Matter of Mid-State Advertising Corp. v. Bond

Loughran, J. Appellant applied to the respondent, as Superintendent of Buildings of the city of Troy, for permits to erect billboards for general advertising purposes on property of the appellant in that city. The application was denied under an ordinance of the city which provides: “ It shall be unlawful to construct or erect any billboard and/or signboard within the corporate limits of the City of Troy, except upon real property owned or leased by the occupants thereof and for the sole purpose of advertising the sale of such real property or of merchandise kept for sale upon such premises. The provision of this Ordinance shall not apply to sky signs, as provided for in Section 172 of the Building Code, erected or to be erected upon buildings three stories or more in height.” A peremptory order of mandamus directing issuance of the permits so applied for was granted by the Special Term. The Appellate Division reversed on the law. The single question presented to us is that of the constitutional validity of the foregoing ordinance. We think the ordinance is void on its face. It is not an attempt by zoning to exclude billboards or other advertising signs from localities where such devices might mar the beauty of natural scenery or distract travelers on congested city streets. Even were we to assume that outdoor advertising on private property within public view may without compensation be restricted by law for cultural or aesthetic reasons alone, this prohibition, which includes all land in the city of Troy, without definition of the structures proscribed or other standard of regulation, cannot be sustained consistently with fundamental *85 constitutional principles. (N. Y. Const. art. 1, § 6; U. S. Const. 14th Amend. § 1. Cf. People ex rel. Wineburgh Adv. Co. v. Murphy, 195 N. Y. 126; People ex rel. Publicity Leasing Co. v. Ludwig, 218 N. Y. 540; People v. Rubenfeld, 254 N. Y. 245, 248, 249; Perlmutter v. Greene, 259 N. Y. 327. See Opinion of Justices, 232 Mass. 605; General Outdoor Adv. Co. v. Dept. of Public Works, 289 Mass. 149; Freund, Police Power, § 182; Larremore, Public Aesthetics, 20 Harvard Law Review, 35.) The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.