The plaintiff is the operator of Victory Signs, a company that erects and maintains billboards near Verona Beach, New York.  The plaintiff applied for building permits to construct off-premise signs near a highway.  The Verona Zoning Board denied plaintiff’s request, citing the zoning regulations.  Plaintiff declined to appeal the decision because the interested advertisers withdrew once they heard the decision.  Subsequently, the Verona Town Board met to change the town’s zoning ordinance.  After a public meeting, the board adopted a new zoning amendment requiring new billboards to be smaller in size.  Subsequently, the plaintiff once again applied for building permits for off-premise signs.  The plaintiff hired an attorney who, in a letter to the zoning board, opined that the newly adopted amendment was not yet in effect because it had not yet been filed with the Department of State.  Once again, however, the zoning board denied plaintiff’s application. 

The plaintiff commenced his first action in the New York trial court, seeking the court to invalidate the new law, including the new amendment, for improper adoption.  The trial court agreed, holding that the law was “not property adopted” and invalidating the law.  The town board revisited the amendment and adopted it again.  Once again, the plaintiff commenced the second action in the state trial court, arguing that the law was a violation of his due process and first amendment rights.  The defendants removed the action to federal court under federal question jurisdiction and move to dismiss for failure to state a claim. 

The federal district court begins by examining plaintiff’s substantive due process claim.  The court explains that to sustain a substantive due process claim, the plaintiff must plead a “constitutionally cognizable property interest is at stake.”  Here, the court finds that the plaintiff had no property interest in erecting his signs.  Thus, holds the court, the defendant’s denial of plaintiff’s application did not impede any actual property interest and the substantive due process claim is dismissed. 

Second, the district court examines plaintiff’s procedural due process claims.  The court explains that procedural due process requires a violation of the plaintiff’s opportunity to have a meaningful review of any decision.  The court finds that the state law’s availability of Article 78  administrative review is sufficient to satisfy procedural due process.  Thus, the court dismisses both of plaintiff’s due process claims. 

Third, the court deals with plaintiff’s argument that the ordinances infringe on First Amendment free speech.  The court begins by establishing the test for restrictions on speech.  To receive First Amendment protection, explains the court, the communication being sought may not be misleading or related to unlawful activity.  Here, the court finds the signs are neither unlawful nor misleading, thus, the speech is entitled to First Amendment protection.  Second, the entity seeking to limit the speech must purport a “substantial interest” it hopes to achieve with the restriction.  The restriction, explains the court, must advance the state interest and be narrowly tailored.  Here, the court finds that the ordinance states the town’s interest as “limiting traffic hazards” and “detract[ing] from the quality of life and character of the area.”  Neither of these interests, finds the court, is directly related to limiting the number of billboards.  Thus, the court finds that plaintiff’s have at least stated a prima facie First Amendment claim, sufficient to avoid dismissal. 

Fourth, the court examines the various defendants named in the action.  Initially, since plaintiff does not object, the court dismisses defendants town zoning board and zoning board of appeals since they are encompassed by the town in its entirety.  Next, the court dismisses the claims against the individuals, finding that all of plaintiff’s claims are related to the defendant’s actions in their official capacity.  

Finally, the court examines plaintiff’s “improper enactment of local law” claim.  The court finds that this state law does not require the local law to state a purpose of enactment and thus, the failure of the city to state one does not automatically invalidate the statute.  Further, the court finds that the plaintiff has only alleged a violation of “statutory requirements” and fails to specifically state which ones.  Thus, the court dismisses these state law claims but without prejudice. 

DePerno v. Town of Verona, 2011 WL 4499293 (N.D.N.Y. 09/27/2011) 

The opinion can be accessed at: http://scholar.google.com/scholar_case?case=12931367230435709385&q=deperno+v.+town+of+verona&hl=en&as_sdt=2,33&as_vis=1