Agenda - Planning Commission - 05/06/2010

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Zoning Bulletin March 10, 2070 ~ Volume 4) No. 5 ~~ Outdoor LLC; and Willow Media, LLC (collectively, "Clear Channel"). Cleaz Channel owned large (e.g., ranging in size from 315 squaze feet to 11,258 square feet) billboards located near arterial highways in New York City (the "City"). Clear Channel challenged the constitutionality of the City Zoning Resolution §§ 42 to 55 and 32 to 662. These provisions "ban offsite advertising signs within 200 feet of, and within sight of, ar- terial highways in manufacturing and commercial districts." The second case involved the plaintiff, Metro Fuel LLC. Metro Fuel ~ owned smaller "panel" advertising signs. These panel signs were inter- nally illuminated poster advertisements that were approximately 24 square feet. Metro Fuel's signs were placed on: "undeveloped lots, such as parking lots"; "affixed to the front of businesses, usually at or near i ground level"; or "placed inside parking garages near the means of in- gress and egress." Metro Fuel challenged the constitutionality of provi- i sions of the City's Zoning Resolution that "control[led] where it may place its panel advertisements; and how it may illuminate them." More specifically, both Clear Chammel and Metro Fuel (collectively, the "Plaintiffs") alleged that the Ciry's zoning regulations violated their First Amendment rights because the regulations were "unconstitutionally 7mderinclusive." They argued the Zoning Resolution was underinclusive i because: "no meaningful distinctions" existed between their signs and billboards, which faced regulatory enforcement for violation of the Zon- i (~1 ing Resolution, and other signs and billboards that the City permitted- `._ , ~ particularly signs and billboards that the city allowed on city-owned i property: In other words, they maintained that the City violated the First Amendment "protections afforded commercial speech" by distinguishing (in enforcement and/or regulation) between the Plaintiffs' signs or bill- boards and those located on government property. Clear Channel alleged that the City was seeking to "newly enforce its ~ ban on arterial advertising signs on private property while permitting ' offsite advertising signs on government property." For example, the City exempted from the Zoning Resolution arterial advertising signs on tran- ~ sit authority property. Metro Fuel noted that a franchise contract entered into by the City ~, with a private company, Cemusa, Inc., allowed Cemusa to place adver- ~~, tisements on street furniture, such as bus shelters. Metro Fuel noted that , those advertisements, which were similar to its advertisements, were not ~ subject to the Zoning Resolution. It azgued that this exception was.evi- den~e of the regulation's unconstirutionaliry. i~ Both Plaintiffs also argued that these exceptions to the City's sign reg- '~ ulations "undermine[d] and counteract[ed]" the City's asserted interests in aesthetics and traffic safety. I Finding there were no material issues of fact in dispute, and decid- I ing the matter on the law alone, the district court ultimately issued sum- mary judgment in favor of the City. The district court held that: "the ii ~-~ `City's zoning regulations ... satisfy the constirutional test for commer- cial speech restriction and are not unconstirutionally underinclusive."' In reaching that conclusion, the court found that: "the `few exceptions to ®2070 Thomson Reuters 31