I agree entirely with the legal principles enunciated by Judge Hunter in his Memorandum Opinion. I believe, however, that the record presents a genuine issue of material fact as to whether the removal of the billboards was the result of any state-coerced action.
I note that in Exhibit M-4, a letter of July 17, 1982, from Borough Manager Smith to Mr. Rosenstein, the following is stated:
Would you kindly advise whether CITIBANK is in fact terminating the leases for this billboard? I know you have received additional inquiries regarding this piece of property, and this office would be the first to encourage a higher level of use for it. However, the removal of the billboard would be an initial step and positive statement for Citibank to make with this community, and I hope you will implement its removal at the earliest opportunity.
While this letter was written after Citibank requested Maxwell to remove the bill*90boards and after suit was filed, in my view it would be admissible to characterize the tenor of the communications between the Borough and Citibank. This letter directly links the removal of the billboards to a receptive climate for and favorable action upon Citibank's future development plans for its real estate in the Borough. While plaintiff does not appear to have a strong case, I believe that this letter and other evidence adduced in discovery foreclose a summary determination that the removal of the billboards did not result from state-coerced action.1 Accordingly, I respectfully dissent.2
. I do not think that the disclaimer of Mr. Rosenstein precludes recovery by the plaintiff. After all, Citibank is alleged to have been currying favor with the Borough. While a factfind-ing on a full-trial record that Citibank was in fact not coerced would be conclusive, Rosen-stein's concession in and of itself cannot bind plaintiff Maxwell.
. I recognize that my position logically requires me to reach the question reserved by the majority in footnote 3. I agree with Judge Hunter that the question is extraordinarily difficult. I do not view Metromedia as conclusive. Moreover, I note that the record admits of the possibility that the Borough sought removal of the billboards for purely aesthetic reasons or for discriminatory reasons, a possibility that gives rise to other arguments by plaintiff. Cf. Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, - US. -, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (municipalities have a weighty, essentially aesthetic interest in proscribing intrusive and unpleasant formats for expression). I am not prepared on the basis of the present record and briefs to join the majority by resolving vexing substantive first amendment questions that are best left to another day.