Jurisdictional Statement — Modjeska Sign Studios, Inc. v. Berle

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Suoreme Court, U. $.

; F ] a E D

| MAY 28 Jo72

No. 77-

RODAK, JR., CLERK |

IN THE

Supreme Court of the United States

October Term, 1977

MODIJESKA SIGN STUDIOS, INC.,

Appellant,

PETER A.A. BERLE,

Appellee.

ON APPEAL FROM THE COURT OF APPEALS

OF THE STATE OF NEW YORK

JURISDICTIONAL STATEMENT

CARL W. PETERSON, JR.

Hancock, Estabrook, Ryan,

Shove & Hust

One Mony Plaza

Syracuse, New York 13202

WILLIAM H. ALLEN

MICHAEL A. SCHLANGER

Covington & Burling

888 Sixteenth Street, N.W.

Washington, D.C. 20006

Attorneys for Appellant

May 1978

(i)

TABLE OF CONTENTS

Page

EE Sec ccccuceeséensdbnseeecenececouneseees 1

PENS & Sc Cees uddbunendsoceb Uedduuedadseecebesess 2

OPTI 60:65 60080050 060006040440600 400500066820 3

IED icc nace déddewensstusssebbasonadenes 4

PT oo dc wt nudedenvedensenss EMU pep ALE Re 4

The Questions Presented Are Substantial.................04. 10

I. A State Statute That Expels From a 1055-Square

Mile Region an Entire Medium of Mass Com-

munication, Where the Sole Justification For the

Expulsion Is A Perception That the Medium Of-

fends Undefined *Aesthetic’’ Values, Constitutes

an Impermissible Abridgment of Freedom of

Speech in Violation of the First Amendment............ 10

Il. A State Statute That Effects a Total Destruction of

a Decades-Old Business By Requiring That

Business to Remove Itself From a 1055-Square

Mile Region, Without Compensation, Where Con-

cededly the Continuance of That Business Will Not

Adversely Affect the Health, Safety or Tangible

Welfare of Other Persons or Property, Deprives the

Proprietor of the Business of Property Without

Due Process of Law in Violation of the Fourteenth

III 6.5 a's once nceseebeadds <onastadbencess 14

SD ono. 06 bn 50465066 0666064666064 00860664088 17

Appendix A— Opinion of the New York Court of Appeals

50606040055 6b006b0655 60s 06 bRseR CERES ON la

Appendix B— Opinion of the New York Supreme Court,

Appellate Division, Third Department......... l4a

(ii)

Page

Appendix C— Opinion of the New York Supreme Court,

Special Term, Albany County................ 22a

Appendix D— Judgment of the New York Court of Ap-

PE EPPS Teer Te Tee TTT eee Tee eT eT ere 3la

Appendix E— Order of the New York Court of Appeals

Denying Appellant's Motion for Re-

argument and for an Amendment of the

Ds c¢44e0 bu aed baeetnavedeveve ¢* 33a

Appendix F— Notices of Appeal Filed in the New York

Court of Appeals and in the New York

Supreme Court, Special Term, Albany

RE Nae GGbbbUGbENs Ebene ensd\c. ver ooo

AppendixG— New York Envt'l Conserv. Law §§ 9-

0101(2), 9-030S (McKinney 1973)............. 36a

TABLE OF AUTHORITIES

Cases:

Bigelow v. Virginia,

a i oe ca weeaeecaveusen 3

Cox Broadcasting Corp. v. Cohn,

ee ee cu dae eeekucoenent 3

Grayned v. City of Rockford,

CS AOR SGN Od seer Ae eeeeseobeccesesiees 13

Mayor and City Council of Baltimore v. Mano

Swartz, Inc..

es ee 15, 16

Panhandle Eastern Pipe Line Co. v. Highway Comm'n.

ie ieee ee ee rc cel ce che kucwee os 3

Spence v. Washington.

LS cchins ous ke 66 on 00 p44 540s 6d0.08ns 3

(iii)

Page

Suffolk Outdoor Adv. Co. v. Hulse,

43 N.Y.2d 483, 373 N.E.2d 263(1977) ........... 9, 10, 11, 12, 14

Virginia Pharmacy Bd. v. Virginia Consumer

Cee Bie., GG, PRET OTE 6c ccevcescccvecoecoune 9,10

Statutes:

PU RUTEED oh.c0eecued ce useresesececoueseeeeses 3

N.Y. Envt'l Conserv. Law § 9-0101(2)

eels cuca cnc snetacecsscoseeesueus )

N.Y. Envt'l Conserv. Law § 9-0305

ds rrr rr er rerrrerer rere ee passim

A Es cc cbc 660 CCA SUNS REO URE EROS OC See Se 5

OS ide ecs een eeesesessesetuecwene 5

SGGO IE. Y. Lowe. @. 8GBB, G8. ccc cccccccvecccccsccccccces 8

1970 N.Y. Laws, c. 392, GBR 1-3 2. cc cccccccccccccvcvevecees 8

NOTA. Y. Lame, ©. G66, OS... ccccccccccccsccccnscccsecess 8

Miscellaneous:

Aver Media Facts (1976-77) 0.0.2.0 cece cece eee eeenreeneees 16

The Catskill Center Plan (ISTE) ow cece cccccccccccccens 5,15

Catskill Region Map (N.Y. Temporary State

Comm'n to Study the Catskills, 1975)... 0... cee ee eee 5,7

Ca.skill Study Report No. 7, Towards a

Scenic Roads Program for the Catskills

(N.Y. Dep't Envt’l Conserv., 1976) 2.0.6... c ee eee rere eee 7

Economic Data on Greene County, New York

(Greene County Indus. Dev. Agency, 1975) ... 6.6.66. e eee eee 6

(iv)

Page

The First Medium (Institute of Outdoor

ROR, COVED oo kvcctcesbusens 0400430 Ree 16

The Future of the Catskills (N.Y. Temporary State

Comm'n to Study the Catskills, 1975) .............00005- 5, 6, 7

Message of the Governor, 1957 N.Y.

EWG BUSS oc ccceccceseunenseceseent sete eee 5

Outdoor Advertising Expenditures (Leading National

A@vattignse, Wnt.. COVEs oo cv c00cccuneseseeeua eke ute 16

Profile of Business and Industry, Mid-Hudson Area.

Part 1 (N.Y. Dep't of Commerce, 1976). ............0000 6,12

Rand McNally Road Atlas (1977)... 00... cece cence ccueccee 5&7

47 Television Factbook, Stations Volume (1978) .....0.0..00060065 12

Ulster County Envt'l Management Council

Annnal Bagest (CTE «oe ec cccccccecsv6sbes beeeeeneneee 7

Ulster County Planning Board Data Book (1973) .......0.00..45. 6

Vital Signs: Sustaining the Health of Tourism

(N.Y. State Senate Task Force on Critical

Poeabtems, GFE)... ccvccccecsenccececedueuune nn 13

IN THE

Supreme Court of the United States

October Term, 1977

No. 77-

MODIJESKA SIGN STUDIOS, INC.,

Appellant,

PETER A.A. BERLE,

Appellee.

ON APPEAL FROM THE COURT OF APPEALS

OF THE STATE OF NEW YORK

JURISDICTIONAL STATEMENT

Appellant appeals from a judgment of the Court of Ap-

peals of the State of New York sustaining the validity of a

state statute against a challenge to its constitutionality as

applied to the property involved in this case.

OPINIONS BELOW

The opinion of the New York Court of Appeals is repor-

ted at 43 N.Y.2d 468, 402 N.Y.S.2d 359 and 373 N.E.2d

255, and is set forth in Appendix A hereto (pp. la-13a). The

opinion of the New York Supreme Court, Appellate

Division, Third Department, is reported at SS App. Div.2d

340 and 390 N.Y.S.2d 945, and is set forth in Appendix B

2

hereto (pp. 14a-2la). The opinion of the New York

Supreme Court, Special Term, Albany County, is reported

at 87 Misc.2d 600 and 386 N.Y.S.2d 765, and is set forth in

Appendix C hereto (pp. 22a-30a).

JURISDICTION

Appellant Modjeska Sign Studios, Inc., instituted this

action as a suit for declaratory and equitable relief in the

courts of New York. The suit challenged a statute of the

State of New York that prohibits the maintenance of off-

premises outdoor advertising signs throughout the unin-

corporated portions of “*Catskill Park,’’ a 105S-square mile

tract located in four counties in southeastern New York.

Among the allegations was that on its face the statute, in-

sofar as it prohibited the maintenance of Modjeska’s

billboards in the Park, abridged freedom of speech in

violation of the First Amendment and deprived Modjeska

of property without due process of law in violation of the

Fourteenth Amendment. (R.24-31.)' By an order of August

4, 1976, summary judgment was granted at Special Term

sustaining the validity of the statute as against those claims.

The Appellate Division and the Court of Appeals affirmed

the order of the Special Term, in pertinent part.

The Court of Appeals’ judgment was entered on Decem-

ber 21, 1977, and is set forth in Appendix D hereto (pp.

31a-32a). An order of the Court of Appeals denying Mod-

jeska’s motion for reargument and for an amendment of

the remittitur was entered on February 22, 1978, and is set

forth in Appendix E hereto (p. 33a). Notices of appeal were

filed in the Court of Appeals and at Special Term on March

30 and May 11, 1978, respectively, and are set forth in Ap-

pendix F hereto (pp. 34a-35a).

‘References to the Appendix below are cited “R._____.”

3

jurisdiction to hear this appeal is conferred on this Court

by 28 U.S.C. § 1257(2). The following cases sustain the

jurisdiction of this Court: Bigelow v. Virginia, 421 U.S. 809

(1975); Spence v. Washington, 418 U.S. 405 (1974)

(per curusm); Panhandle Eastern Pipe Line Co. v. Highway

Comm’‘n, 294 U.S. 613 (1935).

STATUTE INVOLVED

Section 9-0305S of the Environmental Conservation Law

of the State of New York sets forth restrictions on the erec-

tion and maintenance of outdoor advertising signs within

the region designated as Catskill Park. The provisions of

the statute challenged on this appeal are set forth in sub-

section 1 of the statute, which provides, in relevant part, as

follows:

‘1. ...[N]o person shall erect or maintain within

the boundaries [of the park] . . . any advertising

sign, advertising structure or device of any kind,

except under written permit from the [Djepart-

ment fof Environmental Conservation]. . . .”

“As to signs, structures or devices existing

within the Catskill park on May 26, 1969, and

Although the Court of Appeals remanded for a hearing of the issue

of the “reasonableness” of the statutory grace period preceding the un-

compensated removal of the signs, there is no question as to the finality

of the judgment. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469,

480, 482-83 (1975).

‘Excepted from the statute's prohibition are accessory or on-

premises signs, i.c.. signs “erected or maintained upon a parcel of real

property in connection with the principal business or principal

businesses conducted thereon and which advertise such business or

businesses only,” and also “signs within the limits of an incorporated

village.’ of which there are three. On-premises signs would include

signs in the parking lot adjoining a liquor store or a franchised fast-

food carryout and signs on or projecting from the wall of a building

housing a hardware store or laundromat.

4

which require a permit pursuant to this section,

the same may continue to be maintained without

permit until January 1, 1976 provided that the

property owner or owner of such sign, structure or

device registers the same with the department on

or before January 1, 1972.”

The complete text of the statute is set forth in Appendix G

hereto (pp. 36a-40a).

QUESTIONS PRESENTED

1. Whether a state statute that expels from a 1055-

Square mile region an entire medium of mass communi-

cation, where the sole justification for the expulsion is a

perception that the medium offends undefined “‘aesthetic”’

values, constitutes an impermissible abridgment of

freedom of speech in violation of the First Amendment as

made applicable to the states by the Fourteenth Amend-

ment.

2. Whether a state statute that effects a total destruction

of a decades-old legitimate business by requiring that

business to remove its property from the entire region,

without compensation, where concededly the continuance

of that business will not adversely affect the health, safety

or tangible welfare of other persons or their property,

deprives the proprietor of property without due process of

law in violation of the Fourteenth Amendment.

STATEMENT

The subject of this case is a statute of the State of New

York that requires the removal from Catskill Park of 96 off-

premises outdoor advertising signs maintained by appellant

Modjeska Sign Studios, Inc. These signs have been main-

tained in and around various of the zoned and unzoned

towns situated within the Park in areas that are occupied

also by other commercial establishments. (R.24-31.)

S

Modjeska has been engaged in the business of erecting

and maintaining such signs — commonly known as bill-

boards — since 1926. Modjeska’s signs have been part of

the Catskill Park landscape since the 1930's. All of the

locations on which Modjeska’s Catskill Park signs now rest

were first occupied before 1969. (R. 25.)

“Catskill Park,”’ as an area distinct from the Catskill

region of which it is the centerpiece, is a creation of the New

York Legislature.‘ It is a tract of 675,000 acres, 241,000 of

which are forest preserve,* carved principally from the nor-

thern half of Ulster County and the southern half of Greene

County, with small portions also taken from the northern

and eastern tips of Sullivan and Delaware Counties, respec-

tively.° The Catskill region, as designated by historians and

current state-commissioned planners, has a population of

more than 375,000.’

Long before Modjeska and other legitimate businesses

settled in what became ‘Catskill Park,”’ that tract and its

environs were the site of some of America’s earliest com-

mercial activity: In 1609, Hudson explored the region, in

1610 a fort was constructed at Atkarkarton, and in 1614 the

Dutch West India Company established a trading post

“N.Y. Envt’l Conserv. Law § 9-0101(2) (McKinney 1973). The Park

was established in 1904. 1904 N.Y. Laws, c. 233. In 1957, its boundary

— known as the “Blue Line” (see The Catskill Center Plan 41-42

(1974)) — was extended by 107,660 acres south and east to the western

side of the New York Thruway, including a smaili corner of the City of

Kingston. 1957 N.Y. Laws, c. 787; see accompanying Message of the

Governor, 1957 N.Y. Laws at 1911, and Catskill Region Map (N.Y.

Temporary State Comm'n to Study the Catskills, 1975). The Park

boundary shown in the most commonly referred to source, the Rana

McNally Road Atlas 71 (1977), is the pre-1957 boundary.

‘The Future of the Catskills 4 (N.Y. Temporary State Comm'n to

Study the Catskills, 1975) (‘Catskill Study’’). Substantial portions of

the forest preserve were acquired by tax foreclosure and eminent

domain proceedings. /d. at 46; The Catskill Center Plan, supra, at 46.

°N.Y. Envt'l Conserv. Law § 9-0101(2), supra.

Catskill Study, supra, at 4.

6

several miles east of the present southern entrance to the

Park. By 1661, Dutch and Huguenot immigrants had

established the settlement that now is the town of Hurley.*

The industrial and general economic history of the region

has been one of “ebb and flow,” with its first major in-

dustry, leather tanning, going out of business by 1885,’ and

the bulk of recent area development centered slightly below

the region in the southern portions of Ulster County.'°

The region has shared in the financial misfortunes of

New York State and City. Recently, it was characterized by

its state-commissioned planners as afflicted with ‘‘a

Sagging economy,” in which “tourism, resorts and recre-

ational activity are economic mainstays,”’ although the “‘at-

titudes of permanent residents of the area are not

altogether favorable’ to such an economic base.'' Thus, as

reflected in the most comprehensive public source, the

yellow pages of the telephone directory for Kingston and

surrounding communities, in the Ulster County portion of

the Park alone there are nine resorts, 36 hotels and motels,

and a full complement of retail] sales and service establish-

ments. In addition, a variety of small and medium-sized in-

dustries are located throughout northern Ulster County

and Greene County, including many in the Park itself, e.g.,

saw mills, plants that manufacture cooling and power

conversion equipment, concrete, dresses, munitions

and fabricated steel products.'? The normal or pre-

dominant use of the Park’s major east-west arterials, all

“Ulster County Planning Board Data Book 7 (1973) (“Ulster

Report”).

*Catskill Study, supra, at 4.

‘Ulster Report, supra, at 43.

"Catskill Study, supra, at 8-9.

Ulster Report, supra, at 9, 43-51; Economic Data on Greene Coun-

ty at VI-10 (Greene County Indus. Dev. Agency, 1975); Profile of

Business and Industry, Mid-Hudson Area, Part 1, at 7, 23 (N.Y. Dep't

of Commerce, 1976).

-

federally-aided primary highways (Routes 28, 23 and 23A),"

is by residents of the region seeking to transact business

at the roadside retail and wholesale establishments in the

Park and by persons journeying to and from the Park’s

resorts and other traveler accommodations. Sections of the

Park’s principal road, Route 28, are seen by residents as

burdened with “very heavy”’ traffic, “causing noise and air

pollution’’'*; other sections have been characterizeu by the

State as ‘‘blighted”’ with ‘‘commercial activity,”’ including a

“commercial strip,” and a shopping center under con-

struction.'* A principal criticism of those studying the land

use planning of the region’s 160 cities, towns and villages

was that, as of the fall of 1973, the ‘subdivision and zoning

ordinance situation’”’ was “‘dismal.’”'®

Modjeska is the largest sign operator in the Park.'’ Each

of its signs is located on or adjacent to a major commercial

thoroughfare linking one or more of the area communities.

Sixty-six of its signs are on Route 28, the major east-west

arterial bisecting the Park, spanning its width and con-

necting Kingston with Utica and other New York cities to

the north and west."*

The spaces on Modjeska’s signboards are purchased by

small local commercial establishments, agencies of the

United States government, candidates for public office, and

''R. 27; Catskill Region Map, supra.

'*Ulster County Envt'l Management Council Annual Report 23

(1975).

'*Catskill Study Report No. 7, Towards a Scenic Roads Program for

the Catskills 24-25(N.Y. Dep't Envt’l Conserv., 1976).

'*Catskill Study, supra, at 6; see also Catskill Study Report No. 7,

supra, at 19-27.

"As of September 1976, approximately 216 signs in the Park were

deemed by the State to be “‘illegal’’ under § 9-030S. Catskill Study

Report No. 7, supra, at 15.

'*R. 32-41; Catskill Region Map, supra; Rand McNally Road Atlas,

supra, at 71.

8

citizens groups seeking to present their positions on con-

troversial issues of public importance.'’ During any given

year, Modjeska makes available at least 3 to S percent of its

signs for the presentation of public service advertising on

behalf of loce charities and other causes. As with the other

mass medi the value of outdoor advertising is measured

by its circulation, which is defined by the industry as the

number of persons passing a sign each day. Because of the

heavy flow of daily traffic along Route 28 and the other

thoroughfares served by its Park signs, the average daily

circulation of Modjeska’s Park signs exceeds 20,000.

All of Modjeska’s signs have been operated lawfully on

property owned by it or leased from Catskill land owners;

when the litigation began, the estimated fair market value

of Modjeska’s Catskill Park plant was $600,000. (R.24.) On

May 26, 1969, New York enacted amended section 3-0327

of the Conservation Law.”® The pertinent portions of that

Statute, as further amended in 1970,*' survived the 1972

recodification’”’ of the State’s conservation laws and are set

forth in section 9-0305 of the Environmental Conservation

Law. In relevant part, the latter statute prohibited the erec-

tion or maintenance of outdoor advertising signs in the

unincorporated portions of Catskill Park unless, for a par-

ticular sign, a permit was issued by the Department of En-

vironmental Conservation. It also provided that all signs

standing within the Park before May 26, 1969, might con-

tinue to be maintained without a permit until January 1,

1976. The State conceded that Modjeska’s signs were not

eligible for permits under rules promulgated by the Depart-

'*When the present litigation vegan, four of Modjeska's signs were

United States Army recruitment posters. Each of the remaining 92

signs advertised the goods or services of a local business, /.¢., a business

located within 10 miles of the sign. (R.32-41.)

*°1969 N.Y. Laws, c. 1052, §1.

"1970 N.Y. Laws, c. 392, §§ 1-3.

7*71972 N.Y. Laws, c. 664, § 5.

9

ment of Environmental Conservation and thus were subject

to removal on January 1, 1976. (R.44.)

On December 17, 1975, Modjeska filed the present ac-

tion in the New York Supreme Court, Special Term,

Albany County. (R.20-31.) Its verified complaint included

allegations that the statute was unconstitutional on its face,

in that it abridged the free speech rights of Modjeska and

of those with whom it sought to communicate in violation of

the First Amendment (R.27) and deprived Modjeska of its

property without due process of law in violation of the

Fourteenth Amendment. (R.26.) The state moved to dis-

miss the complaint for failure to state a claim or, in the

alternative, for summary judgment. (R.42-48.)

The Special Term granted the State’s motion as one for

“summary judgment. declaring the subject statute to be

valid."’ (App. C, p. 30a.) The Appellate Division affirmed.

The Court of Appeals reversed in part (see note 2, supra),

but upheld the constitutionality of the statute, rejec-

ting Modjeska’s First and Fourteenth Amendment con-

tentions. (App. A, pp. la-13a.) It did not discuss the First

Amendment issue at all, relying on its discussion in Suffoik

Outdoor Adv. Co. v. Hulse, 43 N.Y.2d 483, 373 N.E.2d 263,

decided at the same time. The opinion in the Suffolk case

appeared first to accept the basic “commercial speech”’

holding of the only one of this Court’s decision cited by it,

Virginia Pharmacy Bd. v. Virginia Consumer Council,

Inc., 425 U.S. 748 (1976), but held billboards beyond the

coverage of that case because “the court recognized that a

State may regulate the time, place or manner of commer-

cial speech . . . to effectuate a significant governmental in-

terest’’ and that the “regulation of aesthetics constitutes

such an interest.’’ 43 N.Y.2d at 489, 373 N.E.2d at 20S.

On the Fourteenth Amendment question, the Court of

Appeals proceeded on the assumption that the statute was

10

enacted solely to promote aesthetic interests. It expressly

reaffirmed (App. A, pp. 2a, 7a) its decision the same day in

the Suffolk case in which it had held forthrightly that

“aesthetics constitutes a valid basis for the exercise of the

police power and that the . . . ordinance [in question]

prohit 1g nonaccessory billboards is substantially related

to the effectuation of this objective.” (43 N.Y.2d at 490, 373

N.E.2d at 266.) In Modjeska, the court said that to be

“reasonable,” an exercise of the police may ‘‘not

unreasonably deprive an owner of all beneficial use of his

property.” (App. A, p. 3a.) It reversed the Appellate Divi-

sion’s judgment and remanded for a trial of the issue of the

“reasonableness”’ of the period between the enactment of

the statute and the time of the required removal of the

billboards. (App. A, p. 12a).

THE QUESTIONS PRESENTED ARE

SUBSTANTIAL

1. A STATE STATUTE THAT EXPELS FROM A 1055-

SQUARE MILE REGION AN ENTIRE MEDIUM OF

MASS COMMUNICATION, WHERE THE SOLE

JUSTIFICATION FOR THE EXPULSION IS A PER-

CEPTION THAT THE MEDIUM OFFENDS UN.-

DEFINED “AESTHETIC” VALUES, CONSTITUTES

AN IMPERMISSIBLE ABRIDGMENT OF

FREEDOM OF SPEECH IN VIOLATION OF THE

FIRST AMENDMENT

The court below rejected Modjeska’s First Amendment

contention without discussing it. It did so in sole reliance on

its discussion in Suffolk Outdoor Adv. Co. v. Hulse, 43

N.Y.2d 483, 373 N.E.2d 263 (1977), decided the same day.

Suffolk Outdoor Advertising Company, through the un-

dersigned counsel, has this day perfected its appeal in that

case and has argued in its jurisdictional statement that the

decision of the Court of Appeals in Suffolk raises a sub-

stantial federal question about the status of outdoor ad-

11

vertising under the First Amendment. The First Amend-

ment question raised by the compelled elimination of Mod-

jeska’s signs from Catskill Park is substantial for the same

reasons as the question raised by the compelled elimination

of Suffolk’s signs from the Town of Southampton. Ac-

cordingly, we adopt the First Amendment argument

presented in Suffolk’s jurisdictional statement, copies of

which are being served upon counsel for the appellee in

this case.

In its Suffolk opinion, the Court of Appeals said that the

billboards there involved constitute ‘“‘commercial speech,”

the ‘‘time, place or manner”’ of which could be “‘regulated”’

— to the extent of prohibition — to effectuate a ‘‘signi-

ficant governmental interest in aesthetics.’ This Court said

in Virginia Pharmacy Bd. v. Virginia Consumer Council,

Inc., 425 U.S. 748, 771 (1976), that it had often approved

time, place or manner restrictions “provided that they are

justified without reference to the content of the regulated

speech, that they serve a significant governmental interest,

and that in so doing they leave open ample alternative

channels for communication of the information.” In the

Suffolk jurisdictional statement, it is shown that this

Court’s standards are not satisfied by a town-wide

prohibition of billboards. Nor are they satisfied by the

prohibition at issue here. To what is said in the Suffolk

statement about the lack of “ample alternative channels’’

and of ‘‘a significant governmental interest,’’ we add these

few words.

Alternative Channels. Neither of the appellate courts

below mentioned the admitted allegations of Modjeska’s

verified complaint, and of the verified complaint of the

proposed intervenor, the Outdoor Advertising Association

of New York, concerning the unique qualities of Mod-

jeska’s Catskill Park signs as efficient and inexpensive

vehicles for conveying information, ‘‘whether commercial,

political or social.” (R.25, 67.) The Appellate Division said

12

in its opinion in this case that “the same information can be

conveyed to the public by newspaper, radio or television ad-

vertising.”’ (App. B, p. 20a.) The implication that there are

ample alternatives to Modjeska’s signs is false.

Few of Modjeska’s signs are ever utilized by the large

regional or national commercial advertiser. Rather, Mod-

jeska offers a distinctly local advertising medium. At the

time it filed suit, 92 of its 96 Catskill Park signs adver-

tised the goods or services of a business located within 10

miles of the sign; the other four signs were occupied by

United States Army recruitment posters. And, during elec-

tion periods, it is the candidate for local — Ulster or

Greene County — political office who purchases space on

Modjeska’s signs. Contrary to the Appellate Division's off-

hand assumption, none of the other mass media offers a

commercially acceptable alternative. A candidate for local

office in any of the Greene or Ulster County communities

within the Park, or a similarly-situated restaurant (R.33,

35, 37, 39), car wash (R.35) or plumber (R.35), does not

have available a local VHF television station on which to

purchase a 30-second spot; the choices are limited to three

Albany, one Hartford, and six New York City television

Stations, whose normal rates range from $300 to $6,000 for

that half minute.”’

Significant Governmental Interest. The interest asserted

here, as in Suffolk, is an interest in what the Court of Ap-

peals termed “‘aesthetics.’’ Such an interest cannot suffice

“47 Television Factbook, Stations Volume 149-b, 558-b-56!-b, 571-

b-575-b (1978). Persons driving along Routes 28 or 23A do not stop to

buy a newspaper to find a suitable local restaurant, diner, or auto

repair shop. If they did, however, the choices would be limited to the

Catskill Mail, a Greene County afternoon newspaper published Mon-

day through Saturday with a circulation of 4873, and the Kingston

Freeman, an afternoon newspaper published Sunday through Friday.

with a peak (Sunday) circulation of 23,562. Profile of Business and In-

dustry, Mid-Hudson Area, Part 1. at 22 (N.Y. Dep't of Commerce,

1976).

13

as a reason for suppressing a medium of speech, at least un-

til there is an inquiry into “whether the manner of ex-

pression is basically incompatible with the normal activity

of a particular place at a particular time,’’ Grayned v. City

of Rockford, 408 U.S. 104, 116 (1972). When such an

inquiry is made, there is obviously no such ‘‘aesthetic’’ in-

terest relating to Catskill Park as can justify this

prohibition of billboards. The “normal activity’’ to which

the roads of the commercial and industrial districts of the

Park have been committed for centuries remains thoroughly

compatible with the signs, including Modjeska’s, that com-

municate to the consuming public the particulars of that ac-

tivity. The major industries within the Park— the sawmills, the

manufacturers of munitions, concrete and heavy industrial

equipment — do not depend for their sales on mass media ad-

vertising to local and touring motorists. But such advertising,

as the least expensive and most effective means of mass com-

munication, is the life blood of local merchants in this

economically-depressed region, including those who make

their living from hotel or motel proprietorship and other activity

connected with the tourist industry.”

**In 1976, a New York legislative body estimated that ‘‘about one-

third of traveler- or highway-oriented business can be attributed to

highway advertising sizns,”’ and that this indicated that “more than

$1.2 billion of the income of the State’s second largest industry may be

attributable to highway signs.” Vital Signs: Sustaining the Health of

Tourism 8 (N.Y. State Senate Task Force on Critical Problems, 1976).

14

ll. A STATE STATUTE THAT EFFECTS A TOTAL

DESTRUCTION OF A DECADES-OLD BUSINESS

BY REQUIRING THAT BUSINESS TO REMOVE

ITSELF FROM A 1055-SQUARE MILE REGION,

WITHOUT COMPENSATION, WHERE CON-

CEDEDLY THE CONTINUANCE OF THAT

BUSINESS WILL NOT ADVERSELY AFFECT

THE HEALTH, SAFETY OR TANGIBLE

WELFARE OF OTHER PERSONS OR PROPER-

TY, DEPRIVES THE PROPRIETOR OF THE

BUSINESS OF PROPERTY WITHOUT DUE

PROCESS OF LAW IN VIOLATION OF THE

FOURTEENTH AMENDMENT

The court below rejected Modjeska’s Fourteenth Amend-

ment claims that the State of New York could not, simply

by invoking its police power and without resort to its power

of eminent domain, force the removal of Modjeska’s signs.

Once again, the Court of Appeals ruled in express reliance

on the constitutional analysis offered in Suffolk that

deferred destruction of Modjeska’s $600,000 Catskill Park

business did not “rise to the level of a ‘taking’’’ (App. A, p.

4a) and that the grace period preceding the destruction,

while not the equivalent, was a permissible substitute for

the ‘‘just compensation” that the Constitution requires. To

the court below, the only noticeable difference between the

cases was the length of the grace periods and the nominal

opportunity under the Southampton ordinance at issue in

the Suffolk case for Suffolk Outdoor to obtain a brief ex-

tension of that grace period. (App. A, pp. 7a-12a.)

Suffolk Outdoor has set forth in its jurisdictional

statement the reasons why the decision of the Court of Ap-

peals in Suffolk raises a substantial federal question as to

the power of the state under the Fourteenth Amendment to

effect a municipality-wide prohibition of a decades-old

legitimate business without paying ‘‘just compensation” to

the proprietor of the business. The Fourteenth Amendment

question raised by the uncompensated destruction of Mod-

jeska’s Catskill Park business is substantial for the same

1S

reasons. Accordingly, we adopt the Fourteenth Amend-

ment argument presented in Suffolk Outdoor’s jurisdic-

tional statement and offer only a few additional comments.

Certainly there are parts of the vast Catskill region that

should be preserved in their natural state, such as the

241,000-acre forest preserve portion of the Park, acquired

principally through condemnation and tax foreclosure

proceedings.** And, perhaps, certain of the areas of the

Park, long ignored and burdened with ‘‘very heavy’’ traffic,

“noise and air pollution,”’ or commercial ‘‘blight’’®* should

be reclaimed and restored to a prior condition through the

use of the same eminent domain powers that the State has

invoked since the 19th Century to acquire for itself portions

of the region.

The Catskili Park billboard statute does not seek to

“protect the works of nature or the achievements of art or

the associations of history’”’ or to preserve or protect any

feature of the commercial and industrial areas of the Park

as they have grown since Modjeska’s signs first joined them

in the 1930’s.”* Rather, it seeks to oust a member of the

region’s economic community merely to achieve ‘‘an

** See discussion supra, at 5n.5.

**See discussion supra, at 7.

*"Mayor and City Council of Baltimore v. Mano Swartz, Inc., 268

Md. 79, 92, 299 A.2d 828, 835 (1973).

*“But for accidents of history, the portion of the Park added by the

1957 extension, in which 34 of Modjeska’s signs are located, would be

just another neighborhood or suburb of an upstate New York city. See

discussion supra.at S$ and n.4; R.32-41. The citizens’ conservation group that

authored The Catskill Center Plan, supra, recommended the “‘recon-

sideration” of the 1957 extension. It was of the opinion that “for

management purposes a more practical and logical boundary could be

drawn eliminating this eastward extension of the Park, with the idea of

rededicating the scattered and isolated parcels in the vicinity of Stony Hollow

for a variety of more intensive recreational uses." The Catskill Center Plan,

supra, at 42.

16

aesthetically pleasing result."*’ If the State can use the

police power in this manner, then it can so employ it in any

region and bring about the state-wide death of the oldest,

least expensive and most accessible of the media of mass

communication.” The desires of New York’s political

leaders to enhance the region’s “aesthetic are legitimate,

if elusive, goals. But the statute is not reasonably calculated

to further them, except in a way that unfairly and

unreasonably impairs Modjeska’s property interests, and

therefore cannot withstand scrutiny under the Fourteenth

Amendment.

**Mayor and City Council of Baltimore v. Mano Swartz, Inc., supra.

268 Md. at 92, 299 A.2d at 835.

Member companies of the Outdoor Advertising Association of New

York own and operate a total of 9358 billboards in 60 of the State's 62

counties. (R.S9.) According to recent estimates, their operations produce

gross annual revenues of approximately $7,250,000. (R. 59-60.) On the

national level, in 1977 outdoor advertising revenues totalled

$461,757,084, see Outdoor Advertising Expenditures, inside cover page

(Leading National Advertisers. Inc., 1978); prior five-year comparisons

had shown that outdoor advertising industry revenues rose 41.4% bet-

ween 1970 and 1975, with 8.3% of that growth between 1974 and 1975.

Ayer Media Facts 2 (1976-77). As for the sheer number of industry

signs, a 197S publication stated the presence of 270,000 standardized

structures in 9000 communities across the United States. The First

Medium 10 (Institute of Outdoor Advertising. 1975).

17

CONCLUSION

Probable jurisdiction should be noted and the case set

down for plenary consideration on its merits.

Respectfully submitted,

CARL W. PETERSON, JR.

Hancock, Estabrook, Ryan,

Shove & Hust

One Mony Plaza

Syracuse, New York 13202

WILLIAM H. ALLEN

MICHAEL A. SCHLANGER

Covington & Burling

888 Sixteenth Street, N.W.

Washington, D.C. 20006

Attorneys for Appellant

May 1978

la

APPENDIX A

STATE OF NEW YORK

COURT OF APPEALS

Modjeska Sign Studios, Inc.,

Appellant,

VS.

Peter A. A. Berle, Individually,

and as Commissioner of the De-

partment of Environmental

Conservation, &c.,

Respondent,

Charles A. Dale, Jr., as

President &c., Outdoor

Advertising Association of

New York, &c.,

Proposed Intervenor-Appellant.

JASEN, J.:

At issue on this appeal is whether the State, having en-

acted legislation regulating advertising signs and structures

in the Catskill and Adirondack Parks, may, after the ex-

piration of a 6-1/2 year amortization period, require the

removal of nonconforming signs without compensation.

Section 9-0305 (subd [1]) of the Environmental Con-

servation Law provides that to ensure the natural beauty of

the Catskill and Adirondack Parks, advertising signs and

structures, for which a permit is not obtained, are

prohibited except accessory signs and signs located within

the limits of an incorporated village. Any signs erected

within the Parks as of May 26, 1969, which are not in con-

formance with the regulations promulgated to implement

section 9-0305 (see 6 NYCRR 195), were required to be

removed by January 1, 1976. (§ 9-0305S, subd [1]).

2a

Plaintiff owns approximately 96 outdoor advertising signs

or billboards situated within the Catskill Park. Admittedly,

none of these signs conforms to the regulations

promulgated pursuant to section 9-0305. Seeking therefore

to enjoin the removal of its signs, plaintiff, only two weeks

before the expiration of the amortization period, com-

menced the present action to declare section 9-0305 un-

constitutional on the ground that it constitutes a taking for

which compensation must be provided.

Special Term denied plaintiff's motion for a preliminary

injunction and granted summary judgment for the defen-

dant, declaring section 9-030S of the Environmental Con-

servation Law to be constitutional. The Appellate Division

unanimously affirmed.

Having reaffirmed today our prior decisions holding

aesthetics to be a valid basis for the exercise of the police

power (see Suffolk Outdoor Adv. Co. vy. Hulse,

NY 2d |decided herewith]), we proceed to a con-

sideration of plaintiff's contention that section 9-0305 of

the Environmental Conservation Law constitutes a taking

requiring that monetary compensation be given to owners

of nonconforming signs removed from the Catskill Park.

The power which the State may exercise over private

property spans a wide spectrum. The State may choose

merely to regulate the use of land pursuant to the police

power or to “‘take”’ or physically acquire property pursuant

to the power of eminent domain. (French Inv. Co. vy. City of

New York, 39 NY2d 587, 593, app dsmd 429 US 990; see

generally, Sax, Takings and the Police Power, 74 Yale L J

36.) The mode of control chosen to effectuate the desired

governinental end has all too often been termed critical to a

determination of the necessity of providing compensation

to property owners adversely effected. Unfortunately,

characterization of the State’s exercise of control over

private property as either a noncompensable regulation or a

3a

compensable taking is often fraught with difficulty. As

Professor Costonis has aptly commented: “Like the

bedeviled horseman, government stands shakilv astride the

police and eminent domain powers as it seeks to ive direc-

tion in iand use affairs.’ (Costonis, ‘‘Fair'’ Com ensation

and the Accommodation Power: Antidotes For the Taking

Impasse in Land Controversies, 75 Colum L Rev 1021.)

Perhaps the difficulty in precisely delineating the boun-

dary between the police and eminent domain powers stems

from the realization that, as a practical matter, any restric-

tion upon the use of property is a deprivation and has a

substantially adverse impact upon market value and, in

that sense, has been loosely described as a “taking’’. (See

Salamar Bldrs. Corp. v Tuttle, 29 NY2d 221, 225.) On the

other hand, it is equally true ‘‘[t}hat hardship is inevitably

the product of police regulation and the pecuniary rights of

the individual, of necessity, must be subordinate to those of

the common weal.’’ (Salamar Bldrs. Corp. y Tuttle, 29

NY2d at p 225, supra.) In the final analysis, charac-

terization of government control over private property turns

usually on a difference of degree and only occasionally on a

difference in kind.

In exercising the police power to provide for the general

welfare of the people, the State may reasonably regulate the

use of private property, notwithstanding the curtailment of

private property rights. (People ex rel. Durham .. Corp. v

LaFetra, 230 NY 429, 442; New York State Thruway Auth.

v Ashley Motor Ct., 10 NY2d 151, 157.) The requirement

that an exercise of the police power be reasonable mandates

not only that the regulation relate to the purpose for which

it was enacted, but also that it does not unreasonably deprive

an owner of all beneficial use of his property. (Salamar

Bidrs. Corp. v Tuttle, 29 NY2d at p 22S, supra.) An exercise

of the police power unreasonably frustrates an ownet’s use

of his property “‘if it renders the property unsuitable for any

reasonable income productive or other private use for

4a

which it is adapted and thus destroys its economic value, or

ail but a bare residue of its value (see, e.g., Lutheran Church

in Amer. vy City of New York, 35 NY2d 121, 130, supra:

Vernon Park Realty vy City of Mount Vernon, 307 NY 493,

499, supra; Shepard vy Village of Skaneateles, 300 NY 115,

118; Arverne Bay Constr. Co. v Thatcher, 278 NY 222, 226,

232, supra; Matter of Eaton vy Sweeny, 257 NY 176, 183; 1

Rathkopf, op cit, § 6.02, at p 6-2)."’ (French Inv. Co. vy City

of New York, 39 NY2d at p 596, supra.) To so frustrate an

owner's use of his property under the guise of the police

power is, in reality, nothing more than a deprivation of

property without due process of law. (N Y Const, Art I, § 6;

U. S. Const, 14th Amdt, § i, French Inv. Co. vy City of New

York, 39 NY2d at p 595, supra; Vernon Park Realty v City

of Mount Vernon, 307 NY 493, 499, 1 Rath«xopf, Law of

Zoning and Planning [4th ed], § 4.02.)

Turning to an analysis of the statute involved in the

present case, we believe it helpful to view, at the outset, the

effect of this statute from the perspective of an owner of

land upon which a billboard has been erected. Formulated

in this setting, the critical inquiry becomes whether section

9-0305 of the Environmental Conservation Law renders an

owner's property unsuitable for any use for which it is

adapted, thereby destroying its economic value.

Viewed from this perspective, the restrictions placed

upon the use of property by section 9-030S of the En-

vironmental Conservation Law do not rise to the level of a

“taking” or confiscation without due process of law. In

reaching this conclusion, we borrow from the analysis em-

ployed in two recent cases, French Inv. Co. vy. City of New

York (supra) and Penn Central vy. City of New York (42

NY2d 324).

In French, which involved an amendment to the New

York City Zoning Resolution purporting to create a

Special Park District, we were confronted, as we are again

Sa

today, with a challenge to regulation of the use of private

property. The amendment to the New York City Zoning

Resolution rezoned two private parks in the Tudor City

residential complex in Manhattan as public parks. By

rezoning the property exclusively as public parks, the City

precluded any residential or office building development.

Finding that the zoning amendment prohibited ‘‘all

reasonable income productive or other private use of the

property’’, we held the amendment violative of due process.

(39 NY2d at pp 590-591, supra.)

Although the zoning amendment in French did permit

the transfer of development rights from the parks to other

areas in Manhattan, they did not attach to specific parcels.

Thus, we characterized these rights as “floating develop-

ment rights, utterly unusable until they could be attached

to some accommodating real property, available by hap-

penstance of prior ownership, or by grant, purchase, or

devise, and subject to contingent approvals of ad-

ministrative agencies.”” (39 NY2d at pp 597-598, supra.)

Because of the uncertainty of future realization of these

rights, we rejected the contention that the amendment did

not deprive the property owner of all rights in his property.

Analogous to French is our more recent decision in Penn

Central vy City of New York (42 NY2d 324), invoiving a

provision of the Administrative Code of the City of New

York, which, as applied to Grand Central Terminal,

prohibited the erection of an office tower over the existing

structure. Characterizing landmark regulation as unlike

either zoning or eminent domain, we held that such

regulation does not violate due process as long as the land-

owner is allowed a reasonable return on his property. (42

NY 2d at pp 330-331, supra.)

In contrast to the zoning amendment at issue in French,

the landmark regulation in Penn Central did not deprive

the property owner of the ability to use the regulated land

6a

in a manner which would ensure a reasonable return on its

investment. Also unlike the amendment in French, the

regulation in Penn Central provided for the transfer of

development rights to other parcels in the area, a number

of which were already owned by Penn Central. Con-

sequently, the uncertainty of future economic realization

which plagued the French amendment was absent in Penn

Central.

Although the regulation of billboards presents a

somewhat different problem than those previously en-

countered in French and Penn Central, the analytical

framework developed in those cases is useful in resolving

whether a landowner who has erected billboards on his

property is deprived of the use of his property by a

regulation prohibiting the maintenance of such billboards.

Drawing upon this analysis, we are of the opinion that,

regardless of whether a legislative pronouncement is

denominated a zoning ordinance, a landmark regulation,

or more broadly, as an exercise of the police power, the

critical test of its constitutionality remains whether the

challenged legislation deprives a property owner of all

reasonable use of his property. To be distinguished,

however, are instances of the exercise of the governmental

power of eminent domain in which there is a true ‘“‘taking”

of the property.

Applying this test in the present case, we conclude that

the regulation of billboards does not deprive a property

owner of all reasonable use of his property. Section 9-0305

of the Environmental Conservation Law does not, as did the

zoning amendment in French, place upon the property

owner an affirmative requirement—a burden that the land

be utilized exclusively as a park open to the public. Instead,

this regulation merely places upon the landowner, and

therefore upon his lessee, a particular negative restric-

tion—that billboards alone may not be maintained upon

specified property. On this analysis, it cannot be said that

7a

the prohibition of billboards deprives landowners or their

lessees of all reasonable use of their property.

Thus, the logical corollary to this conclusion is that

lessees of property upen which the maintenance of bill-

boards has been prohibited have not been unreasonably

deprived of property in violation of due process of law. Cer-

tainly a lessee cannot be said to possess a property interest

greater than that of the fee owner. By merely entering into a

lease specifically for the purpose of erecting a billboard, a

lessee is not immunized from regulation of billboards under

the police power. A lessee stands in no better position than

that of the property owner. If the property owner is not

deprived of all reasonable use of his property by an exercise

of the police power, then neither may the lessee claim that

he was. For this reason, we cannot agree with plaintiff's

contention that section 9-0305 of the Environmental Con-

servation Law unreasonably deprives it of property without

due process of law.

Although we do not believe that plaintiff is entitled to

monetary compensation for the removal of nonconforming

billboards, we are of the opinion that a regulation requiring

the immediate removal of billboards without compensation

in some instances might be an unconstitutional deprivation

of property. In reaching this conclusion, we are not un-

mindful of our previous decisions in which we have held

that outdoor signs and billboards located along the New

York State Thruway may be prohibited and removed

without compensation. (See New York State Thruway

Auth. v Ashley Motor Ct., 10 NY2d 151, supra; Whitmier

& Ferris Co. v State of New York, 20 NY2d 413.) These

decisions were premised, however, upon concern for the

safety of motorists traveling along the Thruway.

While it is true that aesthetics, in itself, constitutes a valid

basis for the exercise of the police power just as safety does

(Suffolk Outdoor Adv. Co. v Hulse, NY2d ____

(decided herewith]; Matter of Cromwell vy Ferrier, 19 NY2d

8a

263; People y Goodman, 31 NY2d 262; Rochester Poster

Adv. Co. vy Town of Brighton, 49 AD2d 272; 1 Anderson,

New York Zoning Law and Practice [2d ed], §§ 7.97, 11.54; 6

N Y Jur, Zoning and Planning Laws, § 123), the public

benefit gained from the immediate implementation of a

regulation enacted pursuant to the police power to ef-

fectuate these objectives may not necessarily be of equal

significance. Certainly, a billboard which serves as a

menace to the safety of motorists should be removed

without delay. In such a case, the public benefit gained by

immediate implementation of an exercise of the police

power far outweighs the concomitant financial injury suf-

fered by the affected billboard and property owners.

In contrast to a safety motivated exercise of the police

power, a regulation enacted to enhance the aesthetics of a

community generally does not provide a compelling reason

for immediate implementation with respect to existing

structures or uses. True, the public will benefit from a more

aesthetically beautiful community, but absent the urgency

present in a safety-motivated regulation, the immediate

benefit gained does not outweigh the loss suffered by those

individuals adversely affected. As always, an exercise of the

police power must be reasonable. (French Inv. Co. v City of

New York, 39 NY2d at p 59S, supra; Salamar Bldrs. Corp.

v Tuttle, 29 NY2d at p 225, supra; 1 Rathkopf, Law of

Zoning and Planning [4th ed], §4.02, supra.) While we do

not believe that compensation is required, we do believe

that it would have been unreasonable to require, solely for

aesthetic purposes, the immediate removal of the billboards

prohibited in the present case.

Fortunately, rather than adopting a regulation requiring

the immediate removal of nonconforming billboards

without compensation, the Legislature has chosen to

provide an amortization period as a means of ameliorating

the burden cast upon affected billboard owners. The con-

cept of amortization evolved as a hoped for solution to the

9a

tension between the ideal of comprehensive zoning and

contemporary notions of due process. At the outset, even

zoning laws prospective in operation only were looked at

with a jaundiced eye. Understandably, attempts to apply a

zoning ordinance retroactively faced far greater resistance.

(See Comment, The Abatement of Pre-existing Non-

conforming Uses under Zoning Laws: Amortization, 57

NW L Rev 323.) Consequently, zoning ordinances were

enacted to control only new land uses. As for existing non-

conforming uses, it was hoped that they would gradually

disappear. However, as Professor Anderson has observed:

‘It became axiomatic that old uses never die.’’ (Anderson,

Amortization of Nonconforming Uses—A Preliminary Ap-

praisal of Harbison v City of Buffalo, 10 Syr. L Rev 44; see

Comment, The Abatement of Pre-existing Nonconforming

Uses Under Zoning Laws: Amortization, supra.)

As a middle ground between prospectively and retroac-

tively applied zoning laws, the concept of amortization

emerged. By limiting the period during which an existing

nonconforming use may be continued, a balance is struck

between an individual’s interest in maintaining the prevent

use of his property and the general welfare of the com-

munity sought to be advanced by the zoning ordinance.

Thus, by permitting a limited period during which an

existing nonconforming use may be continued, rather than

requiring its termination immediately, amortization

provides an owner with an opportunity to recoup his in-

vestment and avoid substantial financial loss. (See

generally, ALI Model Land Development Code, Art 4,

Discontinuance of Existing Land Uses, 142, 146 [1975]; 2

Anderson, New York Zoning Law and Practice [2d ed],

§6.47; Ann., Nonconforming Uses—Amortization, 22 ALR

3d 1134; Anderson, Amortization of Nonconforming

Uses—A Preliminary Appraisal oj Harbison v City of Buf-

falo, supra; Holme, Billboards and On-Premises Signs:

Regulation and Elimination Under the Fifth Amendment,

10a

1974 Inst. on Planning, Zoning, and Eminent Domain 247;

Comment, The Abatement of Pre-existing Nonconforming

Uses Under Zoning Laws: Amortization, supra. ).

In Matter of Harbison v City of Buffalo (4NY 2d 553), in-

volving an ordinance requiring the termination of a

cooperage business within a period of three years, we

sustained the constitutionality of the concept of amor-

tization. As long as the amortization period is reasonable, it

should be upheld. (See Ann., Nonconforming Uses—Amor-

tization, 22 ALR 3d 1134, supra; 82 Am Jur 2d, Zoning and

Planning, § 188.) Whether an amortization period is

reasonable is a question which must be answered in light of

the facts of each particular case. (See Ann., Nonconforming

Uses—Amortization, 22 ALR 3d 1134, supra.) Certainly, a

critical factor to be considered is the length of the amor-

tization period in relation to the investment. (See Los

Angeles vy Gage, 127 Cal App 2d 442; National Adv. Co. v

County of Monterey, 1 Cal 3d 875, cert den 398 US 946.)

Naturally, as the financial investment increases in dimen-

sion, the length of the amortization period should

correspondingly increase. Similarly, another factor con-

sidered significant by some courts is the nature of the non-

conforming activity prohibited. Generally a shorter amor-

tization period may be provided for a nonconforming use as

opposed to a nonconforming structure. (See, e.g., Gurnee v

Miller, 69 Ill App 2d 248.)

In essence, however, we believe the critical question

which must be asked is whether the public gain achieved by

the exercise of the police power outweighs the private loss

suffered by owners of nonconforming uses. (See, e.g., Grant

v Mayor and City Council of Baltimore, 212 Md 301.) While

an owner need not be given that period of time necessary to

permit him to recoup his investment entirely (see Comment,

The Abatement of Pre-existing Nonconforming Uses Under

Zoning Laws: Amortization, at p 332, supra), the amor-

tization period should not be so short as to result in a sub-

——e

lla

stantial loss of his investment. (See Harbison v City of Buf-

falo, 4 NY2d 553, 563; People v Miller, 304 NY 105, 109.) If

an owner can show that the loss he suffers as a result of the

removal of a nonconforming use at the expiration of an

amortization period is so substantial that it outweighs the

public benefit gained by the legislation, then the amor-

tization period must be held unreasonable.

In determining what constitutes a substantial loss, a

court presented with a challenge to a prohibition of

billboards similar to the statute in this case should look to,

for example, such factors as: initial capital investment, in-

vestment realization to date, life expectancy of the in-

vestment, the existence or nonexistence of a lease

obligation, as well as a contingency clause permitting ter-

mination of the lease. As a general rule, most regulations

requiring the removal of nonconforming billboards and

providing a reasonable amortization period should pass

constitutional muster. In concluding as we do, we note that

courts in a number of other jurisdictions have passed

favorably upon legislative pronouncements requiring

removal of nonconforming billboards within amortization

periods of varying lengths. (See, e.g., Murphy Inc. v Board

of Zoning Appeals, 147 Conn 358 [2 years]; National Adv.

Co. vy. County of Monterey, 1 Cal 3d 875, cert den 398 US

946 [1 year]; Western Outdoor Adv., Co. y. City of Miami,

256 So 2d 556 [S years]; Art Neon Co. v City and County of

Denver, 488 F2d 118, cert den 417 US 932 [2 to S years].)

Because of the procedural posture in which this case

comes to us, we are unable to determine whether, as ap-

plied, the 6-1/2 year amortization period provided in sec-

tion 9-030S of the Environmental Conservation Law is

unreasonable. It is clear that in granting summary

judgment for the defendant, both the trial court and the

Appellate Division concluded, as a matter of law, that the

Legislature may constitutionally require the removal of

billboards pursuant to the police power without com-

12a

pensating those owners adversely affected. As a result, the

reasonableness of the amortization period, as a question of

fact, was never addressed by either the parties in opposition

to or support of the cross-motion for summary judgment or

by the courts. For this reason, we believe a remand for an

immediate hearing is required to provide plaintiff with an

opportunity to establish, if it can, that the statutory amor-

tization period of six and one-half years is unreasonable, as

applied.

In reaching our conclusion, we reject plaintiff's con-

tention that section 88 of the Highway Law, enacted pur-

suant to the Federal Highway Beautification Act of 1965

(23 USC § 131) requires that compensation be provided for

the removal of billboards located within 660 feet of

federally-aided highways. By choosing to provide com-

pensation for billboards removed to beautify federally-

aided highways, the Legislature did not relinquish its

authority to promote general welfare under the police

power without compensating property owners adversely af-

fected by the regulation.

Finally, we similarly reject plaintiff's contention that sec-

tion 9-030S of the Environmental Conservation Law is

violative of the First Amendment guarantee of free speech.

(See Suffolk Outdoor Adv. Co. v Hulse, NY2d

___|decided herewith ].)

Accordingly, the order of the Appellate Division should

be reversed and the case remanded to Supreme Court,

Albany County, for further proceedings in accordance with

this opinion.

13a

ste

Order reversed, with costs, and the case remitted to

Supreme Court, Albany County, for further proceedings in

accordance with the opinion herein. Appeal by “‘Proposed

Intervenor’ Dale dismissed, with costs, upon the ground

that it does not lie. Opinion by Jasen, J. All concur.

Decided December 21, 1977

14a

APPENDIX B

STATE OF NEW YORK SUPREME COURT

APPELLATE DIVISION THIRD DEPARTMENT

MODIJESKA SIGN STUDIOS, INC.,

Appellant,

- against -

PETER A. A. BERLE, as Commissioner of the Department

of Environmental Conservation

of the State of New York,

Respondent,

-and-

CHARLES A. DALE, JR., as President and on

Behalf of the Outdoor Advertisine Association

of New York, an Unincorporated Association,

Proposed Intervenor-Plaintiff-Appellant.

Before:

HON. HAROLD E. KOREMAN,

Presiding Justice

HON. LOUIS M. GREENBLOTT,

HON. A. FRANKLIN MAHONEY,

HON. ROBERT G. MAIN,

HON. J. CLARENCE HERLIHY,

Associate Justices.

APPEAL by plaintiff from an order and judgment of the

Supreme Court at Special Term (Harold J. Hughes, J.), en-

tered August 23, 1976 in Albany County, which denied

plaintiff's motion for a preliminary injunction restraining

defendant from enforcing section 9-0305 of the En-

vironmental Conservation Law, granted defendant's cross

motion for summary judgment dismissing the complaint

and declared section 9-0305 to be constitutionally valid; ap-

peal by the proposed intervenor from so much of said order

15a

and judgment as denied his motion to intervene in the ac-

tion as a plaintiff.

January 20, 1977. 29865

MODIJESKA SIGN STUDIOS, INC., Appellant,

v.

PETER A.A. BERLE, as Commissioner of the Department

of Environmental Conservation of the State of New York,

Respondent,

and 68

CHARLES A. DALE, JR., as President and on Behalf of

the Outdoor Advertising Association of New York, an

Unincorporated Association,

Proposed Intervenor-Plaintiff-Appellant.

Order and judgment affirmed, without costs. Appeal by

proposed intervenor-plaintiff dismissed, as moot, without

costs.

Opinion per MAHONEY, J.

KOREMAN, P.J., GREENBLOTT, MAIN and

HERLIHY, JJ., concur.

JAECKLE, FLEISHMANN & MUGEL (Henry W. Killeen,

III, of counsel), for Charles A. Dale, Jr., proposed intervenor-

plaintiff-appellant, 700 Liberty Bank Building, Buffalo, New

York 14202.

OPINION FOR AFFIRMANCE

2986S

MAHONEY, J.

Plaintiff is the owner of approximately 96 outdoor ad-

vertising signs over 95% of which are located within 660

feet of federally-aided highways passing through the Cat-

skill Park. Section 9-030S5 of the Environmental Con-

loa

servation Law prohibits the erection and/or maintenance of

advertising signs and structures within the Catskill and

Adirondack Parks without a written permit of the Depart-

ment of Environmental Conservation but provides that all

such signs within the Catskill Park as of May 26, 1969 may

be continued without permit until January 1, 1976. All par-

ties agree that all 96 of plaintiff's signs are ineligible for

permits under rules promulgated by the Department (6

NYCRR 195) and, accordingly, on January 1, 1976 were

subject to removal.

Plaintiff commenced this action almost six years sub-

sequent to the effective date of the predecessor to section 9-

0305 and only two weeks before the date written permission

from the Department was a requisite to prevent sign

removal. Thereafter, plaintiff moved for a preliminary in-

junction restraining the enforcement of section 9-0305 of

the Environmental Conservation Law on the ground that it

is unconstitutional, alleging, inter alia, that section 88 of

the Highway Law requires payment of just compensation tor

the removal of signs located within 660 feet of federally-

aided roads. Defendant cross-moved for an order

dismissing the complaint.

We turn first to plaintiff's contention that section 88 of

the Highway Law requires payment of just compensation

for the removal of all signs in the Catskill Park located

within 660 feet of federally-aided highways. While it is true

that the Federal Highway Beautification Act of 1965 (U.S.

Code, tit. 23, §§ 131, 136, 319) declared it to be a national

policy that states should seek to establish control of outdoor

advertising by prohibiting erection and maintenance of out-

door advertising in noncommercial areas, and, further, that

any taking of such signs or structures by the states should

result in the payment of compensation (U.S. Code, tit. 23, §

131, subd. [g}), it is not true that compliance by the states

was mandatory. In fact, the Beautification Act provides

17a

that if a state does not make legislative provision for such

control and payment, it shall lose 10% of the federal high-

way funds which would otherwise be apportioned to such

state. Therefore, since New York did enact section 88 of the

Highway Law in response to the previously passed

Beautification Act, the question posited is whether section

88 committed this State to a program of compensation for

dismantled advertising signs, the Beautification Act and

section 88 of the Highway Law being statutes in pari

materia, or if New York by enacting section 9-0305 of the

Environmental Conservation Law can, and, in fact, did

choose a different legislative approach in providing an

amortizaton period rather than payment of compensation.

Posed differently, did this State by passing section 88 of the

Highway Law mandating the payment of compensation for

commercial sign discontinuance in the Catskill Park, in

response to the Federal Act, relinquish its right to act in the

Same area pursuant to its police powers? In our view, the

State did not. While we find no New York case on point, the

case of Markham Advertising Co. y. State (439 P. 2d 248

|Wash.], app. dsmd. 393 U.S. 316) is remarkedly similar to

the facts herein. In Markham, advertising companies

challenged a state act providing for the regulation of out-

door signs, which Act provided for amortization rather

than compensation, on the ground that the Beautification

Act of 1965 compelled the payment of compensation. In

rejecting this contention the Markham court stated, “If

Congress had intended the provisions of 23 U.S.C. § 131 ***

to be mandatory on the states, there would have been no

neeG to attach a monetary penalty to noncompliance’”’ (id.

at 257). We agree.

A reading of section 9-0305 readily reveals an aesthetic

purpose to conserve the naturai beauty of the Catskill Park

and to preserve and regulate the Park for the public use and

general welfare of the peoples of this State (People v. Good-

man, 31 N Y 2d 262). Since the thrust of the subject statute

18a

is the accomplishment of legitimate goals for public pur-

poses, it is regulatory not prohibitory. It does not bar out-

door advertising. It requires a permit, thus insuring

regulatory control of a State asset. That this type of outdoor

sign regulation is a proper and valid exercise of the police

power has ample support in the decisional law (People v.-

Goodman, supra; Whitmier & Ferris Co. y. State of New

York. 20 N Y 2d 413: Terrace Hotel Co. v. State of New

York, 19N Y 2d 526; Matter of Cromwell v. Ferrier, 19 N Y

2d 263; New York State Thruway Auth. vy. Ashley Motor

Court, 10 N Y 2d 151; Rochester Poster Adv. Co. vy. Town of

Brighton, 49 A D 2d 273). However, legislation whose

legitimacy is measured against an aesthetic purpose must

meet the test of reasonableness. That test, in turn, can be

evaluated in the setting of its implementation. The Adiron-

dack and Catskill State Parks are constitutionally protected

preserves (N.Y. Const., art. XIV) wherein special material

and cultural values exist which are deserving of preser-

vation for future generations. Thus, objects, such as out-

door advertising structures, that offend the eye and detract

from the natural beauty of the setting are legitimate targets

of legislation requiring their removal providing the totality

of the means employed is reasonable (People v.Goodman,

supra). Plaintiff's challenge to the means employed herein

embodies the complaint that to take such structures

without monetary compensation to alleviate all economic

loss is an unconstitutional taking of private property in

violation of the restraints of the Fifth and Fourteenth

Amendments of the Federal Constitution and sections 6

and 7 of Article I of the New York State Constitution. This

contention is meritless.

The Court of Appeals has consistently held that the State

need not pay any compensation where signs are regulated

pursuant to the State's police power. In New York State

Thruway Auth. v. Ashley Motor Court (supra) it was held

that the police power extends to all the great public needs

Wii eden Acti wrt Ww aa

19a

and if the means employed to regulate existing offending

signs are reasonable, there can be no objection to their em-

ployment on the ground that “the rights to private property

are curtailed’’. Similarly, in Whitmier & Ferris Co. v. State

of New York (supra) our highest court stated that offending

signs abutting the Thruway could be constitutionally

removed without the payment of compensation. As noted in

both Ashley Motor Court and Whitmier & Ferris,

billboards and advertising signs are of little value and small

use unless great highways bring the travelling public within

view of them, and their enhanced value when they are seen

by large numbers of people was created by the State in the

construction of the roads and not by the signs’ owners. In

this context, then, this court shall not balance the economic

advantages between compensation and amortization,

noting only that a reasonable period of amortization to

enable one to recoup his investment has been held to be

constitutionally valid (Matter of Harbison v. City of Buf-

falo, 4 N Y 2d 553). It is enough to note that the State,

despite the passage of section 88 of the Highway Law, is not

compelled to appropriate outdoor advertising signs pur-

suant to that section and pay compensation to the sign

owners. The state can and has elected to cause offending

sign removal within the Catskill Park by employing its

police powers in a manner that is reasonable and fair.

Whatever economic value plaintiff's 96 signs have can

largely be attributed to the natural beauty of the Catskill

Park preserve that attracts motoring tourists and it was not

unreasonable to require plaintiff to remove the non-

qualifying signs over a period of six and one-half years to

insure the continuity of priceless aesthetic values.

Plaintiff's contention that section 9-0305 of the En-

vironmental Conservation Law is unconstitutional because

it violates the First Amendment guarantee of free speech is

without merit. Despite the extension of the First Amend-

20a

ment protections to include commercial speech (Virginia

State Bd. of Pharmacy vy. Virginia Citizens Consumer

Council, _. U.S. _[May 24, 1976]), regulation of the

same has not been precluded. Regulatory enactments that

advance legitimate governmental purposes and do not

foreclose alternate channels of communicating the same in-

formation are not constitutionally infirm. Herein, section 9-

0305 does not prohibit outdoor advertising signs within the

Park, it regulates them so as to control ugliness, distrac-

tions and deterioration (M«*ter of Cromwell v. Ferrier.

supra) which can result from the maintenance of offending

signs. The same information can be conveyed to the public

by newspaper, radio or television advertising.

Similarly, plaintiffs equal protection argument is

meritless. As we said in Matter of Greenburgh No. 11

Federation of Teachers, Local 1532, Amer. Federation of

Teachers, ALF-CIO vy. Helsby (41 A D 2d 329, app. dsmd.

33 N Y 2d 664) “‘[t}he Legislature may make classifications

*** without infringement of the equal protection guaran-

tee, and its discretion in this regard is broad and will not be

disturbed *** provided only that it shall not be palpably

arbitrary (Matter of Dorn ‘‘HH"' vy. Lawrence ‘II’, 31 NY

2d 154 [app. dsmd. 409 U.S. 1121])” fid. at 331). Section 9-

0305 seeks to regulate outdoor signs that offend aesthetic

values. Such legislation is neither an improper

classification of signs nor is it ‘‘palpably arbitary”’.

Next the legislation under attack is not violative of

plaintiff's civil rights because it may deprive plaintiff of in-

come from a lawfully established business. The police

power is the “‘least limitable of the powers of government

and * * * extends to all the great public needs’’ (People v.

Nebbia, 262 N.Y. 259, 270, affd. 291 U.S. 502) and if the

end desired and the means employed by the sovereign to at-

tain those ends are reasonable, it is no objection that ‘‘the

rights of private property are thereby curtailed.” (New York

State Thruway Auth. vy. Ashley Motor Court, supra, p. 157.)

2la

One of the distinguishing features of the police power is the

preferment of the public interest over the private interest.

Having concluded that Special Term was correct in grant-

ing defendant’s cross-motion for a declaration that section

9-0305 is constitutional, the issues concerning the denial of

the motions for a preliminary injunction and for in-

tervention have been rendered moot.

The order and judgment should be affirmed, without

costs. The appeal by proposed-intervenor-plaintiff should

be dismissed, as moot, without costs.

22a

APPENDIX C

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ALBANY

MODIJESKA SIGN STUDIOS, INC.,

Plaintiff,

-against-

PETER A. A. BERLE, Individually, and as

Commissioner of the Department of

Environmental Conservation of the State

of New York,

Defendant.

(Supreme Court, Albany County Special Term, Part I,

March 26, 1976)

(Calendar No. 12)

(JUSTICE HAROLD J. HUGHES, Presiding)

HUGHES, J.:

Plaintiff has moved for a preliminary injunction

restraining defendant from enforcing section 9-0305 of the

Environmental Conservation Law which regulates the use

of advertising signs in the Catskill Park. The motion was

brought on by an order to show cause which temporarily

restrained the enforcement of this statute pending deter-

mination of the motion. Defendant has cross-moved for an

order dismissing the complaint and has requested that the

ae ee et

23a

motion be treated as one for summary judgment pursuant

to subdivision (c) of CPLR 3211. Finally, one Charles A.

Dale, Jr., president of the Outdoor Advertising Association

of New York, has moved to intervene as an additional par-

ty plaintiff.

The essential facts do not appear to be in dispute. Plain-

tiff is the owner of approximately 97 outdoor advertising

signs located in the Catskill Park, all of which were erected

prior to the enactment of section 9-0305 of the En-

vironmental Conservation Law. Apparently, over 95 per

cent of these signs are located within 660 feet of various

Federally-aided primary highways located in the Catskill

Park.

Section 9-0305 prohibits the erection of advertising signs

or structures within the Catskill and Adirondack Parks, ex-

cept under written permit from the Department of En-

vironmental Conservation. It provides that signs within the

Catskill Park existing prior to May 26, 1969, the date when

the section was made applicable to the Catskill Park, may

continue to be maintained without a permit until January 1,

1976. The parties agree that plaintiff's signs are not eligible

for permits under rules promulgated by the Department of

Environmental Conservation (See 6 NYCRR Part 195), and,

hence, on January 1, 1976 the signs were subject to removal.

Plaintiff commenced this action seeking: (i) a declaratory

judgment that section 9-0305 of the Environmental Con-

servation Law is unconstitutional on several grounds in-

cluding that it requires the removal of the advertising signs

without just compensation; (ii) a declaratory judgment that

section 88 of the Highway Law requires payment of just

compensation for the removal of those signs that are

located within 660 feet of any interstate or Federally-aided

primary highways; and (iii) a permanent injunction pre-

venting defendant from removing plaintiff's signs without

paying just compensation.

24a

Before addressing plaintiff's constitutional arguments,

let us turn to plaintiff's contention that section 88 of the

Highway Law requires payment of just compensation for

the removal of the majority of plaintiff's signs which are

located within 660 feet of Federally-aided primary high-

ways running through the Catskill Park.

Section 88 was enacted to implement the Federal High-

way Beautification Act (L. 1968, ch. 581, §1). Subdivision 7

thereof provides that compensation is to be paid for the

taking of certain outdoor advertising signs and displays.

Basically, compensation is to be paid for those signs that

were lawfully in existence at the time they became subject

to the provisions of section 88. Section 88 was enacted in

1968 and became effective on May 10, 1969.

Section 9-030S of the Environmental Conservation Law,

which prohibits the erection of advertising signs in the Cat-

skill Park without a permit, is silent with respect to whether

compensation must be paid for the removal of pre-existing

signs which are not eligible to receive permits. Assuming

for purposes of this motion that virtually all of plaintiff's

signs would qualify for the payment of compensation under

the provisions of section 88 of the Highway Law, the issue

presented is whether the provisions of section 9-0305 of the

Environmental Conservation Law require a different result.

Section 88 of the Highway Law was enacted by chapter

581 of the Laws of 1968. As indicated above, subdivision 7

of this section explicitly provides for the payment of com-

pensation for the taking of certain pre-existing advertising

signs. Section 9-0305 was made applicable to the ad-

vertising signs in the Catskill Park by chapter 1052 of the

Laws of 1969, and makes no mention of the payment of

compensation. Chapter 1052, in fact, provided for an amor-

tization period to be fixed individually for each pre-existing

advertising sign in the Catskill Park. This would appear to

clearly show a legislative intent to provide an amortization

period as an alternative to the payment of compensation for

pe eee

25a

pre-existing advertising signs in the Catskill Park. Chapter

392 of the Laws of 1970 further amended this section to

provide a fixed amortization period of approximately 6-1/2

years rather than the original, individually determined,

amortization periods. This would appear to further

strengthen the conclusion that the Legislature specifically

considered the issue of compensation for the removal of

pre-existing signs in the Catskill Park and concluded that

an amortization pericd rather than monetary compensation

was to be provided. This conclusion is supported by

language in the decision of the Appellate Division, Fourth

Department in Rochester Poster Adv. Co. y. Town of Brighton

(49 A D 2d 273, 276):

“. .. the enactment by the Legislature of section

9-0305 of the Environmental Conservation

Law—limiting the continuance of nonaccessory

signs without compensation—. . .”’

-_@

While the decision in Rochester Poster Adv. Co. did not in-

volve the construction of section 9-0305, the Appellate

Division did specifically consider the effect of section 88 of

the Highway Law in a similar situation and the quoted

language indicates that the Court implicitly construed sec-

tion 9-030S as precluding the payment of monetary com-

pensation.

The court finds, then, that section 9-030S does not

require the payment of compensation for the removal of ad-

vertising signs for which compensation would otherwise be

required by section 88 of the Highway Law. Plaintiff's

argument that this conclusion means that under the

provisions of the Federal Highway Beautification Act

(U.S.C., tit. 23) this will require a ten per cent reduction in

Federal highway funds payable to the State is irrelevant.

For even if plaintiff's analysis of the effect of the court’s

construction of the pertinent statutory provisions on the

amount of Federal aid is correct, that cannot, of course,

26a

change the meaning of the language that the Legislature

has enacted.

Turning now to the constitutional objections that have

been raised, plaintiff first contends that seciton 9-0305

violates the Fifth and Fourteenth Amendments of the Unit-

ed States Constitution and section 7 (subd.[a]) of article I

of the State Constitution which prohibit the taking of

property by the State without the payment of just com-

pensation. It is clear, however, that the State may regulate

the erection and maintenance of outdoor advertising under

the police power (see, e.g., Railway Express v. New York,

366 U.S. 106; People vy. Goodman, 31 N Y 2d 262; and New

York State Thruway Auth. v. Ashley Motor Court, 10 N Y

2d 151). In fact, the predecessor to present section 9-0305

was upheld as a valid exercise of the police power many

years ago by the Appellate Division, Third Department, in

People vy. Sterling (257 App. Div. 560). The opinion in a

subsequent appeal involving the same parties implied that

the statute could not be sustained as an exercise of the

police power for aesthetic considerations alone, although

the court found it unnecessary to decide that constitutional

issue ( People v. Sterling, 267 App. Div. 9). Subsequent

decisions have resolved that issue, and it is now well settled

that outdoor advertising signs may be regulated pursuant

to the police power for aesthetic purposes alone (see, e.g.,

People vy. Goodman, 31 N Y 2d 262, supra; People v. Stover.

12 N Y 2d 462; and Matter of Cromwell vy. Ferrier, 19 N Y

2d 263). Many statements have been written explaining this

result in terms of the importance of aesthetic values to

society, but perhaps no one has expressed this view more

memorably than Chief Judge Pound in what has been

described as an ‘‘oratorical flight”’:

‘Beauty may not be queen but she is not an out-

cast beyond the pale of protection or respect. She

may at least shelter herself under the wing of

safety, morality or decency.”’ (People v. Sterling,

Nenerarencitteesteecc iinet as ir ne ne se et oh tin Ro 2 ew ae

27a

267 App. Div. 9, 12, supra, quoting Perlmutter v.

Greene, 259 N. Y. 327, 332).

Of course, as with every enactment under the police

power, the means adopted in the statute in question must

be reasonably related to the community policy sought to be

implemented and must not be unduly oppressive (Matter of

Tyson, Inc. y. Tyler, 24 N Y 2d 671; People vy. Bunis, 9N Y

2d 1; and People v. Munoz, 9 N Y 2d 51). ‘The exercise of

the police power should not extend to every artistic con-

formity or nonconformity. Rather, what is involved are

those aesthetic considerations which bear substantially on

the economic, social and cultural patterns of a community

or district” ( Matter of Cromwell v. Ferrier, supra, p. 272).

In creating the Catskill Park and in extending the ap-

plicability of section 9-0305’s regulation of outdoor ad-

vertising signs to the Park, the Legislature has recognized

the special natural beauty of the land in the Park and has

acted to conserve and preserve the area for future

generations in its relatively unspoiled and undeveloped con-

dition (Environmental Conservation Law, § 9-0305,

subd. 1). The special importance of the Catskill Park is em-

phasized by the protection afforded it by the State Con-

stitution (art. XIV). This is not a case where the Legislature

has gone too far in the name of aesthetics (see People v.

Stover, 12 N Y 2d 462, 468, supra). The statute has a valid

objective under the police power, the means employed are

reasonably related to this objective and, under all the cir-

cumstances, the legislation is not arbitrary, unreasonable

or oppressive.

Plaintiff further contends that the statute is un-

constitutional because all of its signs were in existence prior

to the effective date of the applicability of the statute to the

Catskill Park. The police power, however, is the “‘least

limitable of the powers of government’’ (People v Nebbia,

262 N.Y. 259, 270, affd. 291 U.S. 502). Even assuming that

28a

the plaintiff possessed valid and subsisting property rights

which the statute in question abrogated, this would not ap-

pear to provide a sufficient basis for deciaring the statute in

question unconstitutional (Whitmier & Ferris Co. v. State

of New York, 20 N Y 2d 413; Terrace Hotel Co. v. State of

New York. 19 N Y 2d 526; and New York State Thruway

Auth. y. Ashley Motor Court. 10 N Y 2d 151, supra). In any

event, the statute in question actually allows a 6-1/2 year

amortization period for pre-existing signs. Nonconforming

uses may be eliminated by amortization over a reasonable

period of time (Matter of Off Shore Rest. Corp. v. Linden,

30 N Y 2d 160, 164; Matter of Harbison v. City of Buffalo, 4

N ¥ 2d 553, 561) and a 6-1/2 year period would seem to be

a reasonable amortization period for such outdoor ad-

vertising signs (see, e.g., People v. Goodman, 31 N Y 2d

262, supra [2-year amortization period]; Rochester Poster

Adv. Co. v. Town of Brighton, 49 A D 2d 273, supra [34-

month amortization period )).

Plaintiff also contends that the statute in question

violates the First Amendment guarantee of free speech. In

New York State Thruway Auth. vy. Ashley Motor Court (10

N Y 2d 151, supra, mot. to amend remittitur granted 10 NY

2d 814), the Court of Appeals specifically held that just

such an outdoor advertising statute did not infringe upon

the constitutional guarantees of freedom of speech and

freedom of the press under the First Amendment. However,

subsequent to that decision, the United States Supreme

Court has now made it clear that commercial speech is protec-

ted by the First Amendment (Virginia State Bd. of Phar-

macy vy. Virginia Citizens Consumer Council, Inc.,

U.S.___[May 24, 1976}],48 L Ed. 2d 346). It is also

clear, however, tnat some forms of commercial speech

regulation are still permitted. Restrictions with respect to

time, place and manner, for example, are still permissible,

provided that they are justified without reference to the

content of the regulated h, that they serve a significant

29a

government interest, and that in so doing they leave open

ample alternative channels for communication of the in-

formation ( Virginia State Bd. of Pharmacy v. Virginia

Citizens Consumer Council, Inc., 48 L Ed. 2d, supra, pp.

363, 364). In the present case, there is no regulation with

respect to the content of the advertising, the regulation is

intended to serve the important governmental interest im-

plicit in the exercise of the police power, and there are am-

ple other channels of communication available in the af-

fected area such as radio, television and newspapers. This

court simply does not believe that the First Amendment,

however cherished its protections may be, will be applied to

preclude the State from adopting reasonable measures to

control the “‘ugliness, distraction and deterioration” (Mat-

ter of Cromwell y. Ferrier, 19 N Y 2d 263, supra, p. 272)

which can result from the erection of advertising signs and

billboards.

The court also finds plaintiffs equal protection argument

to be without merit. Exact equality is not a prerequisite to

equal protection within the meaning of the Fourteenth

Amendment Worvell y. Illinois, 373 U.S. 480; and At-

chinson, Topeka & Santa Fe R. R. Co. v. Matthews, 174

U.S. 96).

Since the plaintiff has failed to establish a “clear right”

to the relief requested, its motion for a preliminary in-

junction must be denied (7A Weinstein-Korn-Miller, N. Y.

Civ. Prac., $6301.18).

Finally, the court finds that the Outdoor Advertising

Association of New York is not entitled to intervene as a

party plaintiff as of right since the interests of the

Association have been adequately represented by the plain-

tiff in this action and the action does not involve a

disposition of or claim for damages to property in which the

Association may be adversely affected by the judgment

(CPLR 1012, subd.fa]). The court will not exercise its

30a

discretion to allow the Association to intervene by per-

mission pursuant to CPLR 1013 since the intervention

would serve to unduly delay the determination of the ac-

tion.

Plaintiff's motion for a preliminary injunction and the

motion of the Outdoor Advertising Association of New

York to intervene are denied, and the cross motion of the

defendant for summary judgment declaring the subject

statute to be valid is granted, all without costs.

Dated: August 4, 1976.

et ee Age

3la

APPENDI¥ D

Remittitur

COURT OF APPEALS

STATE OF NEW YORK

The Hon. Charles D. Breitel, Chief Judge, Presiding

3. No. 544

Modjeska Sign Studios, Inc.,

Appellant,

VS.

Peter A.A. Berle, Individually, and as Commissioner of the

Department of Environmental

Conservation, &c.,

Respondent,

Charles A. Dale, Jr., as

President &c., Outdoor

Advertising Association of

New York, &c.,

Proposed _Intervenor-Appellant.

* * *

The Court, after due deliberation, orders and adjudges

that the order is reversed, with costs, and the case remitted

to Supreme Court, Albany County, for further proceedings

in accordance with the opinion herein. Appeal by

‘Proposed Intervenor” Dale dismissed, with costs, upon

the ground that it does not lie. Opinion by Jasen, J. All con-

cur.

The Court further orders that the papers required to be

filed and this record of the proceedings in this Court be

remitted to the Supreme Court, Albany County,

32a

there to be proceeded upon according to law.

I certify that the preceding contains a correct record of

the proceedings in this appeal in the Court of Appeals and

that the papers required to be filed are attached.

Donald M. Sheraw

Deputy Clerk of the Court

Court of Appeals, Clerk's Office, Albany, December 21,

1977.

— ee se

33a

APPENDIX E

3. Mo. No. 144

Modjeska Sign Studios, Inc.,

Appellant,

vs.

Peter A.A. Berle, Individu-

ally and as Commissioner &c.,

Respondent.

& 3 other actions:

Suffolk Outdoor Advertising

Co., Inc. v. Hulse.

Collum Signs, Inc., v. Town

Board Town of Southampton.

Frank J. Polacek Jr. v. Town

Board Town of Southampton.

Motion by Modjeska Sign Studios, Inc. and Suffolk Out-

door Advertising Co., Inc. for reargument of the appeals

and for stays or, in the alternative, to amend the remittiturs

herein denied with twenty dollars costs and necessary

reproduction disbursements.

Decision Court of Appeals Feb. 22, 1978.

34a

APPENDIX F

COURT OF APPEALS OF THE STATE OF NEW YORK

MODIJESKA SIGN STUDIOS, INC.,

Plaintiff-Appellant,

-VS-

PETER A.A. BERLE, Individually, and as

Commissioner of the Department of Environmental

Conservation of the State of New York,

Defendant-Respondent.

INDEX NO. 8341-76

Case #544

NOTICE OF APPEAL TO THE SUPREME COURT OF

THE UNITED STATES

NOTICE is hereby given that MODJESKA SIGN

STUDIOS, INC., the plaintiff above named, hereby ap-

peals to the Supreme Court of the United States from the

judgment and order of the Court of Appeals of the State of

New York dated December 21, 1977, together with the

decision of the Court of Appeals denying reargument in

said action dated February 22, 1978, upon which judgment

was duly entered with the Clerk of the Supreme Court,

County of Albany on March 3, 1978.

This appeal is taken pursuant to 28 U.S.C.S. 1257(2).

HANCOCK, ESTABROOK, RYAN, SHOVE

& HUST

Carl W. Peterson, Jr., of Counsel

Counsel for Plaintiff

One MONY Plaza

Syracuse, New York 13202

Dated: March 30, 1978.

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NOTICE OF APPEAL TO THE SUPREME COURT OF

THE UNITED STATES

STATE OF NEW YORK

SUPREME COURT COUNTY OF ALBANY

MODIJESKA SIGN STUDIOS, INC.,

Plaintiff-Appellant,

-against-

PETER A.A. BERLE, Individually, and as

Commissioner of the Department of Environ-

mental Conservation of the State of New

York,

Defendant-Respondent.

Index No. 8341-76

NOTICE is hereby given that MODJESKA SIGN

STUDIOS, INC., the plaintiff above named, hereby ap-

peals to the Supreme Court of the United States from the

judgment and order of the Court of Appeals of the State of

New York dated December 21, 1977, together with the

decision of the Court of Appeals denying reargument in

said action dated February 22, 1978, upon which judgment

was duly entered with the Clerk of the Supreme Court,

County of Albany on March 3, 1978.

This appeal is taken pursuant to 28 U.S.C.S. 1257(2).

Dated: May 11, 1978

HANCOCK, ESTABROOK, RYAN, SHOVE & HUST

Carl W. Peterson, Jr., of Counsel

Counsel for Plaintiff

One Mony Plaza

Syracuse, New York 13202

Tel. No. (315) 471-3151

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APPENDIX G

§ 9-0101. Definitions

The following words and phrases, when used in this ar-

ticle, unless otherwise expressly stated, are defined as

follows:

2. The “Catskill park’’ shall include all lands located in

the counties of Greene, Delaware, Ulster and Sullivan

within the following described boundaries, to wit: Begin-

ning in Ulster county at the intersection of the easterly line

of the Hardenburgh Patent with the southerly bounds of

the Rondout Reservoir; thence running southwesterly along

the easterly line of Great Lot 4 of the Hardenburgh Patent

to the southeasterly corner of lot one of the East Allotment,

east division of Great Lot 4; thence northwesterly along the

southerly bounds of lots one, 7, 8, 14, 17, 22, 26, 33, 37 and

46 of said East Allotment, east division of Great Lot 4 and

along the southerly bounds of lots 67, 49, 48, 47, 46, 45, 44,

43, 42 and 41 of the Middle Allotment, east division of

Great Lot 4 to the center of the Neversink creek; thence

northerly along the center of the Neversink creek to the

southeasterly corner of lot 37 of the West Allotment, east

division of Great Lot 4; thence northwesterly along the

southerly bounds of lots 37, 27, 22, 11 and 6 of said West

Allotment, east division of Great Lot 4 to a point in the

easterly line of the town of Rockland in Sullivan county;

thence southerly along the easterly line of the town of

Rockland in Sullivan county to the northeasterly corner of

the town of Liberty; thence northwesterly along the north-

erly line of the town of Liberty in Sullivan county to the

southwesterly corner of lot 120 of the East Allotment, mid-

dle division of Great Lot 4; thence northwesterly along the

southerly bounds of lots 119 and 118 of the East Allotment,

middle division of Great Lot 4 to a point in the center of the

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Willowemoc creek; thence westerly down the center of the

Willowemoc creek to its confluence with the Beaver Kill;

thence northwesterly down the center of said Beaver Kill to

the southwesterly line of the town of Colchester in Delaware

county; thence northwesterly along said southwesterly line

of the town of Colchester in Delaware county to the westerly

bank of the east branch of the Delaware river; thence along

the westerly bank of the said east branch of the Delaware

river and the westerly bounds of the Pepacton reservoir to

its intersection with the mouth of the Bush Kill at or near

the village of Arkville; thence up along the center of said

Bush Kill to the New York Central Railroad; thence along

the said New York Central Railroad easterly to the line bet-

ween the counties of Delaware and Ulster; thence north-

easterly along that line to the southerly line of Greene

county; thence northwesterly along the southerly line of

Greene county to the southwesterly corner of Great Lot No.

21. Hardenburgh Patent; thence northeasterly along the

westerly line of said Great Lot No. 21; Hardenburgh Patent

to the south bank of the Batavia Kill; thence along the

southerly bank of the Batavia Kill easterly to the west line

of the State Land Tract; thence northerly, easterly and

southerly along the line of the said State Land Tract to the

line of the Hardenburgh Patent; thence easterly and

southerly along the general easterly line of the Har-

denburgh Patent to the southwest corner of the town of

Saugerties in Ulster county; thence easterly along the

southerly line of the town of Saugerties to the westerly

bounds of the New York State Thruway; thence southerly

along the westerly bounds of the said New Ycik State

Thruway to the northerly bounds of the Esopus creek; thence

in a general westerly direction up and along the northerly

bounds of said Esopus creek to its intersection with the

southwesterly line of the town of Ulster; thence north-

westerly to the southeast corner of the Hurley Patentee

Woods Allotment; thence in a general southwesterly direc-

tion along the southeasterly line of the Hurley Patentee

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Woods Allotment to the northerly line of the town of Mar-

bletown; thence northwesterly along said northerly line of

the town of Marbletown to the town of Olive; thence south-

westerly along the line between the towns of Olive and Mar-

bletown to the line of the town of Rochester; thence north-

westerly along the line between the towns of Olive and

Rochester to the point where the Mettacahonts creek

crosses the same flowing easterly; thence southwesterly

parallel with the northwesterly line of the town of Rochester

to the southerly bounds of the Rondout creek; thence

westerly along the southerly bounds of the Rondout creek

and the southerly bounds of the Rondout Reservoir to the

easterly line of the Hardenburgh Patent, the point or place

of beginning.

§ 9-0305. Signs and advertising in Adirondack and Cat-

skill parks

1. In order to conserve the natural beauty of the Adiron-

dack and Catskill parks, to preserve and regulate the said

parks for public uses for the resort of the public for

recreation, pleasure, air, light and enjoyment, to keep them

open, safe, clean, and in good order for the welfare of

society, and to protect and conserve the investment of the

state in forest lands, campsites and other interests in real

property in said parks, no person shall erect or maintain

within the boundaries thereof any advertising sign, ad-

vertising structure or device of any kind, except under writ-

ten permit from the department. The provisions of this sec-

tion shall not apply to signs erected or maintained upon a

parcel of real property in connection with the principal

business or principal businesses conducted thereon and

which advertise such business or businesses only, or to signs

within the limits of an incorporated village.

As to signs, structures or devices existing within the Cat-

skill park on May 26, 1969, and which require a permit

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39a

pursuant to this section, the same may continue to be main-

tained without permit until January 1, 1976 provided that

the property owner or owner of such sign, structure or

device registers the same with the department on or before

January 1, 1972.

As to signs, structures or devices existing on May 31, 1972

in those portions of the Adirondack park added thereto by

chapter six hundred sixty-six of the laws of nineteen hun-

dred seventy-two, and which require a permit pursuant to

this section, the same may continue to be maintained

without permit until January 1, 1978, provided that the

property owner or owner of such sign, structure or device

registers the same with the department on or before

January 1, 1975.

2. Whenever a sign, structure or device has been erected

or is being maintained in violation of the provisions of sub-

division one of this section, the commissioner shall cause a

notice of such violation, specifying as nearly as may be the

nature and location of such sign, structure or device, to be

personally served upon the owner of record of the real

property upon which the same is located, hereinafter

referred to as the property owner. In addition, a copy of

such notice shall be personally served upon the owner of

such sign, structure or device, if his name and address and

the fact that he is the owner is clearly indicated thereon.

3. The property owner or the owner of such sign, struc-

ture or device shall remove the same within ten days from

the date of the last service of such notice or copy thereof as

hereinabove specified. In the event of the failure of the

property owner or the owner to remove such sign, structure

or device within such ten day period, the commissioner may

cause an agent or employee of the department to enter

upon the property where such sign, structure or device is

located and to remove the same.

40a

4. No action for trespass or damages shall lie on account

of entry upon private property by an authorized agent or

employee of the department engaged in carrying out any of

the provisions of this section.

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