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January 5, 2005.

THE TOWN BOARD OF THE TOWN OF WINDHAM and HON. DOMINCK CAROPRESSO, Town of Windham Code Enforcement Officer, Defendants.

The opinion of the court was delivered by: DAVID HURD, District Judge



  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. Div. 2004).

  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 challenge:
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 Rent" signs.
. . .
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 dispute.

  B. Standing

  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' facial ...

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