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Court Upholds Scarsdale Code Barring Signs in the Village Right of Way

yessignBerg lost his challenge to allow the posting of signs in the Village right of way.The court has ruled on Robert Berg’s claims challenging the constitutionality of certain provisions of the Scarsdale Village Code and alleging that Scarsdale Village denied him his First Amendment rights in connection with the enforcement of that local law barring the placement of signage in the Village right of way and the removal of signs from Village-owned property. In general, In Scarsdale, the Village right of way is 13 feet on either side of a paved road, or the first 13 feet from the curb.

In a decision filed on November 12, 2020, Nelson S. Roman, a judge for the Southern District of New York ruled in favor of the Village of Scarsdale finding that the Village code, on its face, is constitutional both under the Fourteenth Amendment (because it gives sufficient notice to Scarsdale residents about what “acts” are prohibited) and under the First Amendment (because it is “content neutral” and narrowly tailored to serve significant government interests ).

However, the court did grant Berg summary judgment on his claim that the Village violated his First Amendment rights by “selectively enforcing the signposting law against political speech relative to other forms of speech.” In other words, before 2018, the Village did permit the posting of political signs around the Village in the weeks before an election but barred any commercial signage. The court found that, if the Village enforces its code, it must be done uniformly for all types of signage.

The dispute dates back to January 2018 when voters were considering a $64.8 million school bond referendum. Berg and his supporters placed “Vote Yes” signs in the Village right of way in front of their homes and in other public places around the Village.

When police removed the signs, Berg sought clarification about the law and was told by the Village Attorney that it was “unlawful for anyone to place sign or advertisement on Village property without permission or authority. However residents can place signs on their property in the portion that is not owned by the Village.”

On February 6, 2018, Berg applied for a preliminary injunction and temporary restraining order to prevent the Village from removing any signs so long as they posted no traffic hazards and he was granted the injunction by the court.

Since February 2018 Scarsdale Police have complied with that injunction and political and commercial signage has been permitted on Village-owned land throughout Scarsdale.

The disputed Village code reads as follows:

“No person other than a duly authorized official or employee of the village shall post, attach or display any sign, notice, placard, poster or other advertising medium to or upon or over any sidewalk, tree, stone, fence, wall, pole, railing of other object in, along, upon or over any street, park or other public place in the village.”

At the time, in response to the injunction, a new provision was added to the Village code that required those who wish to post signs in the Village right of way to apply to the Village Engineer who was required to make a decision on the application within three business days.

Testimony from Village officials shows that the code was rarely enforced. It says, “For at least the past ten years, the Village has allowed for election signs to be posted on the grass area of the Village right of way for a period of time before the date of any election. If a complaint were received the Village would ask that the sign be moved from the right-of-way to one’s property.”

In January 2018 in response to complaints about political signs in the right of way, the Police told the Deputy Village Manager that they were going to collect all signs in the Village right of way in order to be consistent. Berg then applied for a restraining order and when he won it, the Village responded and ordered the police to cease from removing any signs in the Village Right of Way.

Here is a summary of Berg’s case:

Bergs first set of claims were that the provision was “impermissibly vague” and, thus, violated the due process requirement of the Fourteenth Amendment. Berg argued that:

-It did not state the Village right of way was approximately 13 feet from the curb.

-Since the code regarding signs was in a chapter of the code called “Littering and Handbills” that it was only intended to prevent litter, especially from handbills, i.e. not signs.

-It failed to define the words “obstruct’ or “obstruction.”

-The provision is vague because the Village never issued a permit to place a temporary political sign in the Village right of way.

-The provision fails to provide enforcement standards by which the Village Engineer is to evaluate the applications.

The court rejected all of these arguments and found that the provision was not vague and gave fair notice to “persons of ordinary intelligence” of what “behavior or acts” the Village was prohibiting.

First Amendment

The court then turned to the question of whether the Village code violated the First Amendment. Here is what they concluded.

-The court found that the Village code is “content neutral” because the provisions apply to all signs and obstructions without reference to their content or viewpoint.

-The court found that “some regulation of signage is permissible,” if it “is related to esthetic concerns which many courts have found to constitute a significant government interest.” In addition, the code “is intended to advance pedestrian and traffic safety which is in itself a substantial interest.”

-Finally, they found that the Village’s sign regulation clearly leaves ample opportunities for protected speech where it regulates the posting of signs only in public places and not on private property.”

For those reasons, the Court found that the challenged sections of the Village Code do not, on their face, violate the First Amendment.

Finally, the Court turned to Berg’s argument that the “discriminatory enforcement” of the Code violated his First Amendment rights. The court found that, until 2017, the Village did permit political signs to be placed around the Village – but did not permit commercial signage. They said that this extended “preferential treatment” toward political signs and discriminated against other kinds of signs. Any distinction between types of speech would be unconstitutional, but “content neutral” enforcement is permitted because it enforces the sign posting laws without consideration of content.

The court vacated the temporary restraining order that allowed the posting of signs in the Village right of way. The ruling says, “the Village is free to enforce the proscription against the posting of signs on public property, including the Village rights of way, as to all types of signs or as to none of them but it cannot selectively enforce based on whether a sign contains political, commercial or another type of speech.”

Commenting on the decision, Scarsdale Village Manager Steve Pappalardo said, "The Village is pleased that the Court agreed that the Village Code provisions were constitutional and enforceable. We’ll need to review the decision closely and further discuss the operational and legislative decisions amongst the administration, Village Board and legal counsel."

So, what’s the message for Village residents? If you have signs of any kind in the 13 feet in front of your house, move them or lose them!

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