
    Suffolk Outdoor Advertising Co., Inc., Respondent-Appellant, v Theodore O. Hulse et al., Constituting the Town Board of the Town of Southampton, Appellants-Respondents. Collum Signs, Inc., Respondent-Appellant, v Town Board of the Town of Southampton, Appellant-Respondent. Frank J. Polacek, Jr., Doing Business as Behrle Outdoor Advertising, Respondent-Appellant, v Town Board of the Town of Southampton, Appellant-Respondent.
    Argued October 11, 1977;
    decided December 21, 1977
    
      POINTS OF COUNSEL
    
      Richard E. De Petris and Emil R. De Petris for appellants-respondents.
    I. The zoning ordinance provisions relating to billboards do not violate freedom of speech. (People v Stover, 12 NY2d 462, 375 US 42; People v Goodman, 31 NY2d 262; Matter of Cromwell v Ferrier, 19 NY2d 263; Whitmier & Ferris Co. v State of New York, 20 NY2d 413; New York State Thruway Auth. v Ashley Motor Ct., 10 NY2d 151; Matter of Gibbons v O’Reilly, 44 Misc 2d 353; Town of Huntington v Estate of Schwartz, 63 Misc 2d 836; Modjeska Sign Studios v Berle, 55 AD2d 340; Linmark Assoc, v Willingboro, 431 US 85; Young v American Mini Theatres, 427 US 50.) II. The zoning ordinance provision which requires removal of nonconforming billboards after a period of time is not unconstitutional on its face. (Matter of Harbison v City of Buffalo, 4 NY2d 553; Matter of Off Shore Rest. Corp. v Linden, 30 NY2d 160; Matter of County of Nassau [Cohen], 34 AD2d 412, 27 NY2d 744; Town of Schroeppel v Spector, 43 Misc 2d 290; People v Goodman, 31 NY2d 262; Rochester Poster Adv. Co. v Town of Brighton, 49 AD2d 273; Modjeska Sign Studios v Berle, 55 AD2d 340; Village of Larchmont v Sutton, 30 Misc 2d 245; Philanz Oldsmobile v Keating, 51 AD2d 437.) III. Plaintiffs cannot attack the zoning ordinance provision which requires removal of nonconforming billboards, on the ground that it is unconsitutional as applied to plaintiffs’ billboards, without exhausting the administrative remedy available under the ordinance. (Old Farm Rd. v Town of New Castle, 26 NY2d 462; Janas v Town Bd. of Town of Fleming, 51 AD2d 473; Hopewell Gardens v Town of East Fishkill, 76 Misc 2d 234; Rose v City of New Rochelle, 19 Misc 2d 599; People v Calvar Corp., 286 NY 419; Matter of Sun Oil Co. v Young, 37 AD2d 969, Philanz Oldsmobile v Keating, 51 AD2d 437; Elkort v 490 West End Ave. Co., 38 AD2d 1; Matter of Harbison v City of Buffalo, 4 NY2d 553; Matter of County of Nassau [Cohen], 34 AD2d 412, 27 NY2d 744.) IV. The zoning ordinance provision which requires removal of nonconforming billboards is not in contravention of statute. (Rochester Poster Adv. Co. v Town of Brighton, 49 AD2d 273; Art Neon Co. v City & County of Denver, 488 F2d 118, 417 US 932; Whitmier & Ferris Co. v 
      
      State of New York, 20 NY2d 413; Modjeska Sign Studios v Berle, 55 AD2d 340.) V. The fifth cause of action of plaintiff Suffolk Outdoor which seeks damages for interference with plaintiffs’ property rights does not state a cause of action for damages. (McCauslan v City of New York, 183 Misc 954; Rottkamp v Young, 21 AD2d 373, 15 NY2d 831; Matter of Charles v Diamond, 41 NY2d 318; French Investing Co. v City of New York, 39 NY2d 587.) VI. Plaintiff Suffolk Outdoor is not entitled to a preliminary injunction. (Modjeska Sign Studios v Berle, 55 AD2d 340; Miner v City of Yonkers, 14 Misc 2d 535; Paliotto v Town of Islip, 22 AD2d 930, 16 NY2d 871; Mangels v Incorporated Vil. of Rockville Centre, 270 App Div 903; Commander Oil Corp. v Town of Oyster Bay, 41 Misc 2d 926.) VII. Plaintiffs are not entitled to final judgment on defendants’ motions to dismiss the complaint. (Mareno v Kibbe, 32 AD2d 825; Rovello v Orofino Realty Co., 40 NY2d 633; People v Mancuso, 255 NY 463; Matter of Demisay, Inc. v Petito, 31 NY2d 896.) VIII. The zoning ordinance provision which prohibits billboards in the Town of Southampton should be declared constitutional as a matter of law. (Matter of Cromwell v Ferrier, 19 NY2d 263; Old Farm Rd. v Town of New Castle, 26 NY2d 462; Boryszewski v Brydges, 37 NY2d 361; St. Lawrence Univ. v Trustees of Theol. School of St. Lawrence Univ., 20 NY2d 317.)
    
      Manly Fleischmann, Carl W. Peterson, Jr., Adelbert Fleischmann, Eugene A. De Nicola and Henry W. Killeen, III, for respondent-appellant.
    I. The prohibition of outdoor advertising in the Town of Southampton violates the right to free speech guaranteed by the Federal and State Constitutions. (Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748; People v Remeny, 40 NY2d 527; Linmark Assoc, v Willingboro, 431 US 85; Bigelow v Virginia, 421 US 809; Follett v McCormick, 321 US 573; N. A. A. C. P. v Button, 371 US 415; Baldwin v Redwood City, 540 F2d 1360; Saia v New York, 334 US 558; La Rocca v Lane, 47 AD2d 243, 37 NY2d 575; Thomas v Collins, 323 US 516.) II. Southampton’s prohibitory ordinance violates the constitutional mandates of due process and just compensation. (Berenson v Town of New Castle, 38 NY2d 102; French Investing Co. v City of New York, 39 NY2d 587; Penn Cent. Transp. Co. v City of New York, 42 NY2d 324; People v Miller, 304 NY 105; Lutheran Church in Amer. v City of New York, 35 NY2d 121; Vernon Park Realty v City of Mount Vernon, 307 NY 493; Pennsylvania Coal Co. v Mahon, 
      260 US 393; City of Buffalo v Michael, 16 NY2d 88; Richards-Dowdle, Inc. v State of New York, 52 Misc 2d 416; Matter of Keystone Assoc, v Moerdler, 19 NY2d 78.) III. The amendment is in conflict with controlling Federal and State legislation and is therefore invalid. (State of Vermont v Brinegar, 379 F Supp 606; Robin v Incorporated 'Vil. of Hempstead, 30 NY2d 347; Markham v Cabell, 326 US 404.) IV. Removal and destruction of plaintiff’s outdoor advertising structures without payment of just compensation would be a violation of plaintiff’s constitutionally protected right to the equal protection of the laws. (Potomac Elec. Power Co. v Fugate, 341 F Supp 887, 409 US 943; Matter of City of New York [Manhattan Civic Center Area], 57 Misc 2d 156, 32 AD2d 530, 27 NY2d 518; Reed v Reed, 404 US 71; San Antonio School Dist. v Rodriguez, 411 US 1; Dunn v Blumstein, 405 US 330.) V. The courts below dismissal of plaintiff’s fifth cause of action was incorrect. VI. A preliminary injunction should issue if further proceedings are ordered by this court.
   OPINION OF THE COURT

Jasen, J.

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

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

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

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

The authority of the State and its political subdivisions to regulate outdoor advertising pursuant to the police power is well settled. (See, e.g., People v Goodman, 31 NY2d 262; New York State Thruway Auth. v Ashley Motor Ct, 10 NY2d 151; People v National White Plains Corp., 299 NY 694; 1 Anderson, New York Zoning Law and Practice [2d ed], § 11.54; 2 NY Jur, Advertising and Advertisements, § 7; 82 Am Jur 2d, Zoning and Planning, § 125; Billboards—Municipal Regulation, Ann., 58 ALR2d 1314.) Certainly, where the primary purpose for which outdoor advertising is regulated is the public health or safety, there is no doubt that the objective of the regulation lies within the permissible bounds of the police power. (See, e.g., New York State Thruway Auth. v Ashley Motor Ct, 10 NY2d 151, supra; Whitmier & Ferris Co. v State of New York, 20 NY2d 413; 1 Anderson, New York Zoning Law and Practice [2d ed], § 11.55.) Although once open to question, it is now equally clear that the regulation of outdoor advertising for aesthetic purposes alone constitutes a valid exercise of the police power. (See Matter of Cromwell v Ferrier, 19 NY2d 263; People v Goodman, 31 NY2d 262, supra; Rochester Poster Adv. Co. v Town of Brighton, 49 AD2d 273; 1 Anderson, New York Zoning Law and Practice [2d ed], §§ 7.07, 11.54; 67 NY Jur, Zoning and Planning Laws, § 123.)

Once it is established that a regulation enacted pursuant to the police power has a valid basis, it need only be shown to sustain its constitutionality that it is reasonably related to the objective for which it was enacted. (Matter of Cromwell v Ferrier, 19 NY2d, at p 272, supra; People v Goodman, 31 NY2d, at p 266, supra.)

Turning to an analysis of the reasonableness of the Southampton ordinance, we note that the facts in the present case are strikingly similar to those in Matter of Cromwell v Ferrier (supra). In Cromwell, the Town of Wallkill adopted a zoning ordinance which implicitly prohibited nonaccessory signs throughout the town. In upholding the constitutionality of the ordinance, we recognized that "[advertising signs and billboards, if misplaced, often are egregious examples of ugliness, distraction, and deterioration.” (19 NY2d, at p 272, supra.) While we cautioned that the police power should not be employed to cure every artistic nonconformity, we nevertheless sustained the ordinance as reasonable since it was substantially related to promoting the general welfare of the community. (19 NY2d, at p 272, supra; see, also, People v Goodman, 31 NY2d, at p 266, supra.)

Just as in Cromwell, the ordinance under attack in this case prohibits nonaccessory billboards and signs. It cannot be seriously argued that a prohibition of this nature is not reasonably related to improving the aesthetics of the community. Nor can it be said that it is oppressive. (See People v Goodman, 31 NY2d 262, supra.) Although prohibiting nonaccessory billboards, the ordinance permits the maintenance of accessory or on-premises billboards, thus providing an operative means of advertising.

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

Although the Southampton ordinance is. constitutional on its face, its validity is also dependent upon its reasonableness, as applied. The underlying issue to be resolved in making this determination is whether the amortization period provided by the ordinance is reasonable. While the purpose of an amortization period is to provide a billboard owner with an opportunity to recoup his investment, an owner need not be given that period of time necessary to permit him to recoup his investment entirely. Nor, however, should the amortization period be so short as to result in a substantial loss of his investment. In this respect, the plaintiffs should be entitled to show that the three-year amortization period provided in the Southampton ordinance is unreasonable, as applied. (See Modjeska Sign Studios v Berle, 43 NY2d 468 [decided herewith].)

However, unlike the statute challenged in Modjeska (supra), the ordinance in this case affords plaintiffs an opportunity to obtain an extension of the amortization period if it can be established that, "as to a particular sign”, the amortization period of three years is unreasonable. (See Building Zone Ordinance No. 26, § 3-110-70.04.) This the plaintiffs concededly failed to do. We believe that the plaintiffs were required to exhaust the administrative remedy available under the ordinance before instituting this action. Until plaintiffs make application to the town board for an extension of the amortization period and the town board renders a determination thereon, we can only speculate as to the total amortization period which plaintiffs may have been granted under the ordinance. Hence, it would be premature for a court to pass upon the reasonableness of the amortization period, as applied.

Lastly, we find no merit to plaintiffs’ claim that the Federal Highway Beautification Act of 1965 (US Code, tit 23, § 131) and section 88 of the Highway Law preclude the removal of nonconforming billboards without compensation. (See Modjeska Sign Studios v Berle, supra.)

Accordingly, the order of the Appelate Division should be modified in accordance with this opinion, and as so modified, should be affirmed, with costs for the defendants. The ordinance is declared valid and the certified question is answered in the negative.

Fuchsberg, J. (dissenting).

I dissent from so much of the majority’s opinion as holds thát the challenged Southampton ordinance is in consonance with the First Amendment. To my mind this measure, which with insubstantial exceptions prohibits nonaccessory billboards anywhere in the town, passes beyond the bounds of a reasonable regulation of the time, place, and manner of expression and constitutes an outright ban on a significant form of communication. Indeed, it is far from certain that it would even allow the use of billboards for political, charitable or religious causes.

In any event, I believe it unnecessary to comment at length upon the progressive fading of the distinction between "commercial” and "noncommercial” speech (see Linmark Assoc, v Willingboro, 431 US 85; Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748), or to restate my grounds for believing that the distinction must be altogether effaced (People v Remeny, 40 NY2d 527, 530 [concurring opn]). Clearly the earlier cases in this area can no longer be accepted uncritically.

Suffice it to say that billboards are essentially neutral vehicles for expression, as open to all kinds of messages as are the racks in a bookstore, the advertising columns in a newspaper, or the stage and screen in a theater. It has long been recognized that these forms of communication, although operated commercially, are entitled to a full measure of First Amendment protection (Erznoznik v City of Jacksonville, 422 US 205; Smith v California, 361 US 147; Grosjean v American Press Co., 297 US 233; cf. Pittsburgh Press Co. v Human Relations Comm., 413 US 376). Of course, aesthetic and environmental preservation are valid goals for municipal planning and, in the exercise of their zoning functions for such purposes, communities have considerable elasticity in deciding where billboards may be placed (cf. Young v American Mini Theatres, 427 US 50). However, the enactment before us, by its exclusion of virtually all nonaccessory billboards throughout the large area encompassed by the town, far exceeds the limits of regulation. I would therefore vote to hold the ordinance, as currently drafted, unconstitutional.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler and Cooke concur with Judge Jasen; Judge Fuchsberg dissents and votes to reverse and declare the ordinance unconstitutional in a separate opinion.

Order modified, with costs to defendants, in accordance with the opinion herein and, as so modified, affirmed. Question certified answered in the negative.  