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Southern District Court Upholds City’s Restrictions on Arterial Advertising

outdoor advertising long island expresswayMAS has been involved with signage regulations since the turn of the 20th century, when the New York Times noted that one of the City’s famed retail districts had become a “frightful spectacle, made so more by the wilderness of discordant and shrieking signs.”  MAS even introduced a revision of the building code in 1908 that would regulate billboards for the first time. The problem of signage pollution continues to impact New York’s streetscapes, but recent litigation has affirmed the City’s right to regulate outdoor advertising in favor of traffic safety and aesthetics.

The Southern District of New York held today that New York City may enforce its arterial highway advertising ban, regulate the registration and permitting of existing outdoor arterial signs, and restrict the locations of internally illuminated signs throughout the City.

A number of New York City’s signage regulations were challenged by Plaintiffs Clear Channel Outdoor, Inc., Atlantic Outdoor Advertising, Inc., Scenic Outdoor, Inc., Troystar City Outdoor, Inc., Willow Media, LLC (together, the “Clear Channel Plaintiffs”) and Metro Fuel, LLC.

The Clear Channel Plaintiffs challenged sections of the Zoning Resolution and Administrative code that govern off-site advertising signs. Off-site advertising signs are those that direct attention to a business or service not conducted on the premises on which the sign is located. (These signs are treated differently than accessory use signs, or on-site signs, which direct attention to the premises on which the sign is located).

The challenged sections of the Zoning Resolution state that within 200 feet of an arterial highway, no permitted sign may be larger than 500 square feet and no advertising sign shall be allowed at all.  Existing advertising signs within 200 feet of the arterial highway are treated as legal non-conforming uses under the rule, and are precluded from being reconstructed, altered or relocated.  These sections apply to signs in manufacturing and commercial districts.  The challenged section of the Administrative Code requires all outdoor advertising companies to submit an inventory of their signs and sign structures located within 900 feet and within view of an arterial highway.  The required inventory must include sufficient evidence of the existence and dimensions of signs purported to be legal non-conforming uses.

Metro Fuel’s challenges dealt with the City’s regulation of the placement and illumination of panel advertisements.  The regulations limit the placement of advertisement panels to specific commercial districts, and Metro Fuel challenged the City’s Zoning Resolution because it excluded certain of its existing illuminated panel advertisements from their current location.

Also challenged were the various exceptions to the City’s enforcement of its regulations, including the allowance of arterial advertising on City property, and on property owned by the MTA, the Port Authority and Amtrak, and of advertising similar to that of Metro Fuel on street furniture maintained by a private company under contract with the City.

MAS filed an amicus brief, a brief as a friend of the court, to support the City in its motion for summary judgment and in support of the City’s various regulations.  Specifically, MAS argued that the Zoning Resolution’s arterial highway signage restrictions directly advance New York City’s interests in traffic control and aesthetics, and are no more extensive than necessary to serve those interests.  The court agreed, granting summary judgment for the City.

The Court held that “the City’s zoning regulations, which restrict the location of commercial advertising signs immediately adjacent to its arterial highway system, satisfy the constitutional test for commercial speech restriction and are not unconstitutionally underinclusive.”  The Southern District reasoned that “New York City has substantial interests in restricting outdoor advertising signs near highways, its zoning ordinance will directly advance those interests, and the regulations are not more extensive than necessary” and concluded that exceptions to the ban on off-site commercial arterial advertising do not undermine the constitutionality of the Zoning Resolution.  The Court also stated that the registration and documentation requirements challenged by the Clear Channel plaintiffs are constitutional.

The Court also ruled that “there is no constitutional infirmity with the Zoning Resolution’s location and illumination restrictions that affect Metro Fuel [because the] City has a substantial interest in protecting neighborhood aesthetics, the regulations directly advance that interest, and they are not more extensive than necessary.”  The City’s street furniture contract did not undermine that constitutionality of these provisions.