The opinion of the court was delivered by: DAVID HURD, District Judge
MEMORANDUM-DECISION and ORDER
Clear Channel Outdoor, Inc. and William Herbert ("plaintiffs")
commenced the instant action pursuant to 42 U.S.C. § 1983 arising
out of defendants' alleged violation of plaintiffs' First
Amendment rights. Plaintiffs moved for summary judgment pursuant
to Fed.R.Civ.P. 56(a). Defendants, the Town Board of the Town
of Windham (the "Town") and the Honorable Dominick Caropresso,
Town of Windham Code Enforcement Officer, cross-moved pursuant to Fed.R.Civ.P. 56(b) or in the alternative, pursuant
to Fed.R.Civ.P. 12(b) for failure to state a claim upon which
relief may be granted. Oral argument was heard on March 26, 2004
in Albany, New York. Decision was reserved.
In the 1960s plaintiff Clear Channel Outdoor, Inc. erected four
billboards on the plaintiff William Herbert's property by lease
agreement. The property is in the Town of Windham, Greene County,
and also within the Catskill State Park. Despite the passage of
time and some litigation concerning the signs, they were still
standing when the Town adopted a new sign ordinance in 1988, and
a new site plan review law in 1989. Any changes in the signs, or
the erecting of new signs, were subject to ordinance provisions.
Plaintiffs changed the signs, or erected new signs, without
complying with the provisions of the ordinance.
In December of 2002, defendants commenced an action against
plaintiffs in Justice Court for violation of the sign ordinance
and the site plan. Plaintiffs then filed a state Supreme Court
action seeking declaratory and injunctive relief from the Town's
enforcement action. In a ruling from the bench on the combined
actions, the Honorable Thomas Spargo clearly delineated the
questions before him. Plaintiffs' state action did not address
any substantive aspects of the ordinance, but rather; (1) whether
plaintiffs' signs were subject to the ordinance; (2) whether
plaintiffs were subject to the Town's site plan review law
despite alleged procedural defects; and (3) whether the Town's
adoption of the ordinance was procedurally improper. (Doc. No.
14, Transcript of October 27, 2003, Honorable Thomas Spargo,
Greene County Courthouse). Justice Spargo held that the laws in
question could not be challenged on procedural grounds, the
billboards at issue were new, and therefore the ordinance and the law in question applied to plaintiffs. The
court also found that the ordinance and law were violated, and
imposed a $500 fine. That decision was affirmed at Clear Channel
Outdoor, Inc. v. Town Bd. of Windam, 9 A.D.3d 802 (N.Y.App.
The instant action brought pursuant to § 1983 presents a
substantive challenge to the Town's sign ordinance. More
specifically, plaintiffs bring a First Amendment based facial
challenge claiming that the sign ordinance is over broad, vague,
an impermissible prior restraint, and that it improperly favors
some speech over others.
As with most legislation, the ordinance states its purpose,
defines its terms, lists the regulations and requisite
procedures, and finally relates the legal consequences of
violating its provisions. According to the ordinance preamble,
the health, safety morals and general welfare of the Town's
residents will be promoted through the regulating and restricting
of signs of all types.
It is intended to protect the property values, create
a more attractive economic and business climate,
enhance and protect the physical appearance of the
community, preserve scenic and natural beauty, and
provide a more enjoyable and pleasing community. It
is further intended to reduce sign distractions and
obstructions that may contribute to traffic
accidents, reduce hazards that may be caused by signs
overhanging or projecting over public rights of way,
provide more open space, and curb the deterioration
of natural beauty and community environment.
Permits are required for new signs and for alterations of
existing ones. In Article II the ordinance defines "sign" as:
any structure or part thereof, or any devise attached
to, painted on, or represented on the exterior of a
building or other structure or an outdoor free
standing devise, upon which is depicted any letter,
word, model, banner, flag, pennant, insignia,
decoration, devise, or representation used as, or
which is in the nature of, an announcement,
direction, advertisement, or other attention
directing devise. A sign does not include the flag, pennant or insignia
of any nation or association of nations or of any
state, city or other political unit, or of any
political, charitable, educational, philanthropic,
civic, professional, or like campaign, drive,
movement or event.
SIGN, TEMPORARY A sign, not exceeding eight (8)
square feet in area, intended to advertise or
publicize an event of a public nature such as
religious, civic, governmental, or fraternal
organization meetings, fund rasing drives, social
events, etc., such event to occur within the
immediate future (within thirty (30) days), at the
close of which such signs will be [of no] further
value and are to be removed by the organization
responsible for their erection, within two (2) weeks
after the event. Also, the decoration of premises
during religious patriotic, or holiday seasons.
The regulations listed in Article III, which apply to all
signs, consist of size, lighting and placement limitations. A few
of the sign regulations are involved in the constitutional
B. A business shall be allowed no more than three (3)
advertising signs and three (3) business signs.
. . .
D. Free Standing signs and signs attached to
buildings shall be of no more than eighteen (18)
square feet in the hamlets, and an additional amount
not to exceed thirty-two feet (32) square feet
outside the Hamlets.
E. The use of portable signs is prohibited except
for: temporary construction, "For Sale" and "For
. . .
J. Business dealing with products having national
emblems, insignias or franchise signs shall comply
with all provisions of this Ordinance, excepting
where specified in writing, the use of a certain sign
by a franchise.
Article IV explains the permit application requirements, and
that the Town Board, or its designee, will grant permits in
accordance with the ordinance. After the payment of a nominal
$3.00 fee, [i]f it shall appear that the proposed sign meets all
requirements of this Ordinance and all of the other
laws an ordinances of the Town of Windham [the Board
or its designee] shall, within twenty (20) days issue
a permit for the erection of the proposed sign.
Permits expire in six months if the proposed sign is not
completed. Following the procedures set forth in Criminal
Procedure Law, violators
shall be guilty of an offense, conviction of which
shall be punishable by a monetary fine not to exceed
Two Hundred and Fifty and 00/100 Dollars and/or a
jail sentence not exceeding fifteen (15) days or
both. Each day that a violation continues shall
constitute a separate offense.
A. Summary Judgment Standard
Summary judgment is granted only if there is no genuine issue
of material fact, and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548 (1986); Silver
v. City Univ., 947 F.2d 1021, 1022 (2d Cir. 1991). If there is
no genuine issue about any material fact, summary judgment is
proper because it avoids needless and costly litigation and
promotes judicial efficiency. Roberts v. Browning,
610 F.2d 528, 531 (8th Cir. 1979); United States v. Porter,
581 F.2d 698, 703 (8th Cir. 1978). The summary judgment procedure is not a
"disfavored procedural shortcut." Rather, it is "an integral part
of the Federal Rules as a whole." Celotex Corp.,
477 U.S. at 327, 106 S. Ct. at 2555. There are no disputed facts for
consideration in this action; accordingly, all parties believe
that summary judgment is a proper vehicle to resolve their
At the threshold, defendants argue that plaintiffs lack
standing to challenge the constitutionality of the sign ordinance
because "a person to whom a statute may constitutionally be applied will not be heard to challenge that
statute on the ground that it may conceivably be applied
unconstitutionally to others, in other situations not before the
Court." Parker v. Levy, 417 U.S. 733, 759, 94 S. Ct. 2547
(1974) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 610,
93 S. Ct. 2908 (1973)). Defendants recite the standard for challenges
to vagueness in the context of an "as-applied" challenge to a
statute. See Village of Hoffman Estates, 455 U.S. at 495 n.
7, 102 S. Ct. at 1191; Parker, 417 U.S. at 756,
94 S. Ct. at 2561 (". . . because the statute is judged on an as applied
basis, one whose conduct is clearly proscribed by the statute
cannot successfully challenge it for vagueness").
Here, plaintiffs do not bring an as applied challenge but a
facial challenge to the ordinance, and argue that the defendants'
legislation effects the First Amendment rights of, not only
themselves, "but all the residents of the Town of Windham, now
and in the future." Facial challenges to statutes still must meet
the constitutional case and controversy requirement and
accordingly, denial of third-party standing is the norm.
Exceptions to this rule in the First Amendment context allow a
plaintiff to challenge a law on its face on the grounds that it
is content-based, that it might chill the First Amendment rights
not only of the plaintiff, but of others not before the court.
Savago v. Village of New Paltz, 214 F. Supp. 2d 252, 254
(N.D.N.Y. 2002) (citations omitted). Moreover, the First
Amendment doctrine of "overbreadth" is an exception to the normal
rule regarding the standards for facial challenges. Virginia v.
Hicks, 539 U.S. 113, 118, 123 S. Ct. 2191, 2196 (2003); see
Members of City Council of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789, 796, 104 S. Ct. 2118 (1984). "Although a
statute or ordinance may be neither vague, over broad, nor
otherwise invalid as applied to the conduct charged against a
particular defendant, he is permitted by the court to raise its
unconstitutional vagueness or overbreadth as applied to other persons in situations not before
the court." Gooding v. Wilson 405 U.S. 518, 92 S. Ct. 1103
(1972); Grayned v. Rockford, 408 U.S. 104, 92 S. Ct. 2294
(1972); Broadrick v. Oklahoma 413 U.S. 601, 93 S. Ct. 2908
(1973); Plummer v. Columbus, 414 U.S. 2, 94 S. Ct. 17 (1973);
Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S. Ct. 2561 (1975).
"The Supreme Court has recognized that parties, like plaintiffs,
with a commercial interest in speech may facially challenge an
ordinance, raising the noncommercial speech interests of third
parties." Metromedia, Inc. v. City of San Diego, 453 U.S. 490,
504 n. 11, 101 S. Ct. 2882 (1981).
This exception to ordinary standing requirements is justified
only by the recognition that free expression may be inhibited
almost as easily by the potential or threatened use of power as
by the actual exercise of that power. New York State Club Assoc.
v. New York, 487 U.S. 1, 108 S. Ct. 2225 (1988). Plaintiffs'