Opinion
November 6, 1975
Appeal from the Supreme Court, Monroe County, ROBERT J. McDOWELL, J.
Antell, Harris, Githler Calleri (Charles H. Githler, II, of counsel), for appellant.
Harris, Beach Wilcox (Henry W. Williams, Jr., of counsel), for respondent.
Hancock, Estabrook, Ryan, Shove Hust (Carl Peterson, Jr., of counsel), for Richards "Of Course", Inc., amicus curiae. Mazza, Williamson Clune (Robert I. Williamson of counsel), for RHP, Inc., amicus curiae. De Graff, Foy, Conway Holt-Harris (Michael Cunningham of counsel), for Murphy Outdoor Advertising Corp., amicus curiae. Donald A. Campbell for Adirondack Outdoor, Inc., amicus curiae. Jaeckle, Fleischmann Mugel (Adelbert Fleischmann and Brian J. Troy of counsel), for Whitmier Ferris Co., Inc., amicus curiae. Lawrence R. Reich for Griese Advertising-Suburban New York, Inc., amicus curiae. Eugene L. De Nicola for Suffolk Outdoor Advertising Co., Inc., amicus curiae.
Plaintiff has successfully challenged, as violative of its constitutional rights against the taking of property without due process and without just compensation, a sign and zoning ordinance of the Town of Brighton, the application of which gave plaintiff a period of 34 months during which it was permitted to maintain a nonaccessory outdoor advertising billboard after adoption of the ordinance which prohibited such billboard. Although several amici briefs have been submitted addressing themselves to the question of the constitutionality of local ordinances which totally exclude billboards from a regulated area, we do not believe that this case requires or that the record presents a sufficient showing for us to reach that broad issue (see People v Goodman, 31 N.Y.2d 262; Matter of Cromwell v Ferrier, 19 N.Y.2d 263). The proof adequately demonstrates that, with respect to plaintiff's billboard, the application of the ordinances is a legitimate exercise of the police power. The legislative enactments themselves carry with them "an exceedingly strong presumption of constitutionality" (Matter of Malpica-Orsini, 36 N.Y.2d 568, 570). The uncontroverted evidence established that the single billboard which is the subject of this action is composed of four, interconnected panels each 12 feet by 25 feet and is located about 25 feet from the pavement of Route 15, a heavily traveled four-lane highway which is the major route for traffic going south from Rochester. The billboard location is about a half mile south of Rochester in a well developed residential and commercial area north of Henrietta and is between two points at which roads come into Route 15. The billboard, which is constructed so that two of its panels are visible to northbound traffic and two are visible to southbound traffic, is 600 feet from a traffic control signal at the junction to the north and 150 feet from a traffic control signal at the junction to the south. In addition to the foregoing proof there was testimony by a police officer with 14 years' experience on the Town of Brighton police force that the signs which make up the billboard create a traffic safety hazard by virtue of its location. In these circumstances the application of the ordinances, which now prohibit the continuance of the billboard in question, represents a permissible exercise of the police power in the protection of the public safety. As a legitimate exercise of that power, the sign and zoning ordinances do not run afoul of the due process and just compensation clauses (Goldblatt v Hempstead, 369 U.S. 590).
Nor do we find in the enactment of section 88 High. of the Highway Law an implied revocation of the delegated authority under which the town adopted the ordinances in question. In addition to the fact that revocation by implication is not favored, the enactment by the Legislature of section 9-0305 Envtl. Conserv. of the Environmental Conservation Law — limiting the continuance of nonaccessory signs without compensation — casts serious doubt upon any such claim. Further, we do not necessarily reject the conclusion of the Justice at Trial Term that the saving provision of subdivision 9 of section 88 High. of the Highway Law maintains the validity of the challenged ordinances.
Since the billboard in question was in existence at the time the ordinances became effective, it remains to be determined whether the amortization period of 34 months provided thereby was a reasonable termination period; if it was, the legislation is not invalid. "With regard to prior nonconforming structures, reasonable termination periods based upon the amortized life of the structure are not, in our opinion, unconstitutional" (Matter of Harbison v City of Buffalo, 4 N.Y.2d 553, 561). The proof established that the billboard had existed for 52 years at the time of the hearing in this action. An officer of plaintiff was unable to fix the cost of the structure; he did testify however that present replacement cost would be $3,000 to $3,500. The improvement had been subject to a regular maintenance program but he "guessed" that it had been totally depreciated on the corporate books. In view of these circumstances, and the traffic safety hazard posed by the billboard, we conclude that the 34-month period during which the structure was permitted to remain as a nonconforming use represented a reasonable reconciliation of the public and private interests and an adequate time for amortization of plaintiff's investment.
Judgment should be reversed and judgment granted declaring that the Town of Brighton Sign Ordinance and section 42-29 of the Zoning Ordinance of the Town of Brighton, as applied to plaintiff's property, are constitutional and valid as providing a reasonable period of amortization of plaintiff's investment.
MARSH, P.J., CARDAMONE, SIMONS and GOLDMAN, JJ., concur.
Judgment unanimously reversed without costs and Town of Brighton Sign Ordinance and section 42-29 of the Zoning Ordinance of the Town of Brighton declared constitutional and valid in accordance with opinion by DEL VECCHIO, J.