005
MEMO
TO:
Town ofWappingers Code Enforcement Department
FROM:
Al Roberts and Joan Garrett
DATE:
July 16, 2009
RE:
Removal of Signs in the Town of Wappinger
In response to your request seeking information regarding the removal of signs that are
placed in the Town Road Right-of-Way, I called the Association of Towns and spoke to
Murray Jaros. Mr. Jaros indicated that the first distinction with regard to signs placed in a
Town or County right-of-way is whether or not the signs are political campaign signs,
private advertising signs or some type of directional sign.
It is the opinion of the Association of Towns' attorney that if the signs in question are not
political signs and are advertising signs placed on a Town right-of-way, that since no one
has the right to place private signs on public property and therefore they can be removed.
He further stated that the person who should be entitled to remove the signs is the
Highway Superintendent.
Political signs are for the most part protected by constitutional First Amendment
considerations. There are a number of cases dealing with the issue of political signs.
In Sugarman v. Village of Chester, 192 F. Supp. 2d 282, (U.S. District Court S.D.N.Y.,
2002), the Court found that municipal ordinances applying generally to all temporary
signs did not violate the First Amendment but ordinances that singled out political signs
did violate the First Amendment. In other words, an ordinance is unconstitutional when
the subject matter contained in the sign determines whether the ordinance applies to that
particular sign. If this is the case, the ordinance is "content based", which violates the
First Amendment. In Sugarman v. Village of Chester, the Village of Chester sign
ordinance required a permit to post temporary signs. That ordinance specified that all
temporary signs including commercial signs required a permit. The ordinance also stated
that all permanent signs, including political signs were exempt. This ordinance was
upheld as constitutional. However, the Village ordinance regulating political campaign
signs was found to violate the First Amendment because that ordinance imposed a bond
requirement only for political signs and only imposed fines for failure to remove those
temporary political signs. The ordinance did not require bond requirements for any other
temporary signs nor did it assess signs for failure to remove other temporary signs. The
Court held this ordinance was unconstitutional since it singled out only temporary
political signs and not other temporary signs.
The Southern District, in the case of KnoejJler v. Town of Mamakating, 87 F. Supp. 2d
322 (2000), reviewed a municipal ordinance restricting lawn signs. The Court held that
the Town ofMamakating ordinance which permitted signs for on-site advertising,
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address signs, identification signs for hotels and non-dwelling building and sale or rental
units without a permit, but required a permit for signs of public information and
convenience, violated the First Amendment, since there was a distinction based upon the
content of and purpose of the signs. The signs at issue in this case was posted on the
Plaintiffs personal property protesting the Town's Judge's decision against him and also
protesting his neighbors' failure to control their dog, among other things.
In a 1964 Westchester County case, Gibbons v. 0 'Reilley, 44 Misc. 2d 353, Judge Dillon
held that a Village ordinance could exclude political billboards from single-family
residential districts without infringing upon a constitutional right of free speech since
aesthetic considerations are valid subjects oflegislative concern with respect to zoning.
In this case a large political billboard sign was erected on private property in derogation
of the local sign ordinance. The Court found that reasonable zoning is within the limits of
the constitution and certain uses may properly be forbidden in designated districts. The
Village Officials, in this case (the Village Engineer and Building Inspector), removed the
signs. There was no discussion or comment in the case that removal of these signs was
criminal or that any penalty was assessed against the Officials or any fault found in their
removal of the signs.
The Town of Wappinger zoning code regarding temporary signs does not single out
political signs and is not content based so as to be objectionable on First Amendment
grounds. The Town's sign code also states that no sign shall be located so as to obstruct
any signs displayed by public authority or placed in such a way as to obstruct proper sight
distance or otherwise interfere with pedestrian or vehicular traffic. If the illegally placed
signs are in fact obstructing sight distance or interfering with pedestrian or vehicular
traffic, these concerns are valid governmental safety concerns which will allow the
removal of these signs.
These signs, once removed, may be used as evidence.
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