The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Park Outdoor Advertising of New York, Inc. ("plaintiff" or "Park") filed this action pursuant to 42 U.S.C. § 1983, alleging that defendant The Town of Onondaga, New York ("defendant" or "the Town") violated its right to freedom of speech under the First and Fourteenth Amendments to the United States Constitution. The defendant denies the material allegations of the Complaint.
Both plaintiff and defendant moved for summary judgment. Each opposed the other's motion, and each replied in further support. Oral argument was heard on May 9, 2009, in Utica, New York. Decision was reserved.
The following facts are undisputed.
In April 2006 Park, along with the New York, Susquehanna and Western Railway Corporation ("NYS&W"), submitted an application for a use variance to the Town's Zoning Board of Appeals ("Zoning Board"). By its application for a use variance plaintiff sought permission to erect three single-pole two-faced advertising signs on a certain parcel within the Town. The sign faces would have been fourteen feet by forty-eight feet, with a total height of forty-five feet. This type of sign is commonly known as a billboard. The parcel upon which Park sought to erect the signs was leased by the NYS&W from the Onondaga County Industrial Development Agency ("IDA"). The IDA consented to the use variance. Park entered into a lease agreement with NYS&W related to erecting billboards on the parcel, but the lease payments did not begin until the signs were actually erected.
The only development on the parcel, which is zoned light industrial, is a sporadically-used railroad spur. The parcel, which is adjacent to Interstate 481, is long and narrow, and covered by scrub vegetation. There is a trash burning plant to one side of the parcel, and a quarry or cement plant on the other side of the road. There is some warehousing nearby, but no residential properties. Additionally, the would-be site for plaintiff's billboards is at the far end of the Town.
At the time Park submitted its application for a use variance, Town of Onondaga Local Law ("L.L.") 1-1994 § 33 governed the requirements for sign height, face size, and setback within the Town. The approach of L.L. 1-1994 was permissive; that is, it permitted on-premises signs of certain types. However, it did not specifically address billboards or other off-premises signs, therefore it did not permit them. Hence, after consultation with a Town zoning officer, plaintiff determined it would first apply for a use variance, and, if successful, follow with an application for area (size) and setback variances as necessary.
At some point, plaintiff's application was forwarded to the Onondaga County Planning Board ("County Board") for review. On April 25, 2006, the County Board recommended disapproval of the variance. Its stated reasons were that permitting plaintiff's signs would alter the character of the Interstate corridor and the relatively undeveloped character of the Ram's Gulch area. An additional stated reason was that granting the variance would undermine the integrity of the zoning ordinance, because the Town could rezone the area to permit the proposed use. Further, the County Board recommended that the Town establish billboard sign regulations.
On May 16, 2006, the Zoning Board denied Park's variance request. The resolution stated that plaintiff failed to put forth competent financial evidence to support its claim of unnecessary hardship as required by L.L. § 35-37 to justify a variance. The resolution also stated that allowing the variance would alter the essential character of the neighborhood, pose visual pollution to the area, and encroach on neighboring properties. Further, the resolution stated that the requested variation from the sign ordinance was substantial and the proposed use would pose health and safety concerns to the public and adjacent property owners. Zoning Board members unanimously voted in favor of the resolution denying plaintiff's variance.
On August 7, 2006, after a public hearing, the Town Board enacted a Local Law, 2-2006, imposing a moratorium on off-premises billboard signs for a six-month period during which a review of regulations would be conducted. The moratorium was extended at least once.
The Town Board appointed a committee to undertake a review of whether to allow billboards. The committee consisted of a Town Board member, a Planning Board member, a Zoning Board member, and the Town Attorney. The committee chair was Suzanne W. Belle ("Belle"), a member of the Town Board. After at least two committee meetings, discussions among the committee members, and each member having gone to the site where Park proposed to erect billboards, there was a consensus that billboards should not be permitted in the Town. (O'Connor Aff. Ex. 11, Belle Dep. at 8-19, Doc. No. 11-15.) However, the Town Attorney advised that the Town must allow billboards in some areas. Id. at 20-21. Therefore, the committee drafted a proposed local law that permitted billboards, with significant restrictions. Id. at 22-24. There was dissension on the Town Board regarding the proposed law, and the committee then drafted another proposal that prohibited billboards and off-premises signs throughout the Town. Id. at 24-25.
On October 1, 2007, the Town Board enacted L.L. 8-2007, amending section 33 of L.L. 1-1994 to expressly prohibit billboards and off-site signs. Id. Ex. 10, L.L. 8-2007, Doc. No. 11-14 (hereinafter ...