Agenda - Planning Commission - 11/07/2013

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September 25, 2013 I Volume 7 I Issue 18 Zoning Bulletin Signs/Validity of Zoning Regulation —Business convicted of violating zoning code by placing commercial signs on public property Business seeks reversal of conviction, arguing entire zoning chapter is unconstitutional since it favors commercial speech over noncommercial speech Citation: People v. On Sight Mobile Opticians, 2013 WL 3581784 (N.Y. App. Term 2013) NEW YORK (07/08/13)—This case addressed the issue of whether the provisions of a zoning code unconstitutionally favored commercial speech over noncommercial speech. The Background/Facts: Chapter 57A of the zoning code (the "Code") of the Town of Brookhaven (the "Town"): barred all commercial advertising on public roads and property; barred virtually all commercial advertising aside from the premises on which the goods or services were provided (i.e., permit- ted "onsite" and barred "offsite" advertising) (Code § 57A-4[A]); limited the( size and configuration of all signs (Code § 57A-4[A][2]); and permitted \. limited forms of noncommercial signage in most areas of the Town, albeit, with respect to political advertising, for only 30 days in relation to a particular campaign (Code §§ 57A-3, 57A-10[B], [C]). Chapter 57A also exempted from regulation several categories of signs, including utility signs, signs as- sociated with government interests and traffic control, and other signs required by law (Code § 57A-3). Code violations were punishable by fines and up to 15 days of incarceration (Code § 57A-24[A]). On Sight Mobile Opticians ("On Sight") was charged with five different counts of placing a sign advertising its opticians' business on public property at five locations in the Town. On Sight pleaded not guilty and asked the court to dismiss the charges. On Sight contended that Chapter 57A was unconstitu- tional in that, among other things, its provisions unconstitutionally favored commercial speech over noncommercial speech. The District Court disagreed and denied On Sight's motion. On Sight subsequently pleaded guilty for violations of the Code, but appealed the denial of its motion. DECISION: Judgment of district court reversed. The Supreme Court, Appellate Term, New York, Ninth and loth Judicial Districts, held that Chapter 57A was unconstitutional because its provisions favored commercial speech over noncommercial speech. The court explained that noncommercial speech is to be afforded "a greater` degree of protection" than commercial speech. The court further explainedi,,, . 10 ©2013 Thomson Reuters