Volume 78 - Number 45 / April 15 -21, 2009
West and East Village, Chelsea, Soho, Noho, Little Italy, Chinatown and Lower East Side, Since 1933


City’s signage restrictions upheld by federal judge

By Albert Amateau

Federal Judge Paul A. Crotty has ruled that city regulations dating back to 1940, limiting the size, location and lighting of advertising signs and billboards, do not violate the freedom of commercial speech provisions of the U.S. Constitution.

In the 60-page decision handed down on March 31, Crotty dismissed two related lawsuits filed in 2006 by Clear Channel Outdoor, Inc. and Metro Fuel LLC.

The challenges focused on advertising signs that are not accessory to the businesses on the property where the signs are located. The challengers contended that recent administrative regulations have so many loophole exemptions that they compromise the city’s intent to regulate billboards and signs.

Clear Channel, one of the world’s largest media companies, operates 236 signs in the city; eighty-four of them are “arterial” signs, visible from the city’s main highways, and range in size from 315 square feet to 11,258 square feet; but most are either 960 square feet or 1,200 square feet. Clear Channel earns about $10 million a year from all of its signs.

The zoning resolution prohibits arterial signs greater than 500 square feet within 200 feet of — and visible from — a highway. The administrative rules adopted in 2005 also require operators to submit documents registering all their outdoor signs and sign structures within 900 feet of — and visible from — a highway.

Clear Channel challenged the registration rules as “draconian and punitive,” charging that they are intended to eliminate all arterial signs, even those that have been legal for decades.

Metro Fuel operates 440 panel signs in the city, each 69 inches tall by 48 inches wide, with posters illuminated from behind and located mostly near parking garages, and the rest in other mixed-use locations.

The amended zoning resolution and administrative rules limit advertising signs illuminated like Metro’s to three large commercial zoning categories; but in four other types of zoning — three manufacturing and another commercial zone — where Metro Fuel also has signs, the rule prohibits signs that are lit like Metro’s. The company challenged the provisions that exclude its illuminated panels from many of their current locations.

Eric Hecker, attorney from Metro, said last week that he intends to appeal Crotty’s decision upholding the provisions.
“The judge misapplied the law,” said Hecker, adding, “The city has 20,000 illuminated signs of its own that are exempt from the rules — that’s a fact. And that exemption does not apply to us.”

Hecker referred to the city contract with Cemusa, Inc. to install street furniture, like bus shelters, newsstands and automatic public toilets, with backlit advertising similar to Metro’s. Many are in place, and the city expects to receive more than $1 billion over the 20 years of the agreement, according to the judge’s opinion.

However, Crotty said that Metro has the option to keep its signs in the zones where the rules prohibit them by changing the way they are lit.

The challengers note that the city permits a billboard on the Long Island Expressway advertising the Fresh Direct food delivery service. The city, however, has ruled in an administrative action that the sign is really accessory because 51 percent of the message on the billboard directs attention to businesses on the lot where the sign structure is located.

Crotty noted that the city has indicated it will enforce the zoning resolution against itself and other government agencies — including the Metropolitan Transportation Authority and the Port Authority, as well as Amtrak — where illegal signs and billboards are located within city limits.

“The exceptions and inconsistencies in this case simply do not undermine the zoning resolution to the point of unconstitutionality,” Crotty said.

Regarding the street furniture exemptions, Crotty said, “The city has a substantial interest in protecting neighborhood aesthetics. The regulations directly advance that interest, and they are not more extensive than necessary.”

Regarding billboards on the city’s arterial roadway system, Crotty said, “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.”

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