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The Cold Spring Village Code may be a content-neutral ordinance when it comes to political signs, but the village must change its enforcement procedures because exceptions to the rule take too long for approval, the U.S. Court of Appeals for the Second Circuit said in finding those procedures violate the First and Fourteenth Amendments. Lusk v. Village of Cold Spring, 05-4999-cv, was decided by circuit Judges Robert Sack and Chester Straub, and Eastern District Judge David Trager, sitting by designation. Judge Sack wrote the opinion. Plaintiff Donald Lusk posted several signs outside of his home protesting a planned real estate development for the village’s Hudson River waterfront. One sign read, “Help save the waterfront from 40′-foot high monster condos.” When Mr. Lusk was served with a violation notice informing him he had run afoul of Chapter 64 of the Cold Spring Village Code, he filed suit in the Southern District under 42 U.S.C. �1983 seeking declaratory and injunctive relief, nominal damages and attorney’s fees. Judge Colleen McMahon enjoined some of the code’s provisions but concluded that the U.S. Constitution was not violated by Chapter 64, which states that any physical alterations to buildings within the historic district must be given prior approval by the Village’s Architectural and Historic District Review Board. She found the chapter was a content-neutral regulation of speech that furthered a “substantial government interest” and still left Mr. Lusk alternative channels of communication. At the circuit, Judge Sack wrote that Chapter 64 “is constitutionally invalid.” He said, “It is one of the typical attributes of prior restraints – that Chapter 64 acts to ‘freeze’ the speech of the plaintiff and others like him who reside in the historic district and who wish to use signs to convey a message,” at least during the period of time “it takes them to obtain a certificate of appropriateness” from the village – “that we find to be at the heart of the ordinance’s invalidity.” The U.S. Supreme Court decided a “markedly similar” case to the Lusk matter, Judge Sack said, in City of Ladue v. Gilleo, 512 U.S. 43 (1994), where a resident had violated a local ordinance by placing on her property a sign protesting the first Gulf War. The LaDue Court noted that the valid purpose behind the city ordinance did not justify the almost complete foreclosure of a “venerable means of communication that is both unique and important.” Judge Sack wrote that the LaDue Court “concluded that even had the regulation been content neutral, in light of the unique characteristics of yard signs and their importance as a means of communication, it was ‘not persuaded that adequate substitutes exist[ed] for the important medium of speech that Ladue ha[d] closed off.” The approach in LaDue was similar to that taken by the U.S. Supreme Court in Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150 (2002), Judge Sack said, where “legitimate” concerns about fraud and crime and the privacy of residents did not justify a regulation that required door-to-door solicitors to first obtain a permit from the mayor. Judge Sack said those decisions expressed concern over laws where an entire medium of expression was being foreclosed. So “even if it is content neutral, the reviewing court in such cases must balance the state’s interest in regulating speech against the individual and public’s interest in protecting it,” he said. And under City of LaDue, Judge Sack said, “the erection of signs on residential property, a unique and important medium of expression, may not be so broadly burdened.” The problem with Chapter 64, he said, was that it bars the speech for as long as 75 days while the village considers the sign owner’s request for a certificate of appropriateness. “Where, as here, a property owner wishes to take a public position on a pressing public issue, for example, or on the qualifications of a candidate for public office in an imminent election, the time required to obtain approval may prevent him or her from doing so until after the public issue is settled or the election is over,” he said. “Such belated approval is of little consolation to Lusk and those similarly like him in this regard, and of little use to their neighbors or the political process.” Stephen Bergstein of Thornton, Bergstein & Ullrich in Chester represented Mr. Lusk. James Randazzo of Servino, Santangelo & Randazzo represented the village. Mark Hamblett can be reached at [email protected].

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