Suffolk Outdoor Advertising Co., Inc. v. Hulse

• Decision Date: 21 December 1977
• Citation: 402 N.Y.S.2d 368,43 N.Y.2d 483,373 N.E.2d 263
• Parties: , 373 N.E.2d 263, 8 Envtl. L. Rep. 20,185 SUFFOLK OUTDOOR ADVERTISING CO., INC., Respondent-Appellant, v. Theodore O. HULSE et al., constituting the Town Board of the Town of Southampton, Appellants-Respondents. COLLUM SIGNS, INC., Respondent-Appellant, v. TOWN BOARD OF the TOWN OF SOUTHAMPTON, Appellant-Respondent. Frank J. POLACEK, Jr., doing business as Behrle Outdoor Advertising, Respondent-Appellant, v. TOWN BOARD OF the TOWN OF SOUTHAMPTON, Appellant-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 368

402 N.Y.S.2d 368

43 N.Y.2d 483, 373 N.E.2d 263, 8

Envtl. L. Rep. 20,185

SUFFOLK OUTDOOR ADVERTISING CO., INC., Respondent-Appellant,

v.

Theodore O. HULSE et al., constituting the Town Board of the

Town of Southampton, Appellants-Respondents.

COLLUM SIGNS, INC., Respondent-Appellant, v. TOWN BOARD OF the TOWN OF SOUTHAMPTON, Appellant-Respondent.

Frank J. POLACEK, Jr., doing business as Behrle Outdoor

Advertising, Respondent-Appellant, v. TOWN BOARD OF the TOWN OF SOUTHAMPTON, Appellant-Respondent.

Court of Appeals of New York.

Dec. 21, 1977.

Richard E. De Petris and Emil F. De Petris, Riverhead, for appellants-respondents.

Manly Fleischmann, New York City, Carl W. Peterson, Jr., Adelbert Fleischmann, Buffalo, Eugene A. De Nicola and Henry W. Killeen, III, Buffalo, for respondent-appellant.

OPINION OF THE COURT

JASEN, Judge.

The principal question posed on these cross appeals is whether a local zoning ordinance requiring the removal of all off-premises or nonaccessory billboards throughout the town is an unconstitutional exercise of the police power.

On May 2, 1972, the Town of Southampton adopted Building Zone Ordinance No. 26, which prohibited the erection of all nonaccessory billboards ( § 3-50-60.70) in all districts throughout the town. The ordinance further provided for the removal of all nonconforming billboards on or before June 1, 1975 ( § 3-110-70.03). However, owners of nonconforming billboards were given the opportunity to apply for an extension of the amortization period prescribed by the ordinance ( § 3-110-70.04). Exception was also made for the Town of Southampton to establish public information centers where business signs could be located ( § 3-40-60.07).

Plaintiffs, owners of nonconforming billboards located in the Town of Southampton, seek a declaration that the ordinance in question is unconstitutional in that it is not reasonably related to public safety and welfare. We hold that the ordinance is reasonably related to public safety and welfare, and, as such, is a valid exercise of the police power.

Initially, we reject plaintiffs' contention that the prohibition of nonaccessory billboards constitutes a violation of the right to free speech guaranteed by the First Amendment. While the Supreme Court has held that commercial speech falls within the protection of the First and Fourteenth Amendments, the court recognized that a State may regulate the time, place or manner of commercial speech as opposed to its content to effectuate a significant governmental interest. (Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748, 770-771, 96 S.Ct. 817, 48 L.Ed.2d 346.) We believe that the regulation of aesthetics constitutes such an interest. Since the challenged ordinance makes no attempt to regulate the content of the commercial speech appearing on billboards, but rather regulates only the place and manner in which billboards may be maintained, we conclude that the ordinance does not infringe the right to free speech guaranteed by the First Amendment.

The authority of the State and its political subdivisions to regulate outdoor advertising pursuant to the police power is well settled. (See, e. g., People v. Goodman, 31 N.Y.2d 262, 338 N.Y.S.2d 97, 290 N.E.2d 139; New York State Thruway Auth. v. Ashley Motor Ct., 10 N.Y.2d 151, 218 N.Y.S.2d 640, 176 N.E.2d 566; People v. National White Plains Corp., 299 N.Y. 694, 87 N.E.2d 72; 1 Anderson, New York Zoning Law and Practice (2d ed.), § 11.54; 2 N.Y.Jur., Advertising and Advertisements, § 7; 82 Am.Jur.2d, Zoning and Planning, § 125; Billboards Municipal Regulation, Ann., 58 A.L.R.2d 1314.) Certainly, where the primary purpose for which outdoor advertising is regulated is the public health or safety, there is no doubt that the objective of the regulation lies within the permissible bounds of the police power. (See, e. g., New York State Thruway Auth. v. Ashley Motor Ct., 10 N.Y.2d 151, 218 N.Y.S.2d 640,176 N.E.2d 566, 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; 1 Anderson, New York Zoning Law and Practice (2d ed.), § 11.55.) Although once open to question, it is now equally clear that the regulation of outdoor advertising for aesthetic purposes alone constitutes a valid exercise of the police power. (See Matter of Cromwell v. Ferrier, 19 N.Y.2d 263, 279 N.Y.S.2d 22, 225 N.E.2d 749; People v. Goodman, 31 N.Y.2d 262, 338 N.Y.S.2d 97, 290 N.E.2d 139, supra; Rochester Poster Adv. Co. v. Town of Brighton, 49 A.D.2d 273, 374 N.Y.S.2d 510, 1 Anderson, New York Zoning Law and Practice (2d ed.), §§ 7.07, 11.54; 67 N.Y.Jur., Zoning and Planning Laws, § 123.)

Once it is established that a regulation enacted pursuant to the police power has a valid basis, it need only be shown to sustain its constitutionality that it is reasonably related to the objective for which it was enacted. (Matter of Cromwell v. Ferrier, 19 N.Y.2d, at p. 272, 279 N.Y.S.2d at p. 29, 225 N.E.2d at p. 754, supra; People v. Goodman, 31 N.Y.2d, at p. 266, 338 N.Y.S.2d at p. 101, 290 N.E.2d at p. 141, supra.)

Turning to an analysis of the reasonableness of the Southampton ordinance, we note that the facts in the present case are strikingly similar to those in Matter of Cromwell v. Ferrier, supra. In Cromwell, the Town of Wallkill adopted a zoning ordinance which implicitly prohibited nonaccessory signs throughout the town. In upholding the constitutionality of the ordinance, we recognized that "(a)dvertising signs and billboards, if misplaced, often are egregious examples of ugliness, distraction, and deterioration." (19 N.Y.2d at p. 272, 279 N.Y.S.2d, at p. 29, 225 N.E.2d, at p. 754, supra.) While we cautioned that the police power should not be employed to cure every artistic nonconformity, we nevertheless sustained the ordinance as reasonable since it was substantially related to promoting the general welfare of the community. (19 N.Y.2d at p. 272, 279 N.Y.S.2d, at p. 29, 225 N.E.2d, at p. 754, supra; also, People v. Goodman, 31 N.Y.2d, at p. 266, 338 N.Y.S.2d, at p. 101, 290 N.E.2d, at p. 141, supra.)

Just as in Cromwell, the ordinance under attack in this case prohibits nonaccessory billboards and signs. It cannot be seriously argued that a prohibition of this nature is not reasonably related to improving the aesthetics of the community. Nor can it be said that it is oppressive. (See People v. Goodman, 31 N.Y.2d 262, 338 N.Y.S.2d 97, 290 N.E.2d 139, supra.) Although prohibiting nonaccessory billboards, the ordinance permits the maintenance of accessory or on-premises billboards, thus providing an operative means of advertising.

We therefore hold that aesthetics constitutes a valid basis for the exercise of the police power and that the Southampton ordinance prohibiting nonaccessory billboards is substantially related to the effectuation of this objective.

Although the Southampton ordinance is constitutional on its face, its validity is also dependent upon its reasonableness, as applied. The underlying issue, to be resolved in making this determination is whether the amortization period provided by the ordinance is reasonable. While the purpose of an amortization period is to provide a billboard owner with an opportunity to recoup his investment, an owner need not be given that period of time necessary to permit him to recoup his investment entirely. Nor, however, should the amortization period be so short as to result in a substantial loss of his investment. In this respect, the plaintiffs should be entitled to show that the three-year...