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NEW YORK CITY-A federal judge has thrown out challenges to the constitutionality of the city’s regulation of billboards and other outdoor advertising on arterial highways and in certain zoning districts. However, the decision by Judge Paul Crotty of the US Southern District Court acknowledged that enforcement of the regulations has been “inconsistent and less than vigorous” over the years.

That inconsistency–in both enforcement and in the regulations themselves–was one of the arguments that the outdoor advertising companies, including Clear Channel Outdoor, put forth in challenging the laws, which were devised in 1940 and amended in 2001. The companies, Crotty wrote, charged “that the city enforces its zoning regulations unevenly, and, in certain cases, in a manner that unconstitutionally favors the city in violation of First Amendment speech protections.” Furthermore, the judge wrote, the lawsuits charged that “the city’s regulatory scheme is riddled with exceptions that undermine its efficacy to the point of unconstitutionality.”

Crotty’s decision ruled on two separate cases: a consolidated action on separate lawsuits filed by Clear Channel and by Atlantic Outdoor Advertising, Scenic Outdoor, Troystar City Outdoor and Willow Media regarding billboards on arterial highways; and an action by Metro Fuel on its internally-illuminated panel signs. The so-called “Clear Channel plaintiffs” contended that zoning regulations on the size and location of advertising signs near highways are unconstitutional because they do not advance the city’s interest in promoting traffic safety and aesthetics. Clear Channel also disputed the constitutionality of the requirement, enacted in’01, that outdoor advertising companies must register all their arterial signs with the city’s Department of Buildings. Metro Fuel challenged regulations that prohibit illuminated signs outside of large commercial districts.

Concerning the limits on billboards near highways, Crotty wrote that the exceptions to the regulations do not undermine the laws’ effectiveness. Under the’01 zoning resolution, “the Clear Channel Plaintiffs will be forced to remove–or convert to non-commercial copy–dozens of large, distracting billboard signs near arterial highways which should never have been erected in the first place. Billboards belonging to other outdoor advertising companies not parties to this case will presumably also come down.”

Additionally, Crotty wrote that the city has said it will enforce this zoning law against the Metropolitan Transportation Authority, the Port Authority of New York and New Jersey, Amtrak and even against the city itself, “so many more arterial advertising billboards should also be removed. Enforcement of the zoning resolution will further prevent the illegal erection of future arterial advertising structures and signs. It must also be recalled that the city is enforcing a regulation which has been routinely ignored by the industry. The industry has been on notice of the new law since 2001. After eight years’ notice, it cannot claim surprise.”

The Metro Fuel lawsuit challenged the restrictions on illuminated signs largely on grounds that such signs are permitted on “street furniture” such as bus shelters and newsstands, although generally not on the sides of buildings. “It is not fanciful to suggest that there is a real distinction between streets and buildings,” Crotty wrote. “The city’s actions with regard to streets in the public right of way cannot compromise or restrict its abilities to apply different rules via zoning for the simple reason that buildings are not streets and streets are not buildings.”

In a statement, Phyllis Arnold, DOB’s deputy commissioner of enforcement and legal affairs, says the decisions allows the buildings department “to expand its enforcement to include all illegal advertising signs and the outdoor advertising companies responsible for them.” A Clear Channel Outdoor spokesman tells GlobeSt.com that the company’s lawyers are “still reviewing the current ruling, and we generally do not comment on pending litigation.”

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