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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 809

## Text

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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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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.

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1056%3A1. Public record. Not legal advice.