Agenda - Planning Commission - 05/06/2010

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March 10, 2010 ~ Volume 4 ~ No. 5 . Zoning Bulletin the ban on off-site commercial arterial advertising that remain along the City's roads do not undermine the constitutionality of the Zoning Res- olution"'; and "the City is permitted `to value one type of commercial speech over another."' ~ The Plaintiffs appealed. II The Court's Decision: Judgment of district court affirmed. The United States Court of Appeals, Second Circuit, held that the City's Zoning Resolution was not unconstitutionally underinclusive. 'The court explained that the First Amendment protected communica- tion that was "neither misleading nor related to unlawful activity." The City could regulate such protected commercial speech if there was " `a substantial interest to be achieved' by the restrictions." Hete, the City's " `twin goals' of protecting the aesthetic appearance of [the City] and maintaining traffic safety [were] `substantial government goals: " "The challenged provisions of the City's Zoning Resolution would be found constitutional if the restrictions: (I) directly advanced those. City inter- ests;.and (2) were not more extensive than necessary to serve those inter- ests." However, the restrictions need not be the "least restrictive means" of advancing those interests. As to claims of "unconstitutional underinclusiveness" (the crux of the .complaints), the court explained that a regulation could be unconstitu- ~ ^`~ tionally underinclusive if it: (1) "in effect restricts too little speech be- cause its exemptions discriminate on the basis of the signs' messages' ; (2) "draws arbitrary distinctions, or ... draws distinctions that `bear[ ] no relationship whatsoever to the particular interests that the [C]ity has asserted"; or (3) "contains exceptions that `undermine and counteract' the [Ciry']s asserted interest." The latter two forms of underinclusiviry were "at the heart" of the Plaintiffs' challenge. The court rejected the Plaintiffs' argument that "the City violates the [First Amendment] protections afforded commercial speech when it dis- tinguishes between their signs or billboards and those. located on gov- ernment property." The court said this argument failed because it was "deaz that, despite its exceptions, New York City's Zoning Resolution duectly advances its interests in traffic safety and aesthetics." Therefore, . the exemptions were not "constitutionally problematic." The court also rejected the Plaintiffs' argument that "the City's con- . tract to permit coordinated advertising on street furniture makes the Zoning Resolution unconstitutionally underinclusive." Here, the court found that the "controlled advertising regime established by [the City's] contract with Cemusa [was] sufficiently distinct from Plaintiffs' advertis- ing that is subject to the zoning restrictions." See also: Central Hudson Gas Pr Elec. Corp. v. Public Service Commis- `._ sion of New York, 447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341, 6 Media L. Rep. (BNAf 1497, 34 Pub. Util. Rep. 4tfi (PURJ 178 (1980). ' 6 ©2010 Thomson Reuters 32