text:
    In the Matter of Annie Lee et al., on Behalf of Themselves and All Others Similarly Situated, Respondents, v J. Henry Smith, as Commissioner of the New York City Department of Social Services, Respondent, and Philip L. Toia, as Acting Commissioner of the New York State Department of Social Services, Appellant.
    Argued November 9, 1977;
    decided December 21, 1977

      POINTS OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Amy Juviler, Samuel A. Hirshowitz, Herbert Wallenstein and Gilbert L. Offenhartz of counsel), for appellant.
    I. The standard of assistance as a flat grant for Supplemental Security Income (SSI) recipients established by Congress and the New York Legislature is a reasonable method for aiding the needy. (Hannington v Weinberger, 393 F Supp 553; Rosado v Wyman, 397 US 397; Wein v Carey, 41 NY2d 498; Montgomery v Daniels, 38 NY2d 41; Matter of Levy 38 NY2d 653; Matter of Padilla v Wyman, 34 NY2d 36.) II. Article XVII of the New York Constitution authorizes the Legislature to establish the means for aiding the needy. It does not prohibit assistance by flat grant. (Matter of Levy, 38 NY2d 653; Matter of Barie v Lavine, 40 NY2d 565; Lindsay v Wyman, 372 F Supp 1360, affd sub nom. Beame v Lavine, 419 US 806; People v Westchester County Nat. Bank of Peekskill, N. Y., 231 NY 465.) III. The SSI program in New York treats all recipients equally and the differences among the categorical aid programs are reasonable and do not deny SSI recipients equal protection of the laws. (Jefferson v Hackney, 406 US 535; Dandridge v Williams, 397 US 471; Matter of Barie v Lavine, 40 NY2d 565; Matter of Padilla v Wyman, 34 NY2d 36; Matter of Figueroa v Bronstein, 38 NY2d 533; Montgomery v Daniels, 38 NY2d 41.)

      Ralph Murphy, Carolyn A. Kubitschek, Nancy E. Le Blanc, Michael D. Hampden, Ian F. Feldman and Mary March Zulack for respondents.
    I. The courts below correctly ruled that the denial of assistance to needy SSI recipients pursuant to subdivision (a) of section 158 of the Social Services Law violates their right to equal protection of the law. (Hagans v Lavine, 415 US 528; Matter of Patricia A., 31 NY2d 83; Shapiro v Thompson, 394 US 618; Matter of Atkin v Onondaga County Bd. of Elections, 30 NY2d 401; Alevy v Downstate Med. Center of State of N. Y., 39 NY2d 326; United States Dept, of Agrie, v Moreno, 413 US 528; Matter of Padilla v Wyman, 34 NY2d 36, app dsmd sub nom. Matter of Padilla v Lavine, 419 US 1084; Buffington v Beal, 430 F Supp 1281; Anderson v Burson, 300 F Supp 401; Jefferson v Hackney, 406 US 535.) II. The court below correctly ruled that the State Constitution and the Social Services Law mandate that appellants provide for the subsistence needs of petitioners, as defined by section 131-a of the Social Services Law, not met by the Supplemental Security Income program. (Matter of Atkin v Onondaga County Bd. of Elections, 30 NY2d 401; Alevy v Downstate Med. Center of State of N. Y., 39 NY2d 326.)

      Leonard M. Marks and Charles. B. Ortner for The American Jewish Committee and another, amici curiae.

    I. The denial of assistance to SSI recipients otherwise elegible for home relief solely because they are 65 years or older violates the equal protection clause. (Fuller v Nassau County Dept, of Social Servs., 77 Misc 2d 677; Sherbert v Verner, 374 US 398; Reed v Reed, 404 US 71; Gulf, Col. & Santa Fé Ry. v Ellis, 165 US 150; McLaughlin v Florida, 379 US 184; Carrington v Rash, 380 US 89; Asbury Hosp. v Cass County, 326 US 207; Matter

      of Szanto v Dumpson, 77 Misc 2d 392; Murgia v Commonwealth of Massachusetts Bd. of Retirement, 376 F Supp 753; Morales v Minter, 393 F Supp 88.) II. The New York statute creates a conclusive presumption that violates plaintiffs’ right to due process of law. (Heiner v Donnan, 285 US 312; Carrington v Rash, 380 US 89; Stanley v Illinois, 405 US 645; United States Dept, of Agrie, v Murry, 413 US 508; Morales v Minter, 393 F Supp 88.) III. The New York SSI program contravenes the Federal legislative purpose and is therefore invalid. (Carleson v Remillard, 406 US 598; Townsend v Swank, 404 US 282; Perez v Campbell, 402 US 637; Rosado v Wyman, 397 US 397; King v Smith, 392 US 309; Carver v Hooker, 501 F2d 1244; Philbrook v Glodgett, 421 US 707; Federal Power Comm, v Corporation Comm, of State of Okla., 362 F Supp 522, 415 US 961; Woolfolk v Brown, 325 F Supp 1162, 456 F2d 652, 409 US 885; Helvering v Davis, 301 US 619.)

      Gerald Schwartz, Judith L. Carlin and Jonathan A. Weiss for the Jewish Family Service and another, amici curiae.

    I. The Laws of 1974 (ch 1080, §§ 1, 2) violate plaintiffs’ rights under the equal protection clause of the United States Constitution because there exists no rational basis for denying them public assistance. (Lindsley v Natural Carbonic Gas Co., 220 US 61; Morey v Doud, 354 US 457; Dukes v City of New Orleans, 501 F2d 706; Harper v Virginia Bd. of Elections, 383 US 663; McLaughlin v Florida, 379 US 184; Shapiro v Thompson, 394 US 618; Matter of Rivera, 175 Misc 1039; Young v Shuart, 67 Misc 2d 689, 39 AD2d 724; Matter of Banks v Wyman, 39 AD2d 215; Matter of Borders v Nassau County Dept, of Social Servs., 34 AD2d 805.) II. The Laws of 1974 (ch 1080, §§ 1, 2) violate the equal protection clause in that it creates an invidious discrimination against the poor. (Harper v Virginia Bd. of Elections, 383 US 663; Douglas v California, 372 US 353; Griffin v Illinois, 351 US 12; Boddie v Connecticut, 401 US 371; Williams v Illinois, 399 US 235; Tate v Short, 401 US 395; Shapiro v Thompson, 394 US 618.)
   OPINION OF THE COURT

Wachtler, J.

On this appeal we are asked to consider the constitutionality of section 2 of chapter 1080 of the Laws of 1974 (now part of Social Services Law, § 158, subd [a]) which effectively provides, in many cases, that the aged, disabled and blind are entitled to less public assistance than other needy persons. The Supreme Court, New York County, and the Appellate Division, First Department, have held that the statute violates the petitioners’ rights to equal protection as well as section 1 of article XVII of the State Constitution which requires the State to provide for the "aid, care and support of the needy.” The Commissioner of the State Department of Social Services has appealed to this court by leave of the Appellate Division.

Section 2 of chapter 1080 of the Laws of 1974 (Social Services Law, § 158, subd [a]) states that a "person who is receiving federal supplementary security income payments and/or additional state payments shall not be eligible for home relief.”

Supplemental Security Income (SSI) is a Federal program, which went into effect in January, 1974 (see US Code, tit 42, § 1381 et seq.), and is designed to aid all aged, disabled and blind persons who, because of their physical condition, are unable to support themselves. It provides for a flat grant of Federal funds and an optional State supplement (US Code, tit 42, § 1382, subd [b]; § 1382f; § 1382e, subd [a]). New York had previously furnished public assistance to these persons under a program entitled "Aid to the Aged, Blind and Disabled” (AABD) (see former title 6 óf the Social Services Law). However in 1974 the Legislature discontinued the AABD program and adopted a system for supplementing the Federal SSI plan (see Social Services Law, tit 6, entitled "Additional State Payments for Eligible Aged, Blind and Disabled Persons”). At the present time SSI is administered entirely by the Federal Government which also pays all costs of administration (US Code, tit 42, §§ 1383b, 1382e).

Home relief is a State public assistance category, established by the Social Services Law which, together with veterans’ assistance and aid to dependent children (ADC) provides for the needs of those who are unable to support themselves (Social Services Law, § 131-a). Home relief is actually a residual category which is intended to furnish aid to any person "who is not receiving needed assistance or care under other provisions of this chapter, or from other sources” (Social Services Law, § 158, subd [a]). Like all State public assistance programs, home relief is administered by the State and local social service offices (Social Services Law, § 131-a, subd 1).

The amount of public assistance a person actually receives under any of these programs depends upon his "standard of monthly need.” There are in fact two distinct standards of monthly need: one for the aged, disabled and blind (Social Services Law, § 209, subd 2), and the other for all other classes of needy persons (Social Services Law, § 131-a, subd 2). Subdivision 2 of section 209, insofar as it is applicable to this appeal, establishes the monthly needs of the aged, blind and disabled as follows: "(a) For an eligible individual living alone, $218.55; and for an eligible couple living alone, $312.54.” The difference between the monthly need and the Federal grant is satisfied by the State supplement (Social Services Law, §§ 207, 209, subd 1, par [a]). With respect to all other needy persons subdivision 2 of section 131-a of the Social Services Law establishes the standard monthly need according to the following schedule:

"In addition to the above, the standard of need shall include amounts for shelter and fuel for heating” (emphasis added; see, also, Social Services Law, § 131-a, subd 3).

Thus all needy persons, except the aged, blind and disabled receive a fixed amount, depending on the number of persons in the household, and an additional amount for actual shelter costs which, according to regulation, is fixed at a maximum of $152 a month (18 NYCRR 352.3 [a] [2]). The State claims, and it is conceded, that in most cases the SSI payment exceeds the amount an individual would receive if he were dependent on home relief or any other category of public assistance. But, in many cases, the effect of the statutory scheme is that those who are unable to support themselves because of age, or disability or blindness receive less public assistance than other needy persons who do not suffer from these disabilities. The cases now before us illustrate the point.

The petitioner Annie Lee, for instance, is blind in one eye, partially blind in the other and suffers from diabetes. When this proceeding was commenced in June of 1976 she was 62 years old and lived alone in an apartment in New York City. She received $218.55 a month in Supplemental Security Income. This was her only source of income. After paying her rent of $180 a month she was left with $38.55 to meet her other monthly needs. In 1975 she applied for home relief. Under that program her needs would include a flat grant of $94 (for a person living alone), and $152, the maximum allowed for actual shelter costs for a person living alone in New York City (Social Services Law, § 131-a, subd 2; 18 NYCRR 352.3 [a]). She sought assistance in the amount of $27.45 a month—the difference between her needs established pursuant to subdivision 2 of section 131-a of the Social Services Law ($246) and her actual income from the Federal program ($218.55). The application however was denied solely because of her status as an SSI recipient (L 1974, ch 1080, § 2; Social Services Law, § 158, subd [a]).

The other petitioners are also residents of New York City who are unable to work because of physical disability and are recipients of SSI in an amount less than they could receive under the home relief program. Their applications for home relief, in varied amounts, were also denied because they were disabled and derived their income from SSL

On this appeal the State urges that subdivision (a) of section 158 of the Social Services Law is constitutional insofar as it bars SSI recipients from access to home relief. Although this often means that the aged, disabled and blind will receive less public assistance than other needy persons the State claims that there is no denial of equal protection because the recipients in both categories are treated alike in that they are all granted amounts which satisfy their "standard of monthly need” as established by the Legislature. It is urged that the Legislature acted reasonably in recognizing the aged, blind and disabled as a distinct category of needy persons and in separately computing their "standard of monthly need” in a manner different from that used in determining the needs of other recipients of public assistance. It is noted that if the State contributions to SSI did not follow the Federal pattern— that is a flat grant rather than a flexible one reflecting the actual shelter costs—the Federal Government would not administer the program or pay for the costs of administration. The State also argues that the "substantial advantages of administration of SSI by HEW would be lost if SSI recipients who had undertaken high shelter costs were permitted to receive state administered assistance [i.e., home relief] as well. Since separate eligibility determinations would have to be made in each instance the advantage of reduced administrative caseload would be lost.”

As indicated at the outset, the State is constitutionally charged with providing "aid, care and support of the needy” (NY Const, art XVII). This we have recently held "imposes upon the State an affirmative duty to aid the needy” (Tucker v Toia, 43 NY2d 1). The Constitution also authorizes the Legislature to create categories of public assistance and to determine the needs of individuals in those categories (Tucker v Toia, supra). But under the equal protection requirements of the State and Federal Constitutions (NY Const, art I, § 11; US Const, 5th, 14th Arndts) any classification which denies to one class of needy persons public assistance which is available to all others, cannot be justified unless it is rationally related to a legitimate State interest (see, e.g., United States Dept, of Agrie, v Moreno, 413 US 528; cf. Matter of Padilla v Wyman, 34 NY2d 36; see, also, Matter of Bernstein v Toia, 43 NY2d 437 [decided herewith]).

Classification of the aged, disabled and blind into a separate public assistance category with needs different from other needy persons is not unusual, nor is it usually considered discriminatory. Generally however the classification inures to their benefit and is sustained on the theory that it is not irrational for the State to conclude that the aged and disabled are "least able * * * to bear the hardships of an inadequate standard of living” (Jefferson v Hackney, 406 US 535, 549). Thus if the State’s classification had also recognized their needs at a level equal to or greater than the needs of others generally, the separate treatment would find support in reason and authority.

But it is hard to imagine how the State could reasonably conclude that needy persons who are also aged, disabled or blind would have lesser needs than needy persons not suffering from these disabilities. Indeed on this appeal the State does not argue that subdivision (a) of section 158 of the Social Services Law insofar as it establishes the needs of many aged, disabled and blind persons at a level less than those in all other classes, is based on any rational distinction between their actual or general fiscal needs and the needs of those in the other categories. Instead it is urged that the disparate treatment is rationally related to other legitimate concerns— administrative necessity and costs.

It is conceded that if the State wishes to have the Federal Government assume administration, and costs of administering the SSI program the State supplements must consist of a flat grant. It is also conceded that if the needs of the aged, disabled and blind were computed according to the standards pursuant to subdivision 2 of section 131-a of the Social Services Law the State supplements would not satisfy the Federal requirement and that establishment of the separate standard of need under subdivision 2 of section 209 of the Social Services Law insures that the Federal Government will assume the cost of administering the SSI program. The State urges that it "was altogether reasonable for the Legislature of New York to accept HEW’s administration of SSI grants and to establish the standards of need for those recipients in a manner different from that used in State administered programs. The savings from the reduction in administrative costs can be used in other ways which benefit the” aged and disabled.

This of course is a legitimate State interest. But it should be noted that the petitioners are not asking the State to alter the method for computing the State’s contributions to the SSI program. In fact the petitioners are not requesting increased SSI payments. They are seeking direct State aid in the form of home relief. There is nothing to indicate that the granting of that relief would jeopardize the State’s interest in insuring that its contributions to the SSI program satisfy Federal requirements. Thus although the State may have a legitimate interest in seeing that the Federal Government continues to bear the costs of administering the SSI program, subdivision (a) of section 158 of the Social Services Law, insofar as it denies home relief to all SSI recipients, bears no rational relationship to that objective.

The State also urges that the statute serves to reduce the home relief caseload and thus preserves for the State the "substantial advantages of administration of SSI by HEW”. There is little doubt that the statute can be expected to further that objective. Declaring SSI recipients, or any other class of needy persons, ineligible for home relief undoubtedly reduces the home relief caseload but not in a rational manner.

The fact that the aged, disabled and blind receive income in the form of SSI furnishes no basis for distinguishing them from all other persons seeking public assistance. The State does not deny home relief to other needy individuals who receive income from other sources. Instead it has provided that they are entitled to home relief for the difference between the income they do receive and their standard of monthly need (Social Services Law, § 131-a, subd 3). And although the State has a valid reason for establishing a different standard of need for the aged, disabled and blind in computing the State’s contribution to the SSI, there is no reason for applying this different standard in determining their eligibility for home relief.

It is true of course that determining the eligibility of the aged, disabled and blind for home relief will entail some administrative cost to the State. At the present time the State pays for the cost of administration in connection with providing aid to all needy persons—except the aged, blind and disabled. They are the only persons who are denied State aid because of the administrative costs the State would incur in providing it. While the State may have a legitimate interest in reducing the costs of administering the home relief program, it may not accomplish this result by arbitrarily denying one class of persons access to public funds available to all others (cf. Matter of Padilla v Wyman, 34 NY2d 36, supra).

Furthermore, in New York, the State’s obligation to provide for the needy (NY Const, art XVII) includes the usual costs of administration (see, e.g., Tucker v Toia, 43 NY2d 1, supra). While the State’s adoption of the SSI program means that the Federal Government generally assumes the costs of administration in providing for the aged, disabled and blind, the State’s duty remains. The obligation cannot be avoided by irrevocably assigning the aged, disabled and blind to the Federal program without recourse to State aid, when in many cases this means that they must survive on lesser amounts than are granted to other needy persons in the State.

In sum we agree with the courts below that subdivision (a) of section 158 of the Social Services Law, as amended (L 1974, ch 1080, § 2), is unconstitutional because it violates the equal protection guarantees of the State and Federal Constitutions as well as article XVII of the State Constitution.

The order of the Appellate Division should be affirmed.

Jones, J. (dissenting).

I must reject the view of the majority that subdivision (a) of section 158 of the Social Services Law denies petitioners equal protection of the laws insofar as it excludes from home relief assistance persons who would otherwise be qualified but who are beneficiaries under the Supplemental Security Income program.

The standard of review of petitioners’ equal protection claims is the traditional rational basis test (cf. Montgomery v Daniels, 38 NY2d 41, 59). Thus, the question for judicial resolution is whether there is a rational basis for separately classifying home relief and Supplemental Security Income recipients and then for distinguishing as the law now does in the benefits to be received by the members of the two classes.

A review of the history which preceded the amendment of subdivision (a) of section 158 is instructive. Prior to January 1, 1974 the State of New York distributed public assistance in three categories: home relief, aid to dependent children and aid to the aged, blind and disabled (AABD). Benefits were not uniform but differed from one category to another. In 1974 the Federal Government, through the Department of Health, Education and Welfare, instituted a new nationwide program of Federal assistance to the aged, blind and disabled, making grants to such persons payable by the Social Security Administration as Supplemental Security Income (SSI). It was thought desirable to make distribution through Social Security channels rather than as public assistance grants, and, by the very nature of the characteristics of the category, once eligibility was established there was little likelihood of any change of status during the remainder of each recipient’s lifetime and thus little occasion for periodic verification of eligibility. The program was also designed to permit any State desiring to supplement the Federal grants to pay a lump additional sum to the Federal Government for distribution to that State’s residents as a part of SSI payments over and above the portion of the payments financed by Federal funds, thereby eliminating the need for a duplicate distribution system. As a condition to a State’s obtaining the advantages of such Federal distribution of the State’s funds, the State was obliged to comply with Federal specifications which (1) required that total benefits to individual recipients be no less than the amount they had been receiving from the State on December 31, 1973, and (2) permitted variations in the supplements provided by a State only on the basis of geographical location and living arrangements—not on other factors which had been recognized and had produced differences m benefit amounts under the program previously administered by the State.

Electing to take advantage of the Federal distribution program as did the other States, New York discontinued its AABD program as of January 1, 1974 and enacted a new title 6 to the Social Services Law (§§ 207-212) authorizing additional State payments for eligible aged, blind and disabled persons to be distributed as a part of SSI, with the State benefits to vary only to the extent permitted by Federal regulations (L 1974, ch 1080, § 1). Simultaneously, to assure consistency and to prevent duplication of benefits, subdivision (a) of section 158 of the law—the section defining eligibility for home relief—was amended to provide that a person receiving SSI and additional State payments, or either, would not be eligible for home relief (L 1974, ch 1080, § 2). Although the amount of New York State supplement to SSI per recipient has twice been increased by amending legislation, because certain allowances available to persons receiving home relief are variable in respects not permitted under Federal regulations governing State contributions to SSI, a small segment of the recipients in the SSI category are receiving total benefits less than what would be paid to them were they recipients in the home relief category—a category for which it is contended that they would qualify if they were not made ineligible therefor by the amendment to subdivision (a) of section 158. It is this difference which creates the categorial discrimination that the majority finds objectionable and unconstitutional.

The State’s objective in creating two separate categories of recipients—those receiving Supplemental Security Income and those receiving home relief—was to obtain the very substantial economic benefit to the State, and the incidental advantage to the recipients, which would flow from administration and distribution of benefits by the Federal Social Security Administration. It is true that identification of the recipients in the former category turns on their right to receive Federal Social Security benefits (or, phrased otherwise, is related to the circumstance that the immediate payor will be the Federal rather than the State government) whereas, with respect to other categories of public assistance, classification is based on what might be termed some descriptive characteristic of individual need of the recipients. I perceive no necessary constitutional infirmity in such a categorial classification, however, provided, of course, that the classification is rationally related to the achievement of a legitimate State interest. (Cf. Trimble v Gordon, 430 US 762.)

Petitioners concede that only a relatively small number of recipients would receive larger benefits in the home relief category than they now receive under the SSI program. "In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,’ it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78. 'The problems of government are practical ones and may justify, if they do not require, rough accomodations—illogical, it may be, and unscientific.’ Metropolis Theatre Co. v. City of Chicago, 228 U. S. 61, 69-70.” (Dandridge v Williams, 397 US 471, 485.)

We have recently held in Matter of Bernstein v Toia (43 NY2d 437, 446 [decided herewith]) that the State may properly be "[motivated to make optimum responsible use of not unlimited funds appropriated and likely to be appropriated for social services”. The present is but another instance of a valid legislative selection of one of several means by which to discharge the State’s constitutional responsibility for "the aid, care and support of the needy” (NY Const, art XVII, § 1). The 1974 enactment of title 6 of the Social Services Law and the related amendment of subdivision (a) of section 158 manifest a selective authorization and budgeting of expenditures of major dimension. This is not an instance of an attempt by resort to a "saving of welfare costs [to] justify an otherwise invidious classification”. (Shapiro v Thompson, 394 US 618, 633.)

Petitioners’ reliance on Buffington v Beal (430 F Supp 1281) is misplaced. The determination in that case hinged on what the Federal District Court perceived to be the proper construction of the provisions and command of the Pennsylvania Public Welfare Code, obviously inapplicable to our case. To the extent that the decision in Buffington may be read as also addressing a Federal constitutional claim of denial of equal protection, I would reject its conclusion. The optimum responsible use of available funds to avoid substantial diversion to defray costs of administration is a legitimate State purpose. (Matter of Bernstein v Toia, 43 NY2d 437, supra.) The assumption which appears to underlie petitioners’ claims is that some constitutional mandate dictates that all legitimate needs of recipients of governmental benefits must be met. We rejected this argument in the Bernstein case. So, too, did the Supreme Court of the United States in Jefferson v Hackney (406 US 535, 546-547) in sustaining the Texas system of public assistance which provided for the meeting of different percentages of need in different recipient categories: "This Court emphasized only recently, in Dandridge v. Williams, 397 U. S. 471, 485 (1970), that in 'the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.’ A legislature may address a problem 'one step at a time,’ or even 'select one phase of one field and apply a remedy there, neglecting the others.’ Williamson v. Lee Optical Co., 348 U. S. 483, 489 (1955). So long as its judgments are rational, and not invidious, the legislature’s efforts to tackle the problem of the poor and the needy are not subject to a constitutional straitjacket. The very complexity of the problems suggests that there will be more than one constitutionally permissible method of solving them.” I see no reason why the principle enunciated by the Supreme Court of the United States in Williamson v Lee Opt. Co. (348 US 483, 489)—that a Legislature in fashioning State programs may "select one phase of one field and apply a remedy there, neglecting the others”— is any less controlling in the application of the constitutional command in times of economic contraction than in periods of economic expansion.

For the reasons stated in Matter of Bernstein v Toia (43 NY2d 437, supra), I would reject the contentions of petitioners based on the provisions of section 1 of article XVII of our State Constitution.

Accordingly, I would reverse the order of the Appellate Division and dismiss the petition.

Judges Gabrielli, Fuchsberg and Cooke concur with Judge Wachtler; Judge Jones dissents and votes to reverse in a separate opinion in which Chief Judge Breitel and Judge Jasen, concur.

Order affirmed, with costs.

      . The chapter also provides that "An applicant for home relief who reasonably appears to meet the criteria for eligibility for federal supplemental security income payments shall be required, as a condition of eligibility for home relief, to apply for such payments and shall, if otherwise eligible therefor, be eligible for home relief until he has received a federal supplemental security income payment. Such applicant shall also be required, as a condition of eligibility for home relief, to sign a written authorization allowing the secretary of the federal department of health, education and welfare to pay to the social services district his initial supplemental security income payment and allowing the social services granted for any month in which he had applied for and been found eligible for supplemental security income benefits.”

      . Petitioner Louisa Ortiz is not personally disabled. However her husband is unable to work because of disability and he receives SSI payments which include an additional amount for petitioner who is considered an "essential person” in his household (see 87 US Stat 152, § 211, as amd by 87 US Stat 947, § 4). Because of her status as an "essential person” under the SSI program the commissioner initially determined that she was an SSI recipient within the meaning of subdivision (a) of . section 158 of the Social Services Law, as amended (L 1974, ch 1080, § 2), and thus not entitled to home relief (see, also, Matter of Arnold v Reed, 43 NY2d 829 [decided herewith]).

      . This should dispel any notion that subdivision (a) of section 158 of the Social Services Law, as amended (L 1974, ch 1080, §2), is necessary to avoid duplicate awards. Although it has been suggested that it would have this effect (see NY Legis Ann, 1974, pp 145, 147) the State does not urge on this appeal that it reasonably furthers this limited objective.

       The argument urged by petitioners that section 1 of article XVII of the New York State Constitution creates a fundamental right to total fulfillment of their needs by public assistance (and consequently that a statute, like Social Services Law, § 158, subd [a], which interferes with such a right may be upheld only if it meets the strict scrutiny test by a demonstration both that it advances a compelling State interest and that no less intrusive means exists for the accomplishment of that objective) is rejected by this court in Matter of Bernstein v Toia (43 NY2d 437).


source: Caselaw Access Project

author: Jasen, J.

license: Public Domain

text:
    Modjeska Sign Studios, Inc., Appellant, v Peter A. A. Berle, Individually and as Commissioner of the Department of Environmental Conservation of the State of New York, Respondent. Charles A. Dale, Jr., as President and on Behalf of the Outdoor Advertising Association of New York, Proposed Intervenor-Appellant.
    Argued October 11, 1977;
    decided December 21, 1977

      POINTS OF COUNSEL

      Manly Fleischmann, Carl W. Peterson, Jr., Adelbert Fleischmann and Henry W. Killeen, III, for appellant.
    I. The prohibition of outdoor advertising in the Catskill Park violates the right to free speech guaranteed by the Federal and State Constitutions. (Follett v McCormick, 321 US 573; N. A. A. C. P. v Button, 371 US 415; Bigelow v Virginia, 421 US 809; Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748; People v Remeny, 40 NY2d 527; Baldwin v Redwood City, 540 F2d 1360; Matter of Cromwell v Ferrier, 19 NY2d 263.) II. Defendant’s actions would result in the destruction of private property without payment of just compensation, constitute an unreasonable exercise of the police power, and are unconstitutional. (City of Buffalo v Michael, 16 NY2d 88; Richards-Dowdle, Inc. v State of New York, 52 Misc 2d 416; Keystone Assoc, v State of New York, 39 AD2d 176, 33 NY2d 848; French Investing Co. v City of New York, 39 NY2d 587; Vernon Park Realty v City of Mount Vernon, 307 NY 493; Pennsylvania Coal Co. v Mahon, 260 US 393; People v Miller, 304 NY 105; Village of Euclid v Ambler Realty Co., 272 US 365; Lutheran Church in Amer. v City of New York, 35 NY2d 121; Matter of Harbison v City of Buffalo, 4 NY2d 553.) III. Defendant’s actions are a violation of section 88 of the Highway Law. (State of Vermont v Brinegar, 379 F Supp 606.) IV. Removal and destruction of plaintiffs outdoor advertising structures without payment of just compensation would be a violation of plaintiffs constitutionally protected right to the equal protection of the laws. (Potomac Elec. Power Co. v Fugate, 341 F Supp 887, 409 US 943; Matter of City of New York [Manhattan Civic Center Area—Boehm], 57 Misc 2d 156, 32 AD2d 530.) V. A preliminary injunction should issue if further proceedings are ordered by this court.

      Adelbert Fleischmann and Henry W. Killeen, III, for proposed intervenor-appellant.
    I. Since the courts below dismissal of plaintiffs complaint was incorrect, its dismissal as moot of Outdoor Advertising Association of New York’s appeal was incorrect as well. II. Defendant’s actions as sanctioned by the courts below impose a continuing chilling effect on the dissemination of constitutionally protected speech through the medium of outdoor advertising. (East Meadow Community Concerts Assn, v Board of Educ., 18 NY2d 129.) III. Special Term’s decision that Outdoor Advertising Association of New York is not entitled to intervene as of right is incorrect, as a matter of law, and should be reversed. (Mann v Companía Petrolera Trans-Cuba S. A., 17 AD2d 193; Nuesse v Camp, 385 F2d 694; Atlantic Refining Co. v Standard Oil Co., 304 F2d 387; Smuck v Hobson, 408 F2d 175; Trbovich v Mine Workers, 404 US 528; Matter of New York State Public Employment Relations Bd. v Board of Educ., 46 AD2d 509; Stuart v Palmer, 74 NY 183; Matter of Village of Spring Val. v Village of Spring Val. Housing Auth., 33 AD2d 1037; City of Buffalo v State Bd. of Equalization & Assessment, 44 Misc. 2d 716.) IV. Special Term’s denial of appellant’s motion to intervene by permission was an abuse of discretion and must be reversed. (Reed v

      Village of Larchmont, 19 AD2d 624; Matter of Petroleum Research Fund, 3 AD2d 1; Bata v Bata, 304 NY 51.)

      Louis J. Lefkowitz, Attorney-General (Stanley Fishman, Ruth Kessler Toch and Susan Marie Tatro of counsel), for respondent.
    I. ECL 9-0305 which regulates outdoor advertising signs in the Catskill Park and provides that signs in existence on May 26, 1969 may continue to be maintained without a permit until January 1, 1976, is, as a matter of law, a valid, proper and reasonable exercise of the sovereign police power of the State of New York and not a taking for which there must be compensation. (Whitmier & Ferris Co. v State of New York, 20 NY2d 413; Terrace Hotel Co. v State of New York, 19 NY2d 526; Matter of Cromwell v Ferrier, 19 NY2d 263; New York State Thruway Auth. v Ashley Motor Ct, 10 NY2d 151; Art Neon Co. v City & County of Denver, 357 F Supp 466, 488 F2d 118; French Investing Co. v City of New York, 39 NY2d 587; Nik-O-Lok Co. v Carey, 52 AD2d 375; People v Goodman, 31 NY2d 262.) II. The compensation provisions of section 88 of the Highway Law cannot be engrafted upon ECL 9-0305 since such compensation provisions are completely contrary to the amortization provisions of ECL 9-0305 and the legislative intent that these statutes are independent of each other is clear. (Matter of City of Brooklyn [Long Is. Water Supply Co.], 148 NY 107; Easley v New York State Thruway Auth., 1 NY2d 374; Matter of Erikson v Helfand, 1 AD2d 59, 1 NY2d 775; Rochester Poster Adv. Co. v Town of Brighton, 49 AD2d 273; State of Vermont v Brinegar, 379 F Supp 606; Matter of Barie v Lavine, 40 NY2d 565; Matter of Dumbleton v Reed, 40 NY2d 586; Matter of Howard v Wyman, 28 NY2d 434.) III. Since the action in which Outdoor Advertising Association of New York seeks to intervene has been dismissed, Outdoor Advertising Association of New York’s appeal from the denial of its application to intervene is rendered moot. (East Meadow Community Concerts Assoc, v Board of Educ., 18 NY2d 129.) IV. Furthermore, the denial of Outdoor Advertising Association of New York’s application to intervene as a party plaintiff should be affirmed since Outdoor Advertising Association of New York has failed to establish that it met the statutory criteria for intervention. (Lesser v West Albany Warehouses, 17 Misc 2d 461; Sam Fox Pub. Co. v United States, 366 US 683; Cameron v President & Fellows of Harvard Coll., 157 F2d 993; Horn Constr. Co. v Town of Hemp-stead, 33 Misc 2d 381; Atlantic Reñning Co. v Standard Oil

      Co., 304 F2d 387; Cascade Natural Gas v El Paso Natural Gas, 386 US 129; Matter of Spangenberg, 41 Misc 2d 584; Central Hanover Bank & Trust Co. v Saranac Riv. Power Corp., 243 App Div 843; Kalkstein v Kalkstein, 278 App Div 781.)
   OPINION OF THE COURT

Jasen, J.

At issue on this appeal is whether the State, having enacted legislation regulating advertising signs and structures in the Catskill and Adirondack Parks, may, after the expiration of a six and one-half year amortization period, require the removal of nonconforming signs without compensation.

ECL 9-0305 (subd 1) provides that to ensure the natural beauty of the Catskill and Adirondack Parks, advertising signs and structures, for which a permit is not obtained, are prohibited except accessory signs and signs located within the Catskill Park limits of an incorporated village. Any signs erected within the Catskill Park as of May 26, 1969, which are not in conformance with the regulations promulgated to implement ECL 9-0305 (see 6 NYCRR Part 195), were required to be removed by January 1, 1976. (ECL 9-0305, subd 1.)

Plaintiff owns approximately 96 outdoor advertising signs or billboards situated within the Catskill Park. Admittedly, none of these signs conforms to the regulations promulgated pursuant to ECL 9-0305. Seeking therefore to enjoin the removal of its signs, plaintiff, only two weeks before the expiration of the amortization period, commenced the present action to declare ECL 9-0305 unconstitutional on the ground that it constitutes a taking for which compensation must be provided.

Special Term denied plaintiff’s motion for a preliminary injunction and granted summary judgment for the defendant, declaring ECL 9-0305 to be constitutional. The Appellate Division unanimously affirmed.

Having reaffirmed today our prior decisions holding aesthetics to be a valid basis for the exercise of the police power (see Suffolk Outdoor Adv. Co. v Hulse, 43 NY2d 483 [decided herewith]), we proceed to a consideration of plaintiff’s contention that ECL 9-0305 constitutes a taking requiring that monetary compensation be given to owners of nonconforming signs removed from the Catskill Park.

The power which the State may exercise over private property spans a wide spectrum. The State may choose merely to regulate the use of land pursuant to the police power or to "take” or physically acquire property pursuant to the power of eminent domain. (French Investing Co. v City of New York, 39 NY2d 587, 593, app dsmd 429 US 990; see, generally, Sax, Takings and the Police Power, 74 Yale LJ 36.) The mode of control chosen to effectuate the desired governmental end has all too often been termed critical to a determination of the necessity of providing compensation to property owners adversely affected. Unfortunately, characterization of the State’s exercise of control over private property as either a noncompensable regulation or a compensable taking is often fraught with difficulty. As Professor Costonis has aptly commented: "Like the bedeviled horseman, government stands shakily astride the police and eminent domain powers as it seeks to give direction in land use affairs.” (Costonis, "Fair” Compensation and the Accommodation Power: Antidotes For the Taking Impasse in Land Controversies, 75 Col L Rev 1021.)

Perhaps the difficulty in precisely delineating the boundary between the police and eminent domain powers stems from the realization that, as a practical matter, any restriction upon the use of property is a deprivation and has a substantially adverse impact upon market value and, in that sense, has been loosely described as a "taking”. (See Salamar Bldrs. Corp. v Tuttle, 29 NY2d 221, 225.) On the other hand, it is equally true "[t]hat hardship is inevitably the product of police regulation and the pecuniary rights of the individual, of necessity, must be subordinate to those of common weal.” (Salamar Bldrs. Corp. v Tuttle, 29 NY2d, at p 225, supra.) In the final analysis, characterization of government control over private property turns usually on a difference of degree and only occasionally on a difference in kind.

In exercising the police power to provide for the general welfare of the people, the State may reasonably regulate the use of private property, notwithstanding the curtailment of private property rights. (People ex rel. Durham Realty Corp. v La Fetra, 230 NY 429, 442; New York State Thruway Auth. v Ashley Motor Ct., 10 NY2d 151, 157.) The requirement that an exercise of the police power be reasonable mandates not only that the regulation relate to the purpose for which it was enacted, but also that it does not unreasonably deprive an owner of all beneficial use of his property. (Salamar Bldrs. Corp. v Tuttle, 29 NY2d, at p 225, supra.) An exercise of the police power unreasonably frustrates an owner’s use of his property "if it renders the property unsuitable for any reasonable income productive or other private use for which it is adapted and thus destroys its economic value, or all but a bare residue of its value (see, e.g., Lutheran Church in Amer. v City of New York, 35 NY2d 121, 130, supra; Vernon Park Realty v City of Mount Vernon, 307 NY 493, 499, supra; Shepard v Village of Skaneateles, 300 NY 115, 118; Arverne Bay Constr. Co. v Thatcher, 278 NY 222, 226, 232, supra; Matter of Eaton v Sweeny, 257 NY 176, 183; 1 Rathkopf, op. cit., § 6.02, at p 6-2).” (French Investing Co. v City of New York, 39 NY2d, at p 596, supra.) To so frustrate an owner’s use of his property under the guise of the police power is, in reality, nothing more than a deprivation of proeprty without due process of law. (NY Const, art I, § 6; US Const, 14th Arndt, § 1; French Investing Co. v City of New York, 39 NY2d, at p 595, supra; Vernon Park Realty v City of Mount Vernon, 307 NY 493, 499; 1 Rathkopf, Law of Zoning and Planning [4th ed], §4.02.)

Turning to an analysis of the statute involved in the present case, we believe it helpful to view, at the outset, the effect of this statute from the perspective of an owner of land upon which a billboard has been erected. Formulated in this setting, the critical inquiry becomes whether ECL 9-0305 renders an owner’s property unsuitable for any use for which it is adapted, thereby destroying its economic value.

Viewed from this perspective, the restrictions placed upon the use of property by ECL 9-0305 do not rise to the level of a "taking” or confiscation without due process of law. In reaching this conclusion, we borrow from the analysis employed in two recent cases, French Investing Co. v City of New York (supra) and Penn Cent. Transp. Co. v City of New York (42 NY2d 324).

In French, which involved an amendment to the New York City Zoning Resolution purporting to create a special park district, we were confronted, as we are again today, with a challenge to regulation of the use of private property. The amendment to the New York City Zoning Resolution rezoned two private parks in the Tudor City residential complex in Manhattan as public parks. By rezoning the property exclusively as public parks, the city precluded any residential or office building development. Finding that the zoning amendment prohibited "all reasonable income productive or other private use of the property”, we held the amendment violative of due process. (39 NY2d, at pp 590-591, supra.)

Although the zoning amendment in French did permit the transfer of development rights from the parks to other areas in Manhattan, they did not attach to specific parcels. Thus, we characterized these rights as "floating development rights, utterly unusable until they could be attached to some accommodating real property, available by happenstance of prior ownership, or by grant, purchase, or devise, and subject to contingent approvals of administrative agencies.” (39 NY2d, at pp 597-598, supra.) Because of the uncertainty of future realization of these rights, we rejected the contention that the amendment did not deprive the property owner of all rights in his property.

Analogous to French is our more recent decision in Penn Cent. Transp. Co. v City of New York (42 NY2d 324, supra), involving a provision of the Administrative Code of the City of New York, which, as applied to Grand Central Terminal, prohibited the erection of an office tower over the existing structure. Characterizing landmark regulation as unlike either zoning or eminent domain, we held that such regulation does not violate due process as long as the landowner is allowed a reasonable return on his property. (42 NY2d, at pp 330-331, supra.)

In contrast to the zoning amendment at issue in French, the landmark regulation in Penn Cent, did not deprive the property owner of the ability to use the regulated land in a manner which would ensure a reasonable return on its investment. Also unlike the amendment in French, the regulation in Penn Cent, provided for the transfer of development rights to other parcels in the area, a number of which were already owned by Penn Central. Consequently, the uncertainty of future economic realization which plagued the French amendment was absent in Penn Cent.

Although the regulation of billboards presents a somewhat different problem than those previously encountered in French and Penn Cent., the analytical framework developed in those cases is useful in resolving whether a landowner who has erected billboards on his property is deprived of the use of his property by a regulation prohibiting the maintenance of such billboards. Drawing upon this analysis, we are of the opinion that, regardless of whether a legislative pronouncement is denominated a zoning ordinance, a landmark regulation, or more broadly, as an exercise of the police power, the critical test of its constitutionality remains whether the challenged legislation deprives a property owner of all reasonable use of his property. To be distinguished, however, are instances of the exercise of the governmental power of eminent domain in which there is a true "taking” of the property.

Applying this test in the present case, we conclude that the regulation of billboards does not deprive a property owner of all reasonable use of his property. ECL 9-0305 does not, as did the zoning amendment in French, place upon the property owner an affirmative requirement—a burden that the land be utilized exclusively as a park open to the public. Instead, this regulation merely places upon the landowner, and therefore upon his lessee, a particular negative restriction—that billboards alone may not be maintained upon specified property. On this analysis, it cannot be said that the prohibition of billboards deprives landowners or their lessees of all reasonable use of their property.

Thus, the logical corollary to this conclusion is that lessees of property upon which the maintenance of billboards has been prohibited have not been unreasonably deprived of property in violation of due process of law. Certainly a lessee cannot be said to possess a property interest greater than that of the fee owner. By merely entering into a lease specifically for the purpose of erecting a billboard, a lessee is not immunized from regulation of billboards under the police power. A lessee stands in no better position than that of the property owner. If the property owner is not deprived of all reasonable use of his property by an exercise of the police power, then neither may the lessee claim that he was. For this reason, we cannot agree with plaintiffs contention that ECL 9-0305 unreasonably deprives it of property without due process of law.

Although we do not believe that plaintiff is entitled to monetary compensation for the removal of nonconforming billboards, we are of the opinion that a regulation requiring the immediate removal of billboards without compensation in some instances might be an unconstitutional deprivation of property. In reaching this conclusion, we are not unmindful of our previous decisions in which we have held that outdoor signs and billboards located along the New York State Thruway may be prohibited and removed without compensation. (See New York State Thruway Auth. v Ashley Motor Ct., 10 NY2d 151, supra; Whitmier & Ferris Co. v State of New York, 20 NY2d 413.) These decisions were premised, however, upon concern for the safety of motorists traveling along the Thruway.

While it is true that aesthetics, in itself, constitutes a valid basis for the exercise of the police power just as safety does (Suffolk Outdoor Adv. Co. v Hulse, 43 NY2d 483 [decided herewith]; Matter of Cromwell v Ferrier, 19 NY2d 263; People v Goodman, 31 NY2d 262; Rochester Poster Adv. Co. v Town of Brighton, 49 AD2d 272; 1 Anderson, New York Zoning Law and Practice [2d ed], §§ 7.07, 11.54; 67 NY Jur, Zoning and Planning Laws, § 123), the public benefit gained from the immediate implementation of a regulation enacted pursuant to the police power to effectuate these objectives may not necessarily be of equal significance. Certainly, a billboard which serves as a menace to the safety of motorists should be removed without delay. In such a case, the public benefit gained by immediate implementation of an exercise of the police power far outweighs the concomitant financial injury suffered by the affected billboard and property owners.

In contrast to a safety-motivated exercise of the police power, a regulation enacted to enhance the aesthetics of a community generally does not provide a compelling reason for immediate implementation with respect to existing structures or uses. True, the public will benefit from a more aesthetically beautiful community, but absent the urgency present in a safety-motivated regulation, the immediate benefit gained does not outweigh the loss suffered by those individuals adversely affected. As always, an exercise of the police power must be reasonable. (French Investing Co. v City of New York, 39 NY2d, at p 595, supra; Salamar Bldrs. Corp. v Tuttle, 29 NY2d, at p 225, supra; 1 Rathkopf, Law of Zoning and Planning [4th ed], § 4.02.) While we do not believe that compensation is required, we do believe that it would have been unreasonable to require, solely for aesthetic purposes, the immediate removal of the billboards prohibited in the present case.

Fortunately, rather than adopting a regulation requiring the immediate removal of nonconforming billboards without compensation, the Legislature has chosen to provide an amortization period as a means of ameliorating the burden cast upon affected billboard owners. The concept of amortization evolved as a hoped for solution to the tension between the ideal of comprehensive zoning and contemporary notions of due process. At the outset, even zoning laws prospective in operation only were looked at with a jaundiced eye. Understandably, attempts to apply a zoning ordinance retroactively faced far greater resistance. (See Comment, The Abatement of Pre-existing Nonconforming Uses under Zoning Laws: Amortization, 57 NW L Rev 323.) Consequently, zoning ordinances were enacted to control only new land uses. As for existing nonconforming uses, it was hoped that they would gradually disappear. However, as Professor Anderson has observed: "It became axiomatic that old uses never die.” (Anderson, Amortization of Nonconforming Uses—A Preliminary Appraisal of Harbison v City of Buffalo, 10 Syracuse L Rev 44; see Comment, The Abatement of Pre-existing Nonconforming Uses Under Zoning Laws: Amortization, 57 NW L Rev 323.)

As a middle ground between prospectively and retroactively applied zoning laws, the concept of amortization emerged. By limiting the period during which an existing nonconforming use may be continued, a balance is struck between an individual’s interest in maintaining the present use of his property and the general welfare of the community sought to be advanced by the zoning ordinance. Thus, by permitting a limited period during which an existing nonconforming use may be continued, rather than requiring its termination immediately, amortization provides an owner with an opportunity to recoup his investment and avoid substantial financial loss. (See, generally, ALI Model Land Development Code, art 4, Discontinuance of Existing Land Uses [1975], 142, 146; 1 Anderson, New York Zoning Law and Practice [2d ed], § 6.47; Nonconforming Uses—Amortization, Ann., 22 ALR3d 1134; Anderson, Amortization of Nonconforming Uses—A Preliminary Appraisal of Harbison v City of Buffalo, 10 Syracuse L Rev 44; Holme, Billboards and On-Premises Signs: Regulation and Elimination Under the Fifth Amendment, 1974 Institute on Planning, Zoning, and Eminent Domain 247; Comment, The Abatement of Pre-existing Nonconforming Uses Under Zoning Laws: Amortization 57 NW L Rev 323.)

In Matter of Harbison v City of Buffalo (4 NY2d 553), involving an ordinance requiring the termination of a cooperage business within a period of three years, we sustained the constitutionality of the concept of amortization. As long as the amortization period is reasonable, it should be upheld. (See Nonconforming Uses—Amortization, Ann., 22 ALR3d 1134; 82 Am Jur 2d, Zoning and Planning, § 188.) Whether an amortization period is reasonable is a question which must be answered in light of the facts of each particular case. (See Nonconforming Uses—Amortization, Ann., 22 ALR3d 1134.) Certainly, a critical factor to be considered is the length of the amortization period in relation to the investment. (See City of Los Angeles v Gage, 127 Cal App 2d 442; National Adv. Co. v County of Monterey, 1 Cal 3d 875, cert den 398 US 946.) Naturally, as the financial investment increases in dimension, the length of the amortization period should correspondingly increase. Similarly, another factor considered significant by some courts is the nature of the nonconforming activity prohibited. Generally a shorter amortization period may be provided for a nonconforming use as opposed to a nonconforming structure. (See, e.g., Village of Gurnee v Miller, 69 111 App 2d 248.)

In essence, however, we believe the critical question which must be asked is whether the public gain achieved by the exercise of the police power outweighs the private loss suffered by owners of nonconforming uses. (See, e.g., Grant v Mayor & City Council of Baltimore, 212 Md 301.) While an owner need not be given that period of time necessary to permit him to recoup his investment entirely (see Comment, The Abatement of Pre-existing Nonconforming Uses Under Zoning Laws: Amortization, 57 NW L Rev 323, 332), the amortization period should not be so short as to result in a substantial loss of his investment. (See Matter of Harbison v City of Buffalo, 4 NY2d 553, 563, supra; People v Miller, 304 NY 105, 109.) If an owner can show that the loss he suffers as a result of the removal of a nonconforming use at the expiration of an amortization period is so substantial that it outweighs the public benefit gained by the legislation, then the amortization period must be held unreasonable.

In determining what constitutes a substantial loss, a court presented with a challenge to a prohibition of billboards similar to the statute in this case should look to, for example, such factors as: initial capital investment, investment realization to date, life expectancy of the investment, the existence or nonexistence of a lease obligation, as well as a contingency clause permitting termination of the lease. As a general rule, most regulations requiring the removal of nonconforming billboards and providing a reasonable amortization period should pass constitutional muster. In concluding as we do, we note that courts in a number of other jurisdictions have passed favorably upon legislative pronouncements requiring removal of nonconforming billboards within amortization periods of varying lengths. (See, e.g., Murphy Inc. v Board of Zoning Appeals, 147 Conn 358 [2 years]; National Adv. Co. v County of Monterey, 1 Cal 3d 875, cert den 398 US 946, supra [1 year]; Western Outdoor Adv. Co. v City of Miami, 256 So 2d 556 [Fla] [5 years]; Art Neon Co. v City & County of Denver, 488 F2d 118, cert den 417 US 932 [2 to 5 years].)

Because of the procedural posture in which this case comes to us, we are unable to determine whether, as applied, the six and one-half year amortization period provided in ECL 9-0305 is unreasonable. It is clear that in granting summary judgment for the defendant, both the trial court and the Appellate Division concluded, as a matter of law, that the Legislature may constitutionally require the removal of billboards pursuant to the police power without compensating those owners adversely affected. As a result, the reasonableness of the amortization period, as a question of fact, was never addressed by either the parties in opposition to or support of the cross motion for summary judgment or by the courts. For this reason, we believe a remand for an immediate hearing is required to provide plaintiff with an opportunity to establish, if it can, that the statutory amortization period of six and one-half years is unreasonable, as applied.

In reaching our conclusion, we reject plaintiff’s contention that section 88 of the Highway Law, enacted pursuant to the Federal Highway Beautification Act of 1965 (US Code, tit 23, § 131) requires that compensation be provided for the removal of billboards located within 660 feet of Federally aided highways. By choosing to provide compensation for billboards removed to beautify Federally aided highways, the Legislature did not relinquish its authority to promote general welfare under the police power without compensating property owners adversely affected by the regulation.

Finally, we similarly reject plaintiff’s contention that ECL 9-0305 is violative of the First Amendment guarantee of free speech. (See Suffolk Outdoor Adv. Co. v Hulse, 43 NY2d 483 [decided herewith].)

Accordingly, the order of the Appellate Division should be reversed and the case remanded to Supreme Court, Albany County, for further proceedings in accordance with this opinion.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order reversed, with costs, and the case remitted to Supreme Court, Albany County, for further proceedings in accordance with the opinion herein. Appeal by "Proposed Intervener” Dale dismissed, with costs, upon the ground that it does not lie.


author: Jasen, J. Fuchsberg, J. (dissenting).

text:
    Suffolk Outdoor Advertising Co., Inc., Respondent-Appellant, v Theodore O. Hulse et al., Constituting the Town Board of the Town of Southampton, Appellants-Respondents. Collum Signs, Inc., Respondent-Appellant, v Town Board of the Town of Southampton, Appellant-Respondent. Frank J. Polacek, Jr., Doing Business as Behrle Outdoor Advertising, Respondent-Appellant, v Town Board of the Town of Southampton, Appellant-Respondent.
    Argued October 11, 1977;
    decided December 21, 1977

      POINTS OF COUNSEL

      Richard E. De Petris and Emil R. De Petris for appellants-respondents.
    I. The zoning ordinance provisions relating to billboards do not violate freedom of speech. (People v Stover, 12 NY2d 462, 375 US 42; People v Goodman, 31 NY2d 262; Matter of Cromwell v Ferrier, 19 NY2d 263; Whitmier & Ferris Co. v State of New York, 20 NY2d 413; New York State Thruway Auth. v Ashley Motor Ct., 10 NY2d 151; Matter of Gibbons v O’Reilly, 44 Misc 2d 353; Town of Huntington v Estate of Schwartz, 63 Misc 2d 836; Modjeska Sign Studios v Berle, 55 AD2d 340; Linmark Assoc, v Willingboro, 431 US 85; Young v American Mini Theatres, 427 US 50.) II. The zoning ordinance provision which requires removal of nonconforming billboards after a period of time is not unconstitutional on its face. (Matter of Harbison v City of Buffalo, 4 NY2d 553; Matter of Off Shore Rest. Corp. v Linden, 30 NY2d 160; Matter of County of Nassau [Cohen], 34 AD2d 412, 27 NY2d 744; Town of Schroeppel v Spector, 43 Misc 2d 290; People v Goodman, 31 NY2d 262; Rochester Poster Adv. Co. v Town of Brighton, 49 AD2d 273; Modjeska Sign Studios v Berle, 55 AD2d 340; Village of Larchmont v Sutton, 30 Misc 2d 245; Philanz Oldsmobile v Keating, 51 AD2d 437.) III. Plaintiffs cannot attack the zoning ordinance provision which requires removal of nonconforming billboards, on the ground that it is unconsitutional as applied to plaintiffs’ billboards, without exhausting the administrative remedy available under the ordinance. (Old Farm Rd. v Town of New Castle, 26 NY2d 462; Janas v Town Bd. of Town of Fleming, 51 AD2d 473; Hopewell Gardens v Town of East Fishkill, 76 Misc 2d 234; Rose v City of New Rochelle, 19 Misc 2d 599; People v Calvar Corp., 286 NY 419; Matter of Sun Oil Co. v Young, 37 AD2d 969, Philanz Oldsmobile v Keating, 51 AD2d 437; Elkort v 490 West End Ave. Co., 38 AD2d 1; Matter of Harbison v City of Buffalo, 4 NY2d 553; Matter of County of Nassau [Cohen], 34 AD2d 412, 27 NY2d 744.) IV. The zoning ordinance provision which requires removal of nonconforming billboards is not in contravention of statute. (Rochester Poster Adv. Co. v Town of Brighton, 49 AD2d 273; Art Neon Co. v City & County of Denver, 488 F2d 118, 417 US 932; Whitmier & Ferris Co. v

      State of New York, 20 NY2d 413; Modjeska Sign Studios v Berle, 55 AD2d 340.) V. The fifth cause of action of plaintiff Suffolk Outdoor which seeks damages for interference with plaintiffs’ property rights does not state a cause of action for damages. (McCauslan v City of New York, 183 Misc 954; Rottkamp v Young, 21 AD2d 373, 15 NY2d 831; Matter of Charles v Diamond, 41 NY2d 318; French Investing Co. v City of New York, 39 NY2d 587.) VI. Plaintiff Suffolk Outdoor is not entitled to a preliminary injunction. (Modjeska Sign Studios v Berle, 55 AD2d 340; Miner v City of Yonkers, 14 Misc 2d 535; Paliotto v Town of Islip, 22 AD2d 930, 16 NY2d 871; Mangels v Incorporated Vil. of Rockville Centre, 270 App Div 903; Commander Oil Corp. v Town of Oyster Bay, 41 Misc 2d 926.) VII. Plaintiffs are not entitled to final judgment on defendants’ motions to dismiss the complaint. (Mareno v Kibbe, 32 AD2d 825; Rovello v Orofino Realty Co., 40 NY2d 633; People v Mancuso, 255 NY 463; Matter of Demisay, Inc. v Petito, 31 NY2d 896.) VIII. The zoning ordinance provision which prohibits billboards in the Town of Southampton should be declared constitutional as a matter of law. (Matter of Cromwell v Ferrier, 19 NY2d 263; Old Farm Rd. v Town of New Castle, 26 NY2d 462; Boryszewski v Brydges, 37 NY2d 361; St. Lawrence Univ. v Trustees of Theol. School of St. Lawrence Univ., 20 NY2d 317.)

      Manly Fleischmann, Carl W. Peterson, Jr., Adelbert Fleischmann, Eugene A. De Nicola and Henry W. Killeen, III, for respondent-appellant.
    I. The prohibition of outdoor advertising in the Town of Southampton violates the right to free speech guaranteed by the Federal and State Constitutions. (Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748; People v Remeny, 40 NY2d 527; Linmark Assoc, v Willingboro, 431 US 85; Bigelow v Virginia, 421 US 809; Follett v McCormick, 321 US 573; N. A. A. C. P. v Button, 371 US 415; Baldwin v Redwood City, 540 F2d 1360; Saia v New York, 334 US 558; La Rocca v Lane, 47 AD2d 243, 37 NY2d 575; Thomas v Collins, 323 US 516.) II. Southampton’s prohibitory ordinance violates the constitutional mandates of due process and just compensation. (Berenson v Town of New Castle, 38 NY2d 102; French Investing Co. v City of New York, 39 NY2d 587; Penn Cent. Transp. Co. v City of New York, 42 NY2d 324; People v Miller, 304 NY 105; Lutheran Church in Amer. v City of New York, 35 NY2d 121; Vernon Park Realty v City of Mount Vernon, 307 NY 493; Pennsylvania Coal Co. v Mahon,
      260 US 393; City of Buffalo v Michael, 16 NY2d 88; Richards-Dowdle, Inc. v State of New York, 52 Misc 2d 416; Matter of Keystone Assoc, v Moerdler, 19 NY2d 78.) III. The amendment is in conflict with controlling Federal and State legislation and is therefore invalid. (State of Vermont v Brinegar, 379 F Supp 606; Robin v Incorporated 'Vil. of Hempstead, 30 NY2d 347; Markham v Cabell, 326 US 404.) IV. Removal and destruction of plaintiff’s outdoor advertising structures without payment of just compensation would be a violation of plaintiff’s constitutionally protected right to the equal protection of the laws. (Potomac Elec. Power Co. v Fugate, 341 F Supp 887, 409 US 943; Matter of City of New York [Manhattan Civic Center Area], 57 Misc 2d 156, 32 AD2d 530, 27 NY2d 518; Reed v Reed, 404 US 71; San Antonio School Dist. v Rodriguez, 411 US 1; Dunn v Blumstein, 405 US 330.) V. The courts below dismissal of plaintiff’s fifth cause of action was incorrect. VI. A preliminary injunction should issue if further proceedings are ordered by this court.
   OPINION OF THE COURT

Jasen, J.

The principal question posed on these cross appeals is whether a local zoning ordinance requiring the removal of all off-premises or nonaccessory billboards throughout the town is an unconstitutional exercise of the police power.

On May 2, 1972, the Town of Southampton adopted Building Zone Ordinance No. 26, which prohibited the erection of all nonaccessory billboards (§ 3-50-60.70) in all districts throughout the town. The ordinance further provided for the removal of all nonconforming billboards on or before June 1, 1975 (§ 3-110-70.03). However, owners of nonconforming billboards were given the opportunity to apply for an extension of the amortization period prescribed by the ordinance (§ 3-110-70.04). Exception was also made for the Town of Southampton to establish public information centers where business signs could be located (§ 3-50-60.07).

Plaintiffs, owners of nonconforming billboards located in the Town of Southampton, seek a declaration that the ordinance in question is unconstitutional in that it is not reasonably related to public safety and welfare. We hold that the ordinance is reasonably related to public safety and welfare, and, as such, is a valid exercise of the police power.

Initially, we reject plaintiffs’ contention that the prohibition of nonaccessory billboards constitutes a violation of the right to free speech guaranteed by the First Amendment. While the Supreme Court has held that commercial speech falls within the protection of the First and Fourteenth Amendments, the court recognized that a State may regulate the time, place or manner of commercial speech—as opposed to its content—to effectuate a significant governmental interest. (Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748, 770-771.) We believe that the regulation of aesthetics constitutes such an interest. Since the challenged ordinance makes no attempt to regulate the content of the commercial speech appearing on billboards, but rather regulates only the place and manner in which billboards may be maintained, we conclude that the ordinance does not infringe the right to free speech guaranteed by the First Amendment.

The authority of the State and its political subdivisions to regulate outdoor advertising pursuant to the police power is well settled. (See, e.g., People v Goodman, 31 NY2d 262; New York State Thruway Auth. v Ashley Motor Ct, 10 NY2d 151; People v National White Plains Corp., 299 NY 694; 1 Anderson, New York Zoning Law and Practice [2d ed], § 11.54; 2 NY Jur, Advertising and Advertisements, § 7; 82 Am Jur 2d, Zoning and Planning, § 125; Billboards—Municipal Regulation, Ann., 58 ALR2d 1314.) Certainly, where the primary purpose for which outdoor advertising is regulated is the public health or safety, there is no doubt that the objective of the regulation lies within the permissible bounds of the police power. (See, e.g., New York State Thruway Auth. v Ashley Motor Ct, 10 NY2d 151, supra; Whitmier & Ferris Co. v State of New York, 20 NY2d 413; 1 Anderson, New York Zoning Law and Practice [2d ed], § 11.55.) Although once open to question, it is now equally clear that the regulation of outdoor advertising for aesthetic purposes alone constitutes a valid exercise of the police power. (See Matter of Cromwell v Ferrier, 19 NY2d 263; People v Goodman, 31 NY2d 262, supra; Rochester Poster Adv. Co. v Town of Brighton, 49 AD2d 273; 1 Anderson, New York Zoning Law and Practice [2d ed], §§ 7.07, 11.54; 67 NY Jur, Zoning and Planning Laws, § 123.)

Once it is established that a regulation enacted pursuant to the police power has a valid basis, it need only be shown to sustain its constitutionality that it is reasonably related to the objective for which it was enacted. (Matter of Cromwell v Ferrier, 19 NY2d, at p 272, supra; People v Goodman, 31 NY2d, at p 266, supra.)

Turning to an analysis of the reasonableness of the Southampton ordinance, we note that the facts in the present case are strikingly similar to those in Matter of Cromwell v Ferrier (supra). In Cromwell, the Town of Wallkill adopted a zoning ordinance which implicitly prohibited nonaccessory signs throughout the town. In upholding the constitutionality of the ordinance, we recognized that "[advertising signs and billboards, if misplaced, often are egregious examples of ugliness, distraction, and deterioration.” (19 NY2d, at p 272, supra.) While we cautioned that the police power should not be employed to cure every artistic nonconformity, we nevertheless sustained the ordinance as reasonable since it was substantially related to promoting the general welfare of the community. (19 NY2d, at p 272, supra; see, also, People v Goodman, 31 NY2d, at p 266, supra.)

Just as in Cromwell, the ordinance under attack in this case prohibits nonaccessory billboards and signs. It cannot be seriously argued that a prohibition of this nature is not reasonably related to improving the aesthetics of the community. Nor can it be said that it is oppressive. (See People v Goodman, 31 NY2d 262, supra.) Although prohibiting nonaccessory billboards, the ordinance permits the maintenance of accessory or on-premises billboards, thus providing an operative means of advertising.

We therefore hold that aesthetics constitutes a valid basis for the exercise of the police power and that the Southampton ordinance prohibiting nonaccessory billboards is substantially related to the effectuation of this objective.

Although the Southampton ordinance is. constitutional on its face, its validity is also dependent upon its reasonableness, as applied. The underlying issue to be resolved in making this determination is whether the amortization period provided by the ordinance is reasonable. While the purpose of an amortization period is to provide a billboard owner with an opportunity to recoup his investment, an owner need not be given that period of time necessary to permit him to recoup his investment entirely. Nor, however, should the amortization period be so short as to result in a substantial loss of his investment. In this respect, the plaintiffs should be entitled to show that the three-year amortization period provided in the Southampton ordinance is unreasonable, as applied. (See Modjeska Sign Studios v Berle, 43 NY2d 468 [decided herewith].)

However, unlike the statute challenged in Modjeska (supra), the ordinance in this case affords plaintiffs an opportunity to obtain an extension of the amortization period if it can be established that, "as to a particular sign”, the amortization period of three years is unreasonable. (See Building Zone Ordinance No. 26, § 3-110-70.04.) This the plaintiffs concededly failed to do. We believe that the plaintiffs were required to exhaust the administrative remedy available under the ordinance before instituting this action. Until plaintiffs make application to the town board for an extension of the amortization period and the town board renders a determination thereon, we can only speculate as to the total amortization period which plaintiffs may have been granted under the ordinance. Hence, it would be premature for a court to pass upon the reasonableness of the amortization period, as applied.

Lastly, we find no merit to plaintiffs’ claim that the Federal Highway Beautification Act of 1965 (US Code, tit 23, § 131) and section 88 of the Highway Law preclude the removal of nonconforming billboards without compensation. (See Modjeska Sign Studios v Berle, supra.)

Accordingly, the order of the Appelate Division should be modified in accordance with this opinion, and as so modified, should be affirmed, with costs for the defendants. The ordinance is declared valid and the certified question is answered in the negative.

Fuchsberg, J. (dissenting).

I dissent from so much of the majority’s opinion as holds thát the challenged Southampton ordinance is in consonance with the First Amendment. To my mind this measure, which with insubstantial exceptions prohibits nonaccessory billboards anywhere in the town, passes beyond the bounds of a reasonable regulation of the time, place, and manner of expression and constitutes an outright ban on a significant form of communication. Indeed, it is far from certain that it would even allow the use of billboards for political, charitable or religious causes.

In any event, I believe it unnecessary to comment at length upon the progressive fading of the distinction between "commercial” and "noncommercial” speech (see Linmark Assoc, v Willingboro, 431 US 85; Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748), or to restate my grounds for believing that the distinction must be altogether effaced (People v Remeny, 40 NY2d 527, 530 [concurring opn]). Clearly the earlier cases in this area can no longer be accepted uncritically.

Suffice it to say that billboards are essentially neutral vehicles for expression, as open to all kinds of messages as are the racks in a bookstore, the advertising columns in a newspaper, or the stage and screen in a theater. It has long been recognized that these forms of communication, although operated commercially, are entitled to a full measure of First Amendment protection (Erznoznik v City of Jacksonville, 422 US 205; Smith v California, 361 US 147; Grosjean v American Press Co., 297 US 233; cf. Pittsburgh Press Co. v Human Relations Comm., 413 US 376). Of course, aesthetic and environmental preservation are valid goals for municipal planning and, in the exercise of their zoning functions for such purposes, communities have considerable elasticity in deciding where billboards may be placed (cf. Young v American Mini Theatres, 427 US 50). However, the enactment before us, by its exclusion of virtually all nonaccessory billboards throughout the large area encompassed by the town, far exceeds the limits of regulation. I would therefore vote to hold the ordinance, as currently drafted, unconstitutional.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler and Cooke concur with Judge Jasen; Judge Fuchsberg dissents and votes to reverse and declare the ordinance unconstitutional in a separate opinion.

Order modified, with costs to defendants, in accordance with the opinion herein and, as so modified, affirmed. Question certified answered in the negative.