Inc. (Robert I. Williamson, Ithaca, of counsel).

De Graff, Foy, Conway & Hold-Harris, Albany, amicus curiae for Murphy Outdoor Advertising Corp. (Michael J. Cunningham, Albany, of counsel).

Donald A. Campbell, Amsterdam, amicus curiae for Adirondack Outdoor, Inc.

Jaeckle, Fleischmann & Mugel, Buffalo, amicus curiae for Whitmier & Ferris Co., Inc. (Adelbert Fleischmann & Brian J. Troy, Buffalo, of counsel).

Lawrence R. Reich, White Plains, amicus curiae for Griese Advertising-Suburban New York, Inc.

Eugene L. De Nicola, Sayville, amicus curiae for Suffolk Outdoor Advertising Co., Inc.

Before MARSH, P.J., and CARDAMONE, SIMONS, GOLDMAN and DEL VECCHIO, JJ.

OPINION

DEL VECCHIO, Justice:

Plaintiff has successfully challenged, as violative of its constitutional rights against the taking of property without due process and without just compensation, a sign and zoning ordinance of the Town of Brighton, the application of which gave plaintiff a period of 34 months during which it was permitted to maintain a non-accessory outdoor advertising billboard after adoption of the ordinance which prohibited such billboard. Although several amici briefs have been submitted addressing themselves to the question of the constitutionality of local ordinances which totally exclude billboards from a regulated area, we do not believe that this case requires or that the record presents a sufficient showing for us to reach that broad issue (See People v. Goodman, 31 N.Y.2d 262, 338 N.Y.S.2d 97, 290 N.E.2d 139; Matter of Cromwell v. Ferrier, 19 N.Y.2d 263, 279 N.Y.S.2d 22, 225 N.E.2d 749). The proof adequately demonstrates that, with respect to plaintiff's billboard, the application of the ordinances is a legitimate exercise of the police power. The legislative enactments themselves carry with them 'an exceedingly strong presumption of constitutionality' (Matter of Malpica-Orsini, 36 N.Y.2d 568, 570, 370 N.Y.S.2d 511, 514, 331 N.E.2d 486, 488). The uncontroverted evidence established that the single billboard which is the subject of this action is composed of four, interconnected panels each 12 by 25 and is located about 25 feet from the pavement of Route 15, a heavily traveled four-lane highway which is the major route for traffic going south from Rochester. The billboard location is about a half mile south of Rochester in a well developed residential and commercial area north of Henrietta and is between two points at which roads come into Route 15. The billboard, which is constructed so that two of its panels are visible to northbound traffic and two are visible to southbound traffic, is 600 feet from a traffic control signal at the junction to the north and 150 feet from a traffic control signal at the junction to the south. In addition to the foregoing proof there was testimony by a police officer with fourteen years experience on the Town of Brighton police force that the signs which make up the billboard create a traffic safety hazard by virtue of its location. In these circumstances the application of the ordinances, which now prohibit the continuance of the billboard in question, represents a permissible exercise of the police power in the protection of...