OPINION & ORDER Pro se Plaintiff Robert J. Berg (“Plaintiff’ or “Berg”) brought this action under 42 U.S.C. §1983 against Defendants Village of Scarsdale (the “Village”) and the Village of Scarsdale Police Department (“Police,” collectively, “Defendants”) challenging the constitutionality of certain provisions of the Scarsdale Village Code (the “Village Code”) which governs the posting of signage, including political signs, within the Village. Presently before the Court arc Plaintiffs Motion for Summary Judgment (“Plaintiffs Motion”) (ECF No. 39) and Defendants’ Cross-Motion for Summary Judgment (“Defendants’ Cross-Motion”) (ECF No. 43). As explained below, the Court GRANTS Plaintiffs motion for summary judgment to the extent it asserts that Defendants’ enforcement of the Village Code violated his First Amendment rights by selectively enforcing the signposting laws against political speech relative to other forms of speech and DENIES Plaintiff s motion as to the remaining claims. The Court GRANTS Defendants’ Cross-Motion to the extent it asserts that the relevant ordinances are constitutional under the First and Fourteenth Amendments but DENIES their motion to the extent it asserts that their content-based enforcement was consistent with the First Amendment. BACKGROUND All facts are taken from the Plaintiff’s Statement of Undisputed Material Facts (“Pl.’s SUMF”) (ECF No. 41), Defendants’ Response Pursuant to Local Rule 56.1(b) to Plaintiff’s Statement of Material Facts (“Defs’ SUMF Resp.”) (ECF No. 49); Defendants’ Statement of Undisputed Material Facts (“Defs’ SUMF”) (ECF No. 47); Plaintiff’s Response Pursuant to Local Rule 56.1 to Defendants’ Statement of Undisputed Material Facts (“Pl.’s SUMF Resp.”) (ECF No. 50), the parties’ affidavits, declarations, and exhibits, and are uncontested except where indicated. I. Plaintiff’s Political Speech Plaintiff lives in the Village “in a house that is located approximately 30 feet from the roadway and right-of-way. The roadway and right-of-way is located approximately 16 feet from the wall to the north of the circular driveway and contains what appears to be a large grass area. The curb line is approximately 11 feet from the property line.” Goessl Aff. 8; see Goessel Aff. Exhibit (survey of Plaintiff’s property dated July 22, 2002 and certified to Plaintiff and another). Defendants admit that Plaintiff’s front lawn is “almost entirely within the Village’s right of way of 13 feet.” Defs’ SUMF Resp. 15. As of February 2018, Plaintiff had lived at this location within the Village for 16 years and continues to reside there today. Id. In the weeks before the February 8, 2018 School District School Facilities Bond Referendum (the “Bond Referendum”), some residents, including Plaintiff, expressed their support for the Bond Referendum by posting “Vote Yes” placards, which “generally consisted of a corrugated weatherproofed placard 18 inches long by 12 inches high” made of “[t]wo thin straight wires with cross supports [] stuck into the base of the placard.” Defs’ SUMF Resp. 5. Plaintiff admits that many of these Vote Yes signs were placed in the Village right-of-way. Pl.’s SUMF Resp. 25. Other residents posted “Vote No” signs that were larger in size. Defs’ SUMF Resp. 7. Plaintiff admits that “[t]he Vote No signs did not appear to be posted within the Village right of way.” Id. at 8. On February 1, 2018, Plaintiff emailed the Village Attorney, Police Chief, and Village Manager, informing them that he “had been contacted by several residents” who posted Vote Yes signs “within the 13 foot Village right of way” and claimed that the signs “do not in any way obstruct the Village’s use of the right of way.” Berg. Aff. Ex. 21 (“Feb. 1-2 Email Chain”) (ECF No. 40-36) at p. 4 of 4. Plaintiff asked for clarification on the “Village’s political sign policy with respect to residents placing political lawn signs on their private lots within 13 feet of the curb and on police enforcement of the same.” Id. The Village Attorney responded, in relevant part: because the Village owns the right-of-way, it is unlawful for anyone to place a sign or advertisement on Village property without permission or authority. Subject to the requirements of the [Village Code], residents may place signs on their property, excluding that portion of the property that constitutes the right-of-way. The Village and its police department does not selectively enforce the provisions of the above mentioned statutes. If fact, the police department is in possession of many signs (i.e. real estate, commercial etc….) that were improperly placed in the Village’s right-of-way and subsequently removed by the police. Some of these signs are currently being held for safekeeping. Bob, I believe that your misconception is that property owners own the right-ofway. They do not. The Village owns the right-of-way. Id. Following these emails, Plaintiff removed his Vote Yes sign from within one foot of the street curb (within the right-of-way) where he claims it “had maximum visibility to the traffic passing down the street,” to “leaning against the brick wall in front of [his] house under a tree about 15 or more feet from the street side curb,” where he claims it was “completely out of drivers’ line of sight.” Id. at 25. On February 6, 2018, the Court granted Plaintiff’s application for a preliminary injunction and temporary restraining order, enjoining Defendants from taking any actions against Plaintiff or other persons with respect to posting political lawn signs in the Village right-of-way in front of private homes, so long as said political lawn signs pose no safety or traffic hazards. (ECF No. 6). II. The Village Code The Village Code codifies, among other things, the laws governing the ability to post signs in the Village. Restriction on Posting Signs in Public Places: Chapter 196 of the Village Code is entitled “Littering and Handbills” and contains Section 196-17 “Posting notices in public places” which provides: 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 or other object in, along, upon, or over any street, park or other public place in the village. Affidavit of Stephen Pappalardo (“Pappalardo Aff.”) at 4 (ECF No. 44). That chapter contains definitions at Section 196-2 including for “public place,” which is defined as “any and all streets, sidewalks, boulevards, alleys or other public ways and any and all public parks, squares, spaces, grounds and buildings.” Id. at 6. Written Permit Required to Obstruct Public Places: Section 256-1 provides: No person shall obstruct any street, sidewalk, public easement or other public place without first securing a written permit from the Village Engineer and complying with such regulations affecting obstructions as the Village Engineer may prescribe…. The Village Engineer’s decision to grant or deny a permit application shall be made within three business days after a completed permit application has been received by the Village. Papalardo Aff. 7. The “requirement that the Village Engineer make a decision in three business days after receipt of a completed permit application was added in response to the Court’s decision on Plaintiff’s request for a temporary restraining order.” Id. at 8. Chapter 256 does not have a definition section and the Village Code does not define “obstruct” or “obstruction.” Matturo Dep. Tr. at p. 17 of 41. The Village Manager interprets the term to mean that “[i]f any object is placed or erected in the right-of-way, it thereby excludes anyone else from occupying that space and, hence, is an obstruction.” Pappalardo Aff. 9. The Superintendent of the Department of Public Works testified that “obstruct” under Section 256-1 means “placement of an item or something without permission,” that the Section is not limited to visual obstruction, that an obstruction is “anything that is placed in the village right-of-way, that is not normal to the village right-of-way, in terms of an installation, it doesn’t distinguish between a temporary or permanent.” Berg Aff. Ex. A (“Salanitro Dep. Tr.”) at p. 11 of 17 (ECF No. 40-4). Other Relevant Code Provisions: Section 281-2 defines “right-of-way” as “[g]enerally, the space owned by the Village extending approximately 13 feet from each curbline, but may include specific lands under an agreement or definition of law.” Berg Aff. Ex. 9 (“1/29/2018 Altizio Email”) (ECF No. 40-24). The Village Engineer testified that A right of way exists on either side of the paved area of a road in the Village, that areas is reserved when the original subdivision of the property is approved or filed for various municipal purposes, including future road widening, installation of sidewalk and utilities or other furtherance of other permissible municipal purposes. As a general matter, for a 50-foot road, the Village right-of-way is 13 feet on either side of the paved roadway in Scarsdale. Affidavit of David Goessel (“Goessl Aff.”) 15 (ECF No. 45); see Berg Aff. Ex. 27 (“Pappalardo Dep. Tr.”) at p. 3 of 21 (ECF No. 40-42). Plaintiff admits to these definitions of the Village’s right-of-way. Pl.’s SUMF Resp.
3 4. The Village Engineer’s review of an application for the permit mentioned in Section 256-1 is limited to the considerations set forth within Section 294-1, all of which relate to “potential safety hazards.” Pappalardo Aff. at 9. Section 294-1(B) provides No shrub, fence, wall or other structure may be located on any land within 15 feet of the edge of the traveled way of any street within the limits of the village if such shrub, fence, wall or other structure obstructs or interferes with the view of drivers of vehicles on a driveway from a point on such driveway 15 feet from the traveled way to a minimum distance of 7 5 feet along the street, at a point more than 30 inches above the street level, and if, in the opinion of the Village Manager, after consulting with the Police Department, it creates a traffic hazard. Id. Section 310-2 defines “structure” as “[a]n assembly of materials forming a construction designed for useful purposes, including, among others,…signs…” Id. at 10. Although Sections 196-17 and 256-1 were adopted before the current Village officials were in office, various Village officials testified that these provisions are intended to “combat visual blight” and “ensure that anything placed in the Village right-of-way does not create a danger” by forcing pedestrians into the road or otherwise distracting drivers. Pappalardo Aff. 11; Salanitro Dep. Tr. at p. 7 of 17 (“to prevent any kind of visual obstruction or hazard to the general public”). III. Enforcement The Village is run by the Mayor and Village Manager, to whom the Chief of Police and Superintendent of Public Works report. Affidavit of Andrew Matturo (“Matturo Aff.”) 3 (ECF No. 46); Pappalardo Aff. at 2. The Superintendent of Public Works, in turn, supervises various divisions including the Engineering Division. Salantiro Dep. Tr. at p. 5. 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.” Pappalardo Aff.
