Opinion
Civ. No.: 02-CV-0049A.
June 21, 2004
ORDER
Plaintiff, LAMAR ADVERTISING OF PENN, LLC, ("LAMAR"), a Delaware limited liability corporation, which is in the outdoor advertising business, including locating, erecting and leasing outdoor signs for commercial and non-commercial advertising. LAMAR commenced this action by filing and service of a summons and complaint on January 16, 2002. Jurisdiction in this action is based upon 28 U.S.C. §§ 1331 and 1343.
The Town of Hamburg ("HAMBURG") is a municipal corporation located in the County of Erie, duly organized and existing under the laws of the State of New York. HAMBURG has enacted a zoning ordinance (the "Ordinance") regulating signs within the geographical boundaries of HAMBURG (the "Township").
LAMAR seeks declaratory and injunctive relief, together with costs and attorney's fees. The complaint is based upon 42 U.S.C. § 1983 and the First and Fourteenth Amendments of the United States Constitution. HAMBURG timely answered and denied all allegations of wrongdoing.
LAMAR submitted sign applications to HAMBURG to erect signs, all of which were denied by HAMBURG. LAMAR seeks to display a variety of commercial and non-commercial speech and copy as follows:
A. Phase I or so-called "Bulletin Boards." LAMAR seeks to erect at least eight (8) Bulletin Boards, with two-sided or back-to-back displays at each location (total of at least sixteen (16) displays), 14' by 48' in size and in compliance with outdoor advertising industry standards for such Bulletin Board structures.
B. Phase II or so-called "Poster Panels." LAMAR seeks the erection of at least thirty (30) Poster Panels, with two-sided or back-to-back displays at each location (total of at least sixty (60) displays), 12' by 25' in size and in compliance with outdoor advertising industry standards for such Poster Panel structures.
C. Phase III or so-called "Eight Sheets." LAMAR seeks the erection of at least fifty (50) Eight Sheets, with two-sided or back-to-back displays at each location (total of at least one hundred (100) displays), 6' by 12' in size and in compliance with outdoor advertising industry standards for such Eight Sheet structures.
LAMAR moved for summary judgment and injunctive relief before Magistrate Judge Hugh Scott. On March 21, 2003, Magistrate Judge Scott issued a Report and Recommendation (the "Report") recommending that this Court deny LAMAR's Motion for Summary Judgment and Injunctive Relief. LAMAR timely filed objections to Magistrate Judge Scott's Report. The parties provided the Court with extensive affidavits and memoranda of law. The Court has considered all of the pleadings, proceedings and Report previously had herein; it is hereby
ORDERED, that the Report is not adopted by this Court; and it is further
ORDERED, that LAMAR, its successors and assigns are hereby granted the right to immediately erect and maintain two Bulletin Boards, with two-sided or back-to-back displays at each location (total of at least four displays), 14' by 48' in size, and in compliance with industry standards as established by the Outdoor Advertising Association of America for such structures; and it is further
ORDERED, that the Bulletin Board signs shall be located in the Township as set forth below (or at comparable locations on Southwestern Boulevard, Big Tree Road, McKinley Parkway/Boulevard or other major roads in the Township), as follows:
1. Bulletin Boards (back-to-back as described above), at:
1.1 4530 Big Tree Road; and
1.2 3510 McKinley Parkway/Boulevard; and it is further
ORDERED, that LAMAR, its successors and assigns are hereby granted the right to immediately erect and maintain two Poster Panels, with two-sided or back-to-back displays at each location (total of at least four displays), 12' by 25' in size, and in compliance with industry standards as established by the Outdoor Advertising Association of America for such structures; and it is further
ORDERED, that the Poster Panel signs shall be located in the Township as set forth below (or at comparable locations on Camp Road, Southwestern Boulevard, Big Tree Road, McKinley Parkway/Boulevard or other major roads in the Township), as follows:
2. Poster Panels (back-to-back as described above), at:
2.1 4141 Southwestern Boulevard; and
2.2 4415 Southwestern Boulevard; and it is further
ORDERED, that LAMAR shall be allowed to immediately, and from time to time as Lamar deems necessary, repair and renovate its existing signs (the "Existing Signs") in the Township, located at:
3.1 5661 Camp Road; and
3.2 4090 St. Francis Drive; and it is further
ORDERED, that HAMBURG will not take any action to compel the removal of the Existing signs, or the Existing Signs as repaired and/or renovated; and it is further
ORDERED, that the Bulletin Boards, Poster Panels, Existing Signs, and Existing Signs as repaired and/or renovated may contain commercial and/or non-commercial speech, as LAMAR, its successors and assigns may choose, and the Bulletin Boards, Poster Panels, Existing Signs, and Existing Signs as repaired and/or renovated, and/or the content of said signs, may, among other things, attract attention to object(s), product(s), service(s), place(s), activity(ies), institution(s), organization(s) and/or business(es) not available or located on the lot(s) where the Bulletin Boards, Poster Panels, Existing Signs, and Existing Signs as repaired and/or renovated, is/are located; and it is further
ORDERED, that if the locations of the Bulletin Boards, Poster Panels and Existing Signs, as described in paragraphs 1.1, 1.2, 2.1, 2.2, 3.1 and 3.2 above, become unacceptable to LAMAR, its successors or assigns or impractical for any reason, including but not limited to Lamar's inability to negotiate a lease or leases in good faith and under reasonable terms with the property owners of the locations of the Bulletin Boards, Poster Panels and Existing Signs, the condemnation or other taking of property, relocation of roads, etc., LAMAR, its successors and assigns are granted the right to then erect and maintain substitute sign or signs of similar size and structure (i.e., either Bulletin Boards or Poster Panels), in compliance with industry standards as established by the Outdoor Advertising Association of America for such structures, at other comparable locations on Southwestern Boulevard, Big Tree Road, McKinley Parkway/Boulevard, Camp Road, or other major roads in the Township, to be mutually agreed upon by LAMAR, its successors or assigns and HAMBURG in good faith, so that LAMAR, its successors and assigns shall always maintain two Bulletin Boards and two Poster Panels and signs of similar size, number and character as the Existing Signs; and it is further
ORDERED, that HAMBURG shall immediately issue all necessary permits for the sign structures and shall otherwise cooperate in all respects with the letter and the spirit of this ORDER and in no way impede LAMAR, its successors and assigns; and it is further
ORDERED, that the remaining claims of the complaint, including claims for damages, attorney fees, the request to invalidate the Ordinance and all other items of relief sought by LAMAR are hereby denied in all respects; and it is hereby
ORDERED, the Clerk of the Court shall take all steps necessary to close this case, however, in the event that a party feels that there has been noncompliance with this Order, that party may move to reopen this case within 60 days of the alleged noncompliance.
IT IS SO ORDERED.