Cooperatives & Condominiums

U. S. Dist Ct., S.D.N.Y. (Rakoff, J)

A condominium owner challenged a zoning restriction on placement of illuminated signs. The federal district court dismissed the complaint, concluding that a prohibition on illuminated signs more than 40 feet above curb level did not violate the First Amendment.

The condominium owner affixed an illuminated peace sign to her 17th-story window in the Ansonia apartment building. New York City fined her $800 for violating the city's zoning ordinance prohibiting illuminated signs extending more than 40 feet above curb level in the Ansonia's zoning district. Condominium owner first challenged the city's restriction as an impermissible content-based speech restriction, but the Second Circuit ultimately dismissed that claim and remanded to district court to consider the claim that the ordinance was an unduly restrictive time, place, and manner restriction on speech.

In rejecting condominium owner's contention, the district court concluded that the city's zoning ordinance was narrowly tailored to serve the city's interest in maintaining an aesthetically pleasing cityscape and preserving neighborhood character. The court emphasized that the ordinance left open ample alternative channels for communication, including non-illuminated signs up to 12 square feet in surface area. The court rejected condominium owner's contention that a non-illuminated sign would be functionally invisible, noting that the record did not support that contention.

COMMENT

Municipalities can constitutionally regulate the type of signs or the illumination of signs based on aesthetic preservation or traffic safety but cannot prohibit signs altogether. In La Tour v. City of Fayetteville. Ark., 442 F.3d 1094, the court upheld a municipal ordinance that prohibited flashing, blinking or animated signs, except for signs displaying the time and/or temperature without advertising matter. In La Tour, a landowner mounted inside his office window an electronic flashing sign that displayed messages of 21 characters. In upholding the ordinance, the court reasoned that the city had a legitimate interest in preventing the proliferation of flashing and blinking signs with long messages because those signs could pose a greater distraction and traffic hazard. The court distinguished those signs from the typical time-and-temperature signs that use no more than four characters. The court also noted that landowner had suitable alternative mediums to display his information, to wit, displaying a non- electric sign or an electric sign that remained constant or changed every three hours. La Tour, 442 F.3d at 1097.

Additionally, municipalities can restrict the number or size of signs displayed by landowners. In Hensel v. City of Little Falls, MN, 992 F.Supp.2d 916, the court held constitutional an ordinance which permitted a landowner to erect no more than two signs that totaled eight square feet in size on any parcel of property. In Hensel, a city resident had posted numerous signs in her yard and challenged the ordinance as an unconstitutional restriction on speech. The court reasoned that there were alternative channels of communication available to her and that the ordinance was necessary to: 1) prevent distractions for drivers; and 2) avoid aesthetic clutter.

By contrast, ordinances that place an absolute prohibition on signs by restricting their time, place and manner in a way that completely forecloses an entire medium of expression without providing an adequate substitute will not be upheld. In City of Ladue v. Gilleo, 512 U.S. 43, the United States Supreme Court struck down an ordinance that placed a blanket prohibition on all signs except residential identification signs smaller than one square foot and signs advertising the property for sale, lease or exchange. In Ladue, t he landowner placed an eight-and-a-half by eleven-inch sign in her second-story window, which stated “For Peace in the Gulf.” The Court explained that even though the City has a substantial interest in protecting the aesthetics of the community and preventing traffic hazards, the restriction essentially banned an entire medium and was an unconstitutional restriction on speech.

Payment of Common Charges After Suit Was Brought Board of Managers of One Strivers Row Condominium v. Giwa NYLJ 12/16/15, p. 27, col. 2 AppDiv, First Dept. (memorandum opinion)

In an action to recover common charges, unit owner appealed from Supreme Court's award of attorneys' fees and late fees to the condominium. The Appellate Division affirmed, holding that payment after suit was brought did not excuse unit owner from payment of late charges and attorneys' fees.

The condominium brought this action to recover common charges, and unit owner paid the charges while the condominium's summary judgment motion was pending. Supreme Court then dismissed the action as moot, but directed that judgment be entered against unit owner for $42,037.32 in late fees and attorneys' fees. Unit owner appealed.

In affirming, the Appellate Division held that payment of the common charges amounted to an admission that the charges were due. Because the bylaws made provision for late charges and attorneys' fees in connection with the action for common charges, Supreme Court did not err in awarding those fees.

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