November 2017
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Guarding New York City’s Streetscape

outdoor advertising long island expressway

As is often the case, Jane Jacobs said it best: “Streets and their sidewalks, the main public places of a city, are its most vital organs… If a city’s streets look interesting, the city looks interesting; if they look dull, the city looks dull.”  Citing Jacobs in a recent decision which affirmed the constitutionality of New York City’s billboards and signage regulations, the United States District Court for the Southern District of New York rightfully recognized the City’s substantial interests in protecting neighborhood aesthetics and promoting traffic safety. For 115 years the Municipal Art Society of New York has been fighting to improve New York City’s streets; this decision, coupled with the City’s renewed promise to enforce its signage restrictions, is a significant victory in that fight.

The problems of outdoor advertising are not, of course, a recent phenomenon; when the New York Times noted that one of Manhattan’s most celebrated retail districts had become a “frightful spectacle” characterized by a “wilderness of discordant and shrieking signs” it was not merely recalling the ills of non-compliant signage, but forecasting them, in 1902.

Nor are the regulations that govern billboards and commercial signage throughout the city a recent invention.  In 1940, New York City restricted outdoor advertising signs in residential districts and within 200 feet, and in view, of arterial highways and parks larger than half an acre.  Later, in 1961, the City’s comprehensive zoning resolution included signage regulations which echoed the earlier laws.  These mandates were largely ignored by the ever-growing outdoor advertising industry, and, until recently, by the City itself.  While the City revisited its regulations of outdoor signage, starting in earnest at the turn of this century, the industry continued to disregard the City’s laws.  As it has recently in jurisdictions across the country, the matter ended up in Federal Court, with a group of plaintiffs challenging the regulations as an infringement upon their right to commercial speech, protected by both the New York State and Federal Constitution.  The City rightfully defended its interest in improving traffic safety and aesthetics.

Writing for the Southern District of New York in Clear Channel Outdoor Inc. v. City of New York, Judge Paul A. Crotty delivered a thoughtful opinion which laid out in no uncertain terms that New York City may enforce its arterial highway advertising ban, regulate the permitting of existing outdoor arterial signage, and restrict the locations of illuminated signs throughout the city.  The visual clutter of commercial signage that routinely assaults the senses of New Yorkers, defaces its storied neighborhoods and threatens the safety of its citizens was dealt a significant blow by the opinion, which held that “the City’s zoning regulations … satisfy the constitutional test for commercial speech restriction.”  Judge Crotty explained that the City’s substantial interest in restricting outdoor advertising near highways is directly advanced by the challenged zoning ordinances, which are no more extensive than necessary, and that restrictions on the illumination and location of building-side panel advertisements are also permissible in light of the city’s interest in protecting neighborhood aesthetics.

The industry’s legal assault on the regulation of private signage centered largely on the fact that the City enforced signage laws only spottily over many decades, actually licensed illegal signs (as in the case of two signs in the Yankees’ parking lot next to the Major Deegan Expressway), and even went so far as to make a deal for monopolistic use of billboards – legal and illegal – during the hoped-for New York City Olympic Games.  Fortunately, the Southern District recognized that past governmental errors should not preclude future enforcement, but the time has come for the City to treat itself and other governmental agencies, including the MTA, with the same rigor we now hope it will apply to private advertisers.

In The Death and Life of Great American Cities, Jacobs likened “a bunch of billboards” to gas stations and vacant and neglected buildings, suggesting that were likely to “cast a pall out of all proportion to [their] size.”  This is also true of the impact that illegally sited or illuminated signs have on our streets.  New York City’s streets and sidewalks are its single largest public space, its highways an essential component of its infrastructure.  The City has been given a clear mandate to vigorously protect these assets, and it must continue to do so.   The appearance and character of neighborhoods, the safety of drivers throughout the five boroughs and the overarching goal of the City to provide a harmonized and well-maintained streetscape all hinge on the City’s ability, and willingness, to regulate outdoor advertising.