Suffolk Outdoor Advertising Co., Inc. v. Hulse

• Decision Date: 18 March 1977
• Citation: 56 A.D.2d 365,393 N.Y.S.2d 416
• Parties: The 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, v. TOWN BOARD OF the TOWN OF SOUTHAMPTON, Appellant. Frank J. POLACEK, Jr., d/b/a Behrle Outdoor Advertising, Respondent, v. TOWN BOARD OF the TOWN OF SOUTHAMPTON, Appellant. The H. C. WILLIAMS CO. INC., Respondent-Appellant, v. TOWN OF SOUTHAMPTON, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 416

393 N.Y.S.2d 416

56 A.D.2d 365

The 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, v. TOWN BOARD OF the TOWN OF SOUTHAMPTON, Appellant.

Frank J. POLACEK, Jr., d/b/a Behrle Outdoor Advertising, Respondent, v. TOWN BOARD OF the TOWN OF SOUTHAMPTON, Appellant.

The H. C. WILLIAMS CO. INC., Respondent-Appellant, v. TOWN OF SOUTHAMPTON, Appellant-Respondent.

Supreme Court, Appellate Division, Second Department.

March 18, 1977.

Emil F. DePetris, Riverhead (Richard E. DePetris, Riverhead, of counsel), for defendants.

Hancock, Estabrook, Ryan, Shove & Hust, Syracuse (Carl W. Peterson, Jr., Syracuse, of counsel), for respondent-appellant Suffolk Outdoor Advertising Co., Inc.

Tooker, Tooker & Esseks, Riverhead (William W. Esseks, and Stephen R. Angel, Riverhead, of counsel), for respondent-appellant The H. C. Williams Co. Inc.

John J. Munzel, Riverhead, for respondents Collum Signs, Inc. and Frank J. Polacek, Jr. (relying on the brief submitted on behalf of Suffolk Outdoor Advertising, Inc.).

Before HOPKINS, Acting P.J., and SHAPIRO, TITONE, SUOZZI and MOLLEN, JJ.

MOLLEN, Justice.

These appeals are addressed to the sensitive issue of balancing the right of the Town of Southampton to exercise its police power to promote the public safety and welfare of its inhabitants with the right of the outdoor advertising industry to engage freely in activity which would otherwise be legal but for the prohibition contained in the ordinance herein involved.

On May 2, 1972 the Town of Southampton adopted Building Zone Ordinance No. 26, which, Inter alia, required the removal of all nonconforming billboards (off-premises and nonaccessory) on or before June 1, 1975 ( § 3--110--70.03), and provided for application by the owners of such billboards to the Town Board for an extension of the amortization period ( § 3--110--70.04) and prohibited the erection of such billboards in all districts throughout the town, but provided that the town might establish public information centers where approved directional signs for businesses might be located ( § 3--50--60.07).

The plaintiffs, owners of billboards situated at various locations in the Town of Southampton, commenced separate actions to enjoin the defendants from enforcing the ordinance and seeking money damages. The complaints, Inter alia, alleged:

(1) that the ordinance provision which required removal of the billboards was unconstitutional

(a) on its face as a violation of their first amendment rights of free expression;

(b) 'as applied' to the respective plaintiffs as unreasonable and confiscatory; and

(c) as preempted by the Federal Highway Beautification Act of 1965 and section 88 of the Highway Law; and

(2) that the ordinance provision which prohibits such billboards throughout the entire Town of Southampton is unconstitutional on its face because it does not reasonably relate to the public safety and welfare.

All of these claims withstood the defendants' respective motions and cross motions to dismiss. ² Each complaint also contained a claim for damages which was dismissed at Special Term. ³

The plaintiff Suffolk Outdoor further alleged in its fourth cause of action that the ordinance provision which required the removal of the billboards is unconstitutional as violative of the equal protection clause. This cause of action was dismissed upon the defendants' cross motion.

The plaintiff Williams also alleged in its fourth cause of action that the ordinance provision regarding amortization procedures was unconstitutional because it did not set forth adequate standards for its application. This cause of action was also dismissed at Special Term.

Lastly, Suffolk Outdoor's motion for a preliminary injunction was also denied.

The defendants urge that none of the plaintiffs' claims constitute a viable cause of action. Moreover, they contend that the plaintiffs are precluded from attacking the subject 'removal' provision as unconstitutional as applied for failure to exhaust their administrative remedies; and that the plaintiffs' allegations that the 'prohibition' provision is unrelated to safety and public welfare are insufficient because they are conclusory in nature.

Subsequent to the commencement of these actions, Suffolk Outdoor applied by letter to the Town Board for an extension of time. Although Suffolk Outdoor was notified that the letter was insufficient in form, it did not submit any further request for an extension of time. None of the other plaintiffs attempted to obtain an extension.

On June 16, 1976, this court directed that the appeals and cross appeals be heard together.

MAIN APPEAL BY THE DEFENDANTS.

There are four issues presented in the main appeal:

(1) Whether the 'prohibitory' provision is unconstitutional because it does not reasonably relate to the public safety and welfare;

(2) Whether the 'removal' provision violates the plaintiffs' first amendment right of freedom of expression;

(3) Whether the 'removal' provision is in conflict with a State policy allegedly embodied in section 88 of the Highway Law; and

(4) Whether the plaintiffs' failure to exhaust their administrative remedies precludes their claim that the 'removal' provision is unconstitutional 'as applied'.

CROSS APPEAL BY PLAINTIFFS SUFFOLK

OUTDOOR AND WILLIAMS.

There are four issues raised on the cross appeals:

(1) Whether the administrative remedy contained in the subject ordinance is unconstitutionally vague and/or procedurally invalid;

(2) Whether the 'removal' provision constitutes a denial of equal protection;

(3) Whether an action for damages properly lies against the Town of Southampton for its enforcement of the ordinance; and

(4) Whether the plaintiff Suffolk Outdoor is entitled to a preliminary injunction.

We modify the orders by dismissing those portions of (1) Suffolk Outdoor's first, second and third causes of action, (2) Collum's first cause of action, (3) Polacek's first cause of action, and (4) Williams' first, second and third causes of action, which assert the invalidity of the subject ordinance on grounds other than the assertion that the provision thereof which prohibits billboards is not reasonably related to public safety and welfare. In all other respects we affirm. ⁴

The only theory posited by the plaintiffs which we find viable is their claim that the ordinance provision which prohibits billboards and signs is unconstitutional on its face because it does not reasonably relate to the public safety and welfare. We believe that the complaint sets forth sufficient allegations to create a factual issue and that the matter should be determined at trial.

The ordinance under review permits onpremises (i.e. accessory) billboards and signs, but prohibits off-premises (i.e., nonaccessory) billboards and signs in all districts of Southampton, with the exception that the town may establish special public information centers where approved directional signs for businesses may be located. ⁵

The courts of this State have heretofore upheld municipal ordinances prohibiting billboards throughout an entire municipality. In Matter of Cromwell v. Ferrier, 19 N.Y.2d 263, 279 N.Y.S.2d 22, 225 N.E.2d 749, wherein this very issue was directly involved, the Court of Appeals upheld a zoning ordinance which permitted accessory signs but implicitly prohibited nonaccessory signs throughout the entire Town of Wallkill. In doing so, the court specifically and directly overruled Matter of Mid-State Adv. Corp. v. Bond, 274 N.Y. 82, 8 N.E.2d 286, wherein the Court of Appeals had made a distinction between ordinances which were merely regulatory and those which were prohibitory in nature. Judge Breitel, speaking on behalf of the majority of the court in Cromwell, in the course of a comprehensive opinion, directed himself to that issue as follows (19 N.Y.2d p. 268, 279 N.Y.S.2d p. 26, 225 N.E.2d p. 752):

'It is concluded that the decisional as well as the practical bases for the holding in Bond (supra) are either no longer valid or have changed so considerably that the case should be overruled.'

Judge Breitel went on to say (p. 269, 279 N.Y.S.2d p. 26, 225 N.E.2d p. 752):

'One important factor in the courts' increasingly permissive treatment of similar zoning ordinances has been the gradual acceptance of the conclusion that a zoning law is not necessarily invalid because its primary, if not its exclusive objective, is the esthetic enhancement of the particular area involved, so long as it is related if only generally to the economic and cultural setting of the regulating community.'

Again, Judge Breitel stated (p. 271, 279 N.Y.S.2d p. 28, 225 N.E.2d p. 754):

'It has long been settled that the unique nature of outdoor advertising and the nuisances fostered by billboards and similar outdoor structures located by persons in the business of outdoor advertising, justify the separate classification of such structures for the purpose of governmental regulation and restriction.'

The Court of Appeals, in Cromwell, set forth the sole criteria to be applied in determining the validity of this type of ordinance, namely, reasonableness. The court held (p. 270, 279 N.Y.S.2d p. 27, 225 N.E.2d 753):

'Consequently, insofar as the Bond holding (supra) was predicated on the now discarded notion that esthetic objectives alone will not support a zoning ordinance, it may no longer be a valid precedent. But as pointed out in Stover ((People v. Stover, 12 N.Y.2d 462, 240 N.Y.S.2d 434, 191 N.E.2d 272), Supra), the question remains whether such an ordinance should still be voided because it constitutes an "unreasonable device of implementing community policy" * * * In nearly all (decisions of this court), zoning ordinances which have distinguished between accessory and nonaccessory signs have been upheld, providing that the distinctions were...