Matter of Van Wagner Communications, LLC v Board of Standards
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Matter of Van Wagner Communications, LLC v Board of Standards 2014 NY Slip Op 30271(U) January 28, 2014 Supreme Court, New York County Docket Number: 100418/13 Judge: Donna M. Mills Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON 1/31/2014 '!:/ ]h the Matter VANWAGN~R . . . Petiti9i{~r? < ... ·. , , i ·, · \ >: · For aJudgmentPursmtnttoArticle 78 .offh¢G1~HRrl;lQti9e· Lfiw and Rµles ., . . . . . .;;,., . ··. ,,·against- · 1 . , _,... _ i:\'\N: / ' ' _., -:-- ·;'<-: ,f:;.;_.-~:~:<~<-L·- ,~ BOARD OF STAN·D~RJ)s. ANDAPPiAts .CITY OF NEW Y:qRJ(;: . . .. . . of?i THE ·. ·. ·RespQn.c.ten~: · . 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FINAL brsromloN [* 2] SU£REME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 58 ------------- - --- -------------------x In the Matter of the Application of VA~ WAGNER COMMUNICATIONS, LLC, Petitioner, Fox a Judgment Pursuant to Article 78 of the Civil Practice Law And Rules -against- Index No. 100418/13 BOFRD OF STANDARDS AND APPEALS OF THE CIT'i OF NEW YORK, Respondent, - ---------------------------- ----------x DONR'A MILLS: Petitioner Van Wagner Communications, LLC (Van Wagner) brings this Article 78 proceeding to annul the February 5, 2013 resolution (Resolution) of the Board of Standards and Appeals of the City of New York (BSA), which affirmed the March 12, 2012 decision of the Manhattan Borough Commissioner of the Department of the City ldings of New York (DOB) denying registration for two commercial advertising signs (Signs) that have been leased by Van Wagner since 1990. Petitioner contends that the Resolution is arbitrary and capricious, and that, in adopting discretion. The petition also see it, the BSA abused its an order directing the BSA to grant petitioner's appeal, and an order awarding petitioner costs, s, and disbursements. The Court notes that, while petitioner argues that the Resolution is wrong, pet how the BSA abused The Signs, one ioner nowhere explains s discretion in adopting of which faces 1 northwest and the other [* 3] southwest, are installed on the roof of the building located at 620 12th Avenue in Manhattan, between 47th and 48 Streets (Building). The Signs were placed so as to be visible from cars traveling over the West Side Highway (Highway) . In December collapsed and between the Streets. 1973, cars a portion of the were barred from then-elevated Highway travelling on the Battery and 46th Street and between Highway 72nd and 82nd In 1976, demolition of the Highway commenced. However, demolition was not completed, and construction work to rebuild the Highway, now at grade, did not commence until early 1989. petition, exhibit F. The business of Van Wagner, sell Verified and of other outdoor advertising companies, is to advertising space on signs that they own or lease. The Signs became unmarketable to advertisers after the collapse of the Highway, and they were unused until the Highway reopened. Because the Building is located in an M2-4 manufacturing zoning district within the Special Clinton District, signs may, generally, Resolution (ZR) § be placed upon it. 42-52. advertising New York City Zoning While ZR§ 42-55 bars the display of such signs within 200 feet of an arterial highway, such as the Highway, ZR 42-53 § (a} provides for the grandfathering, in certain circumstances, of signs that would, otherwise, be barred by section 42-55: "Any advertising sign erected, structurally altered, relocated or reconstructed prior to June 1, 1968 within 660 feet of the nearest edge of the right-of-way of an arterial highway, shall have the legal non-conforming use status pursuant to section 52-83, to the extent of its size existing on May 31, 1968." 2 [* 4] A legal non-conforming unauthorized the but Resolution, as that use of property result of an is lawful use to that the is Zoning because it was See generally Matter of Toys 89 NY2d 411, 417 (1996). "R" Us v Silva, a amendment nonetheless authorized prior to such amendment. is It is undisputed that the Signs were installed in the 1940s, and that they have been used for advertising since at least 1953. Accordingly, presumptively, within the ambit of ZR 42-55. they come, However, the legality of a non-conforming use may be lost by an interruption of such use. ZR § 52-61 provides, in relevant part, "If, for a continuous period of two years, either the non-conforming use of land with minor improvements is discontinued, or the active operation of substantially all the non-conforming uses in any building or structure is discontinued, such land or building or structure shall thereafter be used only for a conforming use. Intent to resume active operations shall not affect the foregoing. "The provisions of this Section shall not apply where such discontinuance of active operations is directly caused by war, strikes or other labor difficulties, a governmental program of materials rationing, or the construction of a duly authorized improvement project by a governmental body or a public utility company." Courts have expanded the last contingency set forth in § 52-61 to include construction that is carried out by private parties, where such construction is performed pursuant to a governmental requirement or permit. Chin, 305 AD2d nonconforming 194, use in See e.g. Matter of 149 Fifth Ave. 194-195 order inspection and repairs); Appeals of Inc. Vil. (1st to Matter Dept 2003) comply with of Hoffman of Russell 3 Gardens, v Corp. (interruption legally Board of mandated of Zoning 155 AD2d 600 v & (2d Dept [* 5] 1989) (reconstruction of a restaurant, after a fire, was performed pursuant to a municipal building permit). Title I, Rule 49 of the Rules of the City of New York (Rule 49), adopted pursuant to Local Law 31 of 2005, requires that the use of any outdoor advertising sign that cannot be registered with DOB must be discontinued. On September 1, 2009, Van Wagner applied to the New York City Department of Buildings (DOB) for registration of 57 outdoor signs that it controlled, including the two that are at issue here. DOB rejected registration, documentation provided by petitioner was proof "of advertising periods." thereupon, sign Administrative appealed to use during record the at BSA. noting inadequate relevant to the support establishment 245-246. After that Van accepting Wagner, multiple submissions and holding a public hearing, the BSA denied the appeal by the resolution that is here reviewed. The BSA noted that the Signs were not used between 1974 and 1989, running of the two-year tolled, for two reasons. limit on and it held that the interruption of use was not First, the BSA found that the closure of the Highway "did not directly cause the discontinuance of the Signs but rather created a market condition in which the Appellant may have been unable to lease the Signs and made the decision to discontinue their use." Certified Record at 649. and closure constitute of "the the Secondly, the BSA found that the collapse Highway commencement "in and of 'the of themselves, " construction of did not a duly authorized improvement project by a governmental body.'" and that Van Wagner had provided "no evidence that the Signs were in use as 4 [* 6] advertising signs during highway and the pe actual od between the collapse of the commencement the reconstruction [thereof]," more than two dismantl ars later. and Id. at 649. "Judicial review of an administrative determination is limited to whet r it was arbitrary or capricious or without a rational basis in the administrative record, and once it is determined that the agency's conclusion had a sound basis in reason, the judicial function comes to an end." 78 Div., AD3d 535, 535 Matter (1st Partnership 92 LP & Bldg. Mgt. & Community Renewal, Haus. Rucker v NYC/NYPD Dept 2010), Matter v State of N.Y. Co., Inc. 46 AD3d 425 citing cense (1st Dept 2007), of Div. of a 11 NY3d 859 (2008). It was hardly irrational interruption in the use start dernoli tion, for the BSA to conclude that the the Signs from January 1974 until the which its elf preceded the st:art of reconstruction by approximately 13 years, was not directly caused by "the construction of a duly authorized improvement project by a governmental body." i ti oner refers to "the closure of the elevated highway as part of a government-run improvement project," 'construction of a duly authoriz and to " by a governmental body,' speci improvement project closure cally, reconfiguration of the West Side Highway" (memorandum of law at 1 and 2), but the Highway was not closed as plan to rebuild it a different way. recognizes, it closed unacceptably dangerous was (see because of a governmental As pet travel memorandum of 5 and law ioner elsewhere upon at it 4) , became and, as [* 7] petitioner's own exhibits show, there were years-long controversies as to what would replace it, which preceded any reconstruction. The closing of the Highway to traffic, by itself, can no more be described as part of a governmental improvement project than a fire department order sealing a structurally weakened building. Administrative Code of City of New York §§ 15-227 See (b). The closing of the Highway may well have made it impossible to sell the advertising space on the Signs. RZ § 52-61, however, does not take The second paragraph of account of a diminution of economic value, and it does not provide that any contingency that causes a two-year, or more, discontinuance of a nonconforming use bars application of the first paragraph. Rather, it sets forth specific causes of discontinuance, the occurrence of any of which The more than two-year bars application of the first paragraph. interruption in the use of the Signs, between January 1974, when the Highway was closed and 1976, when demolition began, was not directly caused by any of the contingencies set forth in § 52-61. Because petitioner's the second appeal reason suffices that for the the BSA gave result for reached denying in the Resolution, this court needs not discuss the first reason given by the BSA. Accordingly, ADJUDGED that dismissed. JUOG~~~~ UNFILEO county Clerk ot been entere To This judgment has n . served based hereon. it ianlf.tf\a~':tOf entrycannot ~~orized representative must obtain entry, counsel or au ment Clerl<s DesK (Room theaP{.fea~tnipar~t~-i~~ 1416), ,,_. -- _,. .. .....~ ~-"P.--.---~~~--J~··· .......... .....s . ¢~'*'- ana the .. r'" .,.,. . A» ,.,.,..:....v proce-~~i.ng .o.~~~.~: .... 11· ¢ ¢ is
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