Matter of Atlantic Outdoor Advertising, Inc. v Srinivasan

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Matter of Atlantic Outdoor Advertising, Inc. v Srinivasan 2012 NY Slip Op 32827(U) November 23, 2012 Sup Ct, New York County Docket Number: 103078/12 Judge: Peter H. Moulton Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 121312012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY The following papers, numbered 1 to were read on this motion to/for PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... Answering Affidavits - Exhibits Replying Affidavits Cross-Motion: 0 Yes Upon the foregoing papers, it is ordered that this HwtioTT Dated: -. PL T\jRTI. h 6 U L T O N :heck one: &I 3heck if appropriate: J. S. C. DlSP&i?%$ kf wWb%@INAL DISPOSITION a DO NOT POST SUBMIT ORDER/ JUDG. REFERENCE SETTLE ORDER/ JUDG. [* 2] ATLANTIC OUTDOOR ADVERTISING, I N C . Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules, -against- Index No. 103078/12 MEENAKSHI SRINIVASAN, Chairperson, CHRISTOPHER COLLINS, Vice-chairman DARA OTTLEY-BROWN, SUSAN M. HINKSON, R.A. EILEEN MONTANEZ, P.E., Commissioners, C o n s t i t u t i n g t h e BOARD OF STANDARDS AND APPEALS, and the DEPARTMENT OF BUILDINGS I n this Article 78 proceeding petitioner seeks to vacate a resolution of the New York City Board of Standards a n d Appeals ("the BSA") dated June 5, 2012 ("June 5th Resolution"). I n the June Sth Resolution the BSA upheld a determination of the New York City Department of Buildings ("the DOB") . In that determination, the DOB f o u n d that a large r o o f t o p advertising sign near an approach to the Ed Koch Queensboro Bridge in Queens was not a "grandfathered" advertising sign that is a permitted nonconforming use under the City's Zoning Resolution. The practical import of the DOB's and 1 [* 3] decisions is that the sign cannot be used to advertise BSA's products n o t being sold in the building upon which the sign rests. Petitioner is a tenant in exclusive possession of the rooftop area and sign. It seeks to continue to let the sign to advertisers. BACKGROUND The sign in question, located on top of 23-10 Queens Plaza South, was erected in 1936 by The Eagle Electric Manufacturing Company ("Eagle"). logo, and various The original sign featured the Eagle name and products manufactured by Eagle, Been In Your statements: 1) "Since 1920 We've "Perfection is not an Accident." Home," and two and 2) For its day the sign was elaborate, involving t h e use of neon and other expensive aesthetic touches. , 23-10 Queens Plaza South was one of Eagle's manufacturing plants. No wholesale or retail ,sales were conducted in the building. Eagle remained in business until approximately 2000. building is currently vacant. The In or around 1999, the sign was leased to Atlantic, which began to use the sign to display different advertisements. As a rule, advertising signs located specified distances from C i t y highways have been subject to 2 a general prohibition under the [* 4] City's Zoning Resolution since 1940. (Zoning Resolution § 42-55,) It is undisputed that 23-10 Queens Plaza is a location that falls into that general prohibition. However, the Zoning Resolution makes advertising signs erected prior grandfathered. an exception far to June 1, 1968, which are (Zoning Resolution § '42-55(c)(1).) Petitioner' argues that the original sign was an advertising sign, that it was grandfathered, and that it therefore can continue to be used for advertising. The DOB found, and the BSA agreed, that the Eagle sign was not an advertising sign, but rather an "accessory u s e " to Eagle's use of the building as a manufacturing plant. Both "advertising sign" and "accessory use" are defined terms in the Zoning Resolution. This proceeding hinges on whether BSA's decision that the sign was an "accessory use" was arbitrary and capricious. Petitioner seeks to bring the sign within the definition of "advertising signs." Respondents d e f e n d their position that the sign is properly characterized as an "accessory use" which bar's any use of the sign to advertise products unrelated to economic activity occurring within the host building. DISCUSSION Judicial review of BSA action begins with the recognition that the BSA "is comprised of experts in land use and planning, and that 3 [* 5] its interpretation of deference." the Zoning Resolution is entitled to (In the Matter of New Y o r k Botanical Garden v Board of Standards and Appeals of the Citv of New Yo-rk, 91 NY2d 413, 41819.) As summarized by the Court of Appeals in the Botanical Garden case: So long as [the B S A ' s ] interpretation is neither irrational, unreasonable, nor inconsistent with the governing statute it will be upheld. Of course, this principle does not apply to purely legal determination>s; where the question is one of pure legal interpretation of statutory terms, deference to the BSA is not required. However, when applying its special expertise to a particular field to interpret statutory language, an agency's rational construction is entitled to deference. (Id at 419 [internal quotations and cite omitted].) Petitioner argues that this matter concerns only statutory construction which requires no deference to the BSA. Respondents argue that the matter concerns providing content f o r the relevant portions of the Zoning Resolution, and this task requires the BSA to apply i t s special expertise, Section 12-10 of the Resolution Zoning "advertising sign" and "accessory use. defines 'I An "advertising sign" is a sign that directs attention to a business, profession, commodity, service or entertainment conducted, sold, or offered elsewhere than upon the same zoning lot and is not accessory to a use located on the zoning lot. An "accessory use": 4 both [* 6] (a) is a use conducted on the same zoning lot as the principal use to which it is related (whether located within the same or an accessory building or other structure, or as an accessory use of the land) . . . ; and ( b ) is a use which is clearly incidental to, and customarily found in connection with, such principal use; and (c) is either in t h e same ownership of such principal use, or is operated and maintained on the same zoning lot substantially for the benefit or convenience of the owners, occupants, employees, customers o f the principal use. Both parties a g r e e that subparagraph (c) is satisfied, as petitioner concedes that the sign and the building were b o t h owned by Eagle. Petit5oner argues that neither subparagraph (a) or (b) is satisfied because Eagle did not sell any of i t s products at 23-10 Queens Plaza and the sign therefore did n o t have any function "accessory" to the building. Petitioner asserts that the sign was n o t designed to bring customers to 23-10 Queens P l a z a ; rather it was designed to direct consumers to Eagle products sold in stores. To distinguish it from an accessory sign, petitioner points to the sign's elaborate decoration and aesthetics. Petitioner distinguishes the sign from the more utilitarian signs on Eagle's other buildings in Queens, which simply s t a t e d the Eagle name and the factories' plant numbers. By contrast, the sign on 23-10 went far beyond announcing a company's presence in a given building, petitioner argues. 5 [* 7] These arguments fall short of demonstrating that the BSA acted arbitrarily and capriciously. It was not unreasonable for the BSA to find that the sign drew attention to the company occupying that lot, and fherefore was incidental to the principal use of that lot. The definition of \'accessory use" in the Zoning Resolution does not require that the "use" in question be related to a purchasing opportunity at the building. determining whether a sign The BSA is entitled to deference in such as the one at issue "customarily" f o u n d in connection with the principal use. was This is fundamentally a fact-based question "which will clearly benefit from the expertise of specialists in land use planning'' Botanical Garden, supra, 91 AD2d at 420, AD3d 1218 [terms "single family (see cf. Atkinson v Wilt, 94 residence" and "tourist accommodation" defined in zoning resolution and do not require expert interpretation].) Petitioner argues that the BSA's determination in this case is at odds with prior determinations in similar cases and that this is evidence that it acted arbitrarily and capriciously. These prior cases were discussed in the BSA resolution challenged herein, and the BSA's distinguishing of these prior cases is sound and reasonable. Where, as here., t h e BSA's interpretation of the applicable Zoning Resolution provisions is neither irrational, unreasonable nor inconsistent with other provisions of the Zoning Resolution, it ' 6 [* 8] must be upheld. &Deals (See Matter of P.M.S. Assets v Z o n i n u Board of of Villase of Pleasantville, 98 N Y 2 d 683.) CONCLUSION For the reasons stated, It i s hereb'y ORDERED AND A D J U D G E D that the petition is denied and this Article 78 p r o c e e d i n g is dismissed, without costs and disbursements. This constitutes the d e c i s i o n and judgment of the c o u r t DATE: November 2 3 , 2012 J.S.C. -.. , UNFlLED JUDGMENT judgment has not been entered by the COunW clerk and notice of entry cannot be served based hereon, TO obtain entry, counsel or authorized represectative must appear in person at the Judgment Clerk's Desk (Room 141 B), 7

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