Matter of 121 Varick St. Corp. v Board of Stds. & Appeals of City of New York

[*1] Matter of 121 Varick St. Corp. v Board of Stds. & Appeals of City of New York 2016 NY Slip Op 50224(U) Decided on February 4, 2016 Supreme Court, New York County Freed, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 4, 2016
Supreme Court, New York County

In the Matter of the Application of 121 Varick Street Corp., Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

against

Board of Standards and Appeals of The City of New York, Respondent.



101707/15



For Petitioner:

Mark R. Kook, Esq.

121 Varick Street Corp.

270 Madison Ave., Suite 1203

New York, NY 10016

For Respondent:

Michael Pfautz, Esq.

Corporation Counsel of the City of New York

Counsel for Respondent Board of Standards and Appeals of the City of New York

100 Church Street, Rm. 4-313

New York, NY 10007
Kathryn E. Freed, J.

RECITATION, AS REQUIRED BY CPLR 2219 (a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

PAPERS NUMBERED

NOTICE OF PETITION AND PETITION...1, 2 (Exs. A-I)

MEMORANDUM OF LAW IN SUPPORT OF PETITION...3

VERIFIED ANSWER AND EXHIBITS ANNEXED...4 (Ex. A; R. Pgs. 1-1145)

MEMORANDUM OF LAW IN OPPOSITION...5

REPLY AFFIRMATION...6

REPLY MEMORANDUM OF LAW...7

UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THE MOTION IS AS FOLLOWS:

In this Article 78 proceeding, petitioner 121 Varick Street Corp. seeks an order and judgment annulling the Resolution of respondent Board of Standards and Appeals of the City of New York ("BSA") dated July 21, 2015 and filed August 21, 2015 ("the Resolution"), which upheld the decision of non-party New York City Department of Buildings ("DOB"), dated August 28, 2013, that revoked petitioner's permit ("the permit") for an advertising sign ("the sign") on the south-facing wall of a building located at 121 Varick Street, in the County, City and State of New York ("the premises"). Petitioner also moves for an order awarding costs and disbursements of this proceeding and granting such other and further relief as this Court deems just and proper. After oral argument, a review of the papers presented and the relevant statutes and case law, the petition is denied.

FACTUAL AND PROCEDURAL BACKGROUND:

The initial facts are not in dispute. On March 5, 1998, under application no. 101835221, the DOB issued petitioner a permit for an illuminated advertising sign measuring 75 feet high by 75 feet wide approximately fifty feet above the curb level on the south-facing wall of a twelve-story building located at the premises, which occupies the southwest corner of the intersection of Varick Street and Dominick Street in an M1-6 zoning district within the Special Hudson Square District. Ex. A, at 1.[FN1] The 5625-square-foot sign is located at the premises on the northeast quadrant of the block north of the Entrance Roadways to the Holland Tunnel in Manhattan, which is bordered by Dominick Street to the north, Varick Street to the east, Broome Street to the south, and Hudson street to the west. Id. In the BSA's Resolution, it noted that the Holland Tunnel consists of a central subaqueous portion with enclosed approach tunnels on either side of said portion that are connected to the street by open-cut approach ramps. Id. The enclosed approach tunnel diverges into two tubes: the "South Tube," which is Manhattan bound, leads to St. John's Rotary, located south of Laight Street between Varick and Hudson Streets; the "North Tube," which is New Jersey bound, is accessible via several entrance roadways bordered by Canal Street and Watts Street to the south, Hudson Street to the west, Varick Street to the east, and Broome Street to the north ("the Entrance Roadways"). Id. The block on which the premises is located is bisected by an open-cut approach that connects the North Tube to the Entrance Roadways. Id., at 2. The entrance to the open-cut approach to the North Tube is located on the north side of Broome Street, between Varick and Hudson Streets ("the Broome Street Entrance"). Id. The vantage point of the sign is located north of the Broome Street Entrance on the open-cut approach to the North Tube and is within view of the Holland Tunnel with a latitude of 40.724658 and a longitude of -74.007033. Id., at 1-2.

Petitioner received approval for the sign from the DOB when it was first raised in 1998. At the time the permit was issued, New York City Zoning Resolution ("ZR" or "Zoning Resolution") 42-53 applied to the M1-6 zoning district and prohibited advertising signs located within 200 feet of and within view of an arterial highway. On June 13, 2011, petitioner's permit was revoked by the DOB on the basis that the sign "is within 200[ ]feet of view (intersection of Varick St and Broome St) of an arterial highway (Holland Tunnel)" and is not permitted pursuant [*2]to ZR 42-55(a)(2). Ex. B; Ex. A, at 2. For the purposes of this litigation, petitioner concedes that the relevant provisions of ZR 42-53, ZR 42-55's predecessor, and ZR 42-55 are identical. Petition, at ¶ 5 n.1.

The BSA upheld the DOB's determination and itself determined that the Tunnel Approach, the second approach identified by the DOB as the roadway that begins at the Broome Street Entrance and continues to the North Tube (R. 7),[FN2] "is an approach to the Holland Tunnel and that the Sign is within 200 feet and within view of the Tunnel Approach." (R. 9). For the purposes of the appeal to the BSA, the BSA had to consider whether the Tunnel Approach constituted an arterial highway for the purpose of ZR 42-55, meaning: "(1) whether it is shown on the City Map and the Master Plan as a principal route, parkway or toll crossing, and (2) whether it has been designated by the City Planning Commission [ CPC'] as an arterial highway." Id. The BSA found that the Tunnel Approach does constitute an arterial highway and that "it is uncontested that the Master Plan depicts the Holland Tunnel." Id. Further, the BSA credited the DOB's argument: "that the Master Plan, a macroscopic document, need not depict the Tunnel Approach . . . or any approach, in order for such approach to be subject to the regulations set forth in ZR § 42-55 where, as here, the accompanying CPC Report designated approaches to the Holland Tunnel and such designation is consistent with Appendix H." Id. In other words, the BSA found that the Tunnel Approach, the ramp leading from the street to the underground tunnel itself, was an arterial highway meeting both requirements of the definition. Id.

Petitioner now moves for an order annulling the Resolution of the BSA, maintaining that the BSA committed an error of law and acted arbitrarily and capriciously in finding that there is an arterial highway, as defined in ZR 42-55, within 200 feet and within view of the sign. Specifically, the BSA failed to apply the first element of the definition of "arterial highway" in ZR 42-55 to the roadway claimed to be an arterial highway and that said roadway was wrongly designated as an approach. In support of its petition, petitioner annexes, inter alia, the BSA Resolution; the DOB objections and permit revocation; petitioner's ZRD1 Zoning Resolution Determination Form seeking the reinstatement of the permit; the City Planning Commission Report associated with the Master Plan Highways, CP 3493, report no. 3254, April 11, 1945 ("the 1945 CPC Report"); the DOB determination; the DOB's first submission, dated August 26, 2014, in response to the September 26, 2013 appeal; DOB's submission dated January 2, 2015 in response to questions raised at a BSA hearing on September 9, 2014; petitioner's response dated April 14, 2015; and petitioner's submission dated June 25, 2015 setting forth a summary of its arguments in response to a May 19, 2015 BSA hearing.

The relevant statutory provision that was applicable when the permit was approved in 1998, ZR 42-53, entitled "Additional Regulations for Advertising Signs" for districts M1, M2, and M3, states, in relevant part, as follows:

In all districts, as indicated no advertising sign shall be located, nor shall an existing advertising sign be structurally altered, relocated or reconstructed, within 200 feet of an [*3]arterial highway or of a public park with an area of one-half acre or more, if such advertising sign is within view of such arterial highway or public park. For the purposes of this Section, arterial highways shall include all highways which are shown on the Master Plan of Arterial Highways and Major Streets, as "principal routes", "parkways", or "toll crossings", and which have been designated by the City Planning Commission as arterial highways to which the provisions of this Section shall apply. Beyond 200 feet from such arterial highway or public park, an advertising sign shall be located at a distance of at least as many linear feet therefrom as there are square feet of surface area on the face of such sign.

Id. The current statutory provision that applied in 2011 when the permit was revoked is ZR 42-55, entitled "Additional Regulations for Signs Near Certain Parks and Designated Arterial Highways" for districts M1, M2, and M3, states, in relevant part: In all districts, as indicated, the provisions of paragraphs (a), (b) an (c), or paragraph (d), of this Section, shall apply for signs near designated arterial highways or certain public parks.(a)Within 200 feet of an arterial highway or a public park with an area of one-half acre or more, signs that are within view of such arterial highway or public park shall be subject to the following provisions:

(1) no permitted sign shall exceed 500 square feet of surface area; and

(2) no advertising sign shall be allowed; nor shall an existing advertising sign be structurally altered, relocated or reconstructed. (b)Beyond 200 feet from such arterial highway or public park, the surface area of such signs may be increased one square foot for each linear foot such sign is located from the arterial highway or public park. . . .For the purposes of this Section, arterial highways shall include all highways that are shown on the Master Plan of Arterial Highways and Major Streets as "principal routes," "parkways" or "toll crossings," and that have been designated by the City Planning Commission as arterial highways to which the provisions of this Section shall apply.

Id. Further, ZR Appendix H, entitled "Designation of Arterial Highways," states in relevant part: Pursuant to the provisions of [ZR] Section 32-66 and 42-55 (Additional Regulations for Signs Near Certain Parks and Designated Arterial Highways) of the Zoning Resolution of the City of New York, the City Planning Commission has designated as arterial highways to which the provisions of Sections 32-66 and 42-55 apply, the following arterial highways which appear on the City Map and which are also indicated as Principal Routes, Parkways and Toll Crossings on the duly adopted Master Plan of Arterial Highways and Major Streets.

. . .

TOLL CROSSINGS. . .Holland Tunnel and Approaches.

Id. Additionally, the definition of approach, set forth at Title 1 of the Rules of the City of New York section 49-01 (1 RCNY 49-01), entitled "Definitions," states that: "The term approach' as [*4]found within the description of arterial highways indicated within appendix C of the Zoning Resolution, shall mean that portion of a roadway connecting the local street network to a bridge or tunnel and from which there is no entry or exit to such network." Id.

POSITIONS OF THE PARTIES:

As stated above, petitioner argues that the BSA committed an error of law and acted arbitrarily and capriciously in finding that there is an arterial highway, as defined in ZR 42-55, within 200 feet and within view of the sign. Specifically, the BSA failed to apply the first element of the definition of "arterial highway" in ZR 42-55 to the roadway claimed to be an arterial highway and that said roadway was wrongly designated as an approach. Petitioner contends that the sign does not fall within the regulations at all because it is not an approach to an arterial highway. Petitioner asserts that none of the entrance roadways to the Holland Tunnel appear in the City Map and that none of them are shown on the Master Plan Map as a "principal route," "parkway," or "toll crossing," and accordingly none of them satisfy the first element of an arterial highway as stated in ZR 42-55, which requires that both elements must be satisfied in order to designate a roadway as an arterial highway by the use of the word "and" in the statute and the definition of the conjunction under ZR Rules for Construction of Language 12-01(c).

Petitioner further argues that the definition of approach contained in 1 RCNY 49-01 was not effective in 1998 when the original application for the permit was approved, instead the law became effective on August 25, 2006, approximately eight years later, and cannot be applied retroactively. Petitioner also argues that the BSA's finding that the approaches are effectively shown on the Master Plan Map is not the same as the approach actually being shown on the Map. Accordingly, despite the fact that Appendix H contains the designation of the "Holland Tunnel and approaches" as an arterial highway, petitioner contends that this second prong of the definition of an arterial highway need not be reached because the first element is not satisfied and because the term "approach" had no legal definition at the time.

Additionally, petitioner argues that the advertising sign is not within view of the North Tube of the Holland Tunnel. Petitioner argues that, since the North Tube, itself, is the portion of the Holland Tunnel that is underground and since only the Holland Tunnel and not its approaches are shown on the Master Plan Map, the approaches are not themselves arterial highways. Thus, petitioner argues, that the advertising sign is not within 200 feet of an arterial highway and does not violate ZR 42-55. Petitioner also argues that the sign would not be within view of a traveler in the North Tube of the Holland Tunnel as such a person would not be able to see the sign from that vantage point.

Petitioner also raises the argument that, under the enabling legislation for the Holland Tunnel and the 1945 CPC Report, the land on which the Holland Tunnel is located is legally under the exclusive jurisdiction of the Port Authority of New York and New Jersey ("the Port Authority") and, therefore, the City Zoning Regulations do not apply and are superseded by the Port Authority's own New York State statutory schemes. In furtherance of this argument, petitioner asserts that there is a distinction in the enabling legislation pertaining to the Holland Tunnel and the enabling legislation pertaining to the George Washington Bridge and the Hudson [*5]Tunnel,[FN3] which gave the Port Authority exclusive control over said roadways. Petitioner argues that the enabling legislation is different for the George Washington Bridge and the Lincoln Tunnel because said legislation specifically demarcated the approaches and or exits to those arterial highways, whereas the enabling legislation for the Holland Tunnel does not. Petitioner specifically states, in a footnote, that:

The CPC Master Plan was modified a number of times after 1945, when arterial highways were added. No entrance to the Holland Tunnel was ever added as an "approach" roadway. There was only one modification of the Master Plan to add an approach roadway near a [Port Authority] tunnel facility. On January 15, 1958 the CPC modified the Master Plan to add the principal route, "Lincoln Tunnel approaches, Manhattan" (later named "Lincoln Tunnel, Expressway") as an arterial highway connection to the Lincoln Tunnel. (CP-13659; January 15, 1958).

Petition, at ¶ 23 n.8. Petitioner argues that, since the enabling legislation never defines "approaches" to the Holland Tunnel, and because the Master Plan Map was never amended, no such approaches to the Holland Tunnel exist.

The BSA opposes the instant petition, asserting that its determination that the approaches to the Holland Tunnel are arterial highways was reasonable. The BSA argues that the sign was located on the side of a building located in an M1-6 zoning district that does not allow for the erection of advertising signs within 200 feet of and within view of an arterial highway, pursuant to ZR 42-55. Respondent argues that the BSA found that the sign is located within 200 feet of and within view of the Holland Tunnel approach roadway, which it specifically states is " an open cut approach ramp that connects the North Tube to the street grade at Broome Street.'" Resp. Memo. of Law, at 2-3, quoting (R. 9). Respondent further contends that the DOB mistakenly approved the sign in 1998 and that the sign remains unlawful under current regulations. The BSA asserts that the DOB provided petitioner with the requisite statutory pre-revocation notice and opportunity to challenge the revocation and had not received sufficient information from petitioner as to why the permit should not be revoked, and thus reasonably revoked the permit. The BSA contends that it rationally found that petitioner failed to establish that the DOB improperly revoked the permit in light of the BSA's finding that the Tunnel Approach is a part of the Holland Tunnel toll crossing, which is an arterial highway both shown on the 1945 Master Plan of Arterial Highways and Major Streets (Master Plan Map) and designated in ZR Appendix H as an arterial highway under toll crossings as the "Holland Tunnel and Approaches."

In reply to the BSA's opposition, petitioner argues that the transcriptions in the Record of the three public hearings held at the BSA (September 9, 2014 [R. 224-239]; January 30, 2015 [R. 610-691]; and May 19, 2015 [R. 1031-1086]) "are inaccurate in various places with respect to the person speaking, words transcribed, punctuation or quoted language." Pet'r. Memo. of Law, at ¶ 21. Petitioner again asserts that the Tunnel Approach is not located on the City Map. Further, [*6]petitioner contends that, according to the CPC, the arterial route must be shown on the map and there has been no addition of any arterial highway at the entrance to the Holland Tunnel since it was completed in 1927. Petitioner argues that the associated CPC Report confirms this, but there is no need to consult the CPC report at all because no entrance roadway to the Holland Tunnel is shown on the 1945 Map as an arterial highway.

Petitioner next distinguishes 450 West 31st Street, BSA 156-13-A (2014), since that case only dealt with the dots in the Master Plan map depicting the arterial highway added in 1958 to the Lincoln Tunnel, and whether the roadway at the end of such dots was part of the added arterial highway. In that case, the related CPC Report was consulted to make a determination. However, petitioner argues, there is no such issue in this case because there are no dots representing an arterial highway on the Master Plan Map that end anywhere close to the Holland Tunnel entrance. The dots end at Miller Highway, now West Street, where it meets Canal Street, which is over 1,000 feet from the entrance to the Holland Tunnel. Additionally, petitioner argues that the BSA's assertion that the Master Plan Map is macroscopic does not change the fact that no approaches are demarcated on the Map as part of an arterial highway. Petitioner then reiterates its argument that in order for a roadway to be an arterial highway, it must comply with the definition of an arterial highway in ZR 42-55. Petitioner asserts that the text of ZR 42-55 is clear and unambiguous and must be strictly construed. Finally, petitioner's position is that the issue presented is one of law and that the expertise of the BSA is irrelevant.

LEGAL CONCLUSIONS:

The BSA's Resolution will be upheld unless the petitioner shows that the "determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed." CPLR 7803(3). "The courts cannot interfere unless there is no rational basis for the exercise of discretion or the action complained of is arbitrary and capricious.'" Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, 231 (1974). Arbitrary action is defined as action "without sound basis in reason and is generally taken without regard to the facts." Id. Further, where a hearing has been held, "the determination must be supported by substantial evidence (CPLR 7803, subd. 4); and where a determination is made and the person acting has not acted in excess of his jurisdiction, in violation of lawful procedure, arbitrarily, or in abuse of his discretionary power, including discretion as to the penalty imposed, the courts have no alternative but to confirm his determination. Id. "In reviewing such determinations, courts consider substantial evidence only to determine whether the record contains sufficient evidence to support the rationality of the Board's determination." Kettaneh v Bd. of Standards & Appeals of City of NY, 85 AD3d 620, 621 (1st Dept 2011), quoting Matter of Toys "R" Us v Silva, 89 NY2d 411, 418-419 (1996) (internal quotation marks omitted).

Master Plan

The BSA determined that the Holland Tunnel is located on the Master Plan Map. The BSA also found, consistent with its decision in 450 West 31st Street, BSA 156-13-A (2014), that the Master Plan Map "is macroscopic and schematic in nature." (R. 329). The BSA went on to [*7]find that the CPC Report relating to the designation of the Lincoln Tunnel as an arterial highway, by virtue of it being a toll crossing, merely clarified the designation in Appendix H. Id., at 329-330. Although the 450 West 31st Street Resolution refers to a CPC Report, the CPC Report itself merely discusses the suggested location of the Mid-Manhattan Crosstown Expressway and does not finalize the existence of any new "approaches." (R. 343-348) (1958 CPC Report). The BSA's consistent determination that the Master Plan Map is macroscopic in both 450 West 31st Street, supra, and the instant case shows that its recent determination that the approaches to the Holland Tunnel are located on the Master Plan Map was reasonable.

CPC Designation

Next, the BSA found that the 1945 CPC Report associated with the Master Plan included the Tunnel Approach, at issue here, as part of the Holland Tunnel toll crossing and thus as an arterial highway. The 1945 CPC Report lists the Holland Tunnel under the heading "Toll Crossings." (R. 303). According to the 1945 CPC Report, Toll Crossings have the following description: "The water crossings, provided as toll facilities by specially constituted Authorities, which together with their approaches are essential links in the arterial highway and major street system, are listed below." Id. (emphasis added). The 1945 CPC Report further states that "[t]his facility connects lower Manhattan with New Jersey and also will connect with the proposed Lower Manhattan Crosstown Expressway." (R. 303). More importantly, the 1945 CPC Report, in its concluding paragraph, states the following:

It should be emphasized that both the Post War Works Program and the Master Plan are flexible and susceptible to further development and changes; that all the principal routes on the Master Plan, as now proposed, are desirable and ought to be converted to expressways whenever traffic volume warrants and financial conditions permit. Similarly, other routes may be added after further study. Furthermore, routes now shown diagrammatically will be more specifically defined before they are legally mapped. Other routes which have been considered in the past and any additional desirable routes will continue to be studied and from time to time may be expected to result in modification of the adopted Master Plan.

(R. 306) (emphasis added). Accordingly, the BSA reasonably found that the Tunnel Approach to the Holland Tunnel is contained in the CPC designation and was intended to be part of the Holland Tunnel arterial highway on the Master Plan Map.

Zoning Resolution Appendix H

The BSA then compared the 1945 CPC Report to ZR Appendix H in order to see whether the Holland Tunnel and its approaches were consistently designated as an arterial highway. As stated supra, Appendix H contains a list of arterial highways designated by the CPC as subject to the advertising sign restriction. (R. 267). Similarly, Appendix H contains the heading "TOLL CROSSINGS" and beneath it lists "Holland Tunnel and Approaches." (R. 270). To the extent that petitioner attempts to differentiate the Holland Tunnel from the Lincoln Tunnel, as it is marked on the Master Plan and designated by the CPC as an arterial highway, Appendix H similarly lists "Lincoln Tunnel and Approaches" under the same heading. Id. On the same note, [*8]the 1945 CPC Report also lists the Lincoln Tunnel under "Toll Crossings" with a brief description of the purpose of said tunnel. (R. 303). The fact that the Holland Tunnel has toll booths that today are not used to the same extent as when the Holland Tunnel was initially built has no bearing on whether or not it is in fact a toll crossing under the definition of an arterial highway. Since the CPC has clearly designated approaches to the Holland Tunnel to be part of an arterial highway and it is shown on the Master Plan, the BSA reasonably found that the Tunnel Approach at issue is an arterial highway.

Definition of Approach

As to whether or not the definition of the term "approach" in 1 RCNY 49-01 is applicable to what has been deemed the Tunnel Approach, the BSA reasonably determined that the Tunnel Approach is an approach within even the common definition of the word. The Oxford American Dictionary defines "approach" as "an approximation to something" or as "a road, sea passage, or other way leading to a place." The New Oxford American Dictionary, at 76 (2001). Additionally, it is important to note that the BSA did not specifically rely on the definition of "approach" in 1 RCNY 49-01. The BSA instead stated that:

in addition to the fact that the Tunnel Approach is an approach by any reasonable interpretation, the Board finds that the Appellant failed to refute DOB's arguments that (1) the Rule 49 definition of an "approach" is consistent with the Department's long-standing, pre-Rule 49, interpretation of the term and was such at the time the Permit was issued or that (2) the Tunnel Approach does indeed qualify as an approach under such definition.

(R. 9).

Moreover, the legislature provided a specific definition for the term "approach" that "defines it as the roadway connecting the local network to a bridge or tunnel....'" In re Take Two Outdoor Media LLC v Bd. of Standards & Appeals of the City of NY, 2013 WL 5785920, 2013 NY Slip Op 32590(U) (Sup Ct, NY County, No. 100293/2013, Oct. 22, 2013) (Huff, J.) (alteration in original), aff'd 128 AD3d 563 (1st Dept 2015). The Tunnel Approach connects the local network to the Holland Tunnel. If the legislature had intended to exclude approaches to the Holland Tunnel, it would have simply stated so. Id. However, since approaches to the Holland Tunnel are included in the related legislation, it is reasonable to presume that the legislature intended the approaches to be a part of the arterial highway known as the Holland Tunnel. See id. In affirming Judge Huff's opinion, the Appellate Division, First Department stated that:

Respondent's denials, pursuant to New York City Zoning Resolution § 42-55, of petitioner's applications for registration of advertising signs on the roof and wall of buildings in proximity to the exit roadway of the Holland Tunnel were not contrary to law, arbitrary and capricious, or an abuse of discretion (see CPLR 7803[3]). Respondent properly determined that the exit roadway is an "approach" within the meaning of 1 RCNY 49-01 and therefore is an "arterial highway" within the meaning of section 42-55 of the Zoning Resolution. Respondent properly relied on the definition of "approach" set forth in 1 RCNY 49€"01 (Rule 49), which is consistent with the plain language of the Zoning Resolution. Further, respondent properly rejected petitioner's contention that the exit roadway is not an approach within the plain meaning of Rule 49.Although the DOB had previously approved the signs, its subsequent determinations rejecting the signs adequately explained its reasons for "alter[ing] its prior stated course" (Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516, 520, 498 N.Y.S.2d 111, 488 N.E.2d 1223 [1985]).

In re Take Two Outdoor Media LLC, 128 AD3d at 563.

Additionally, in 111 Varick Street, BSA 90-12-A (2013), the BSA determined, upon similar facts, that the Holland Tunnel approaches were a designated arterial highway. (R. 424). The BSA stated that "the subject site is located at the northwest corner of Varick Street and Broome Street, within an M1-6 zoning district" with an advertising sign "located on the south wall of the Building" at said site. Id. "The Sign faces Broome Street and is located approximately 57'-0" from the northern boundary of the Holland Tunnel approaches, a designated arterial highway pursuant to Zoning Resolution Appendix H." Id. The BSA's resolution in that case was appealed, but in both resolutions, the BSA stated that the approaches were designated as an arterial highway (R. 424, 430) and the respective subject appeals were each denied. (R. 429, 437). Accordingly, the BSA reasonably rejected petitioner's argument that the CPC was limited to a specific definition of "approach" and that no such approaches to the Holland Tunnel existed.

Within 200 Feet of and Within View of an Arterial Highway

To the extent that petitioner contests whether the advertising sign was within 200 feet of and "within view" of an arterial highway, this Court finds that the BSA's determination that the sign was within 200 feet of and within view of an arterial highway was reasonable. This Court has already found the BSA's Resolution to be reasonable in holding that the Tunnel Approach is an "approach" to the Holland Tunnel and is accordingly an arterial highway. The BSA Resolution reflects that petitioner has conceded that the sign is located approximately 140 feet from the Tunnel Approach and the DOB submitted a Pictometry analysis supporting this contention to the BSA. (R. 7, 443). The BSA acknowledges multiple types and points of measurements that the DOB used to determine the distance of the sign from the Tunnel Approach. Accordingly, the BSA's determination that the permit was unlawful when issued was reasonable because the sign was within 200 feet from an arterial highway.

Petitioner's argument that the sign is not visible to a traveler in the North Tube was reasonably rejected by the BSA. To determine whether a sign is "within view" for the purpose of ZR 42-55, the BSA uses its well-established "360 Degrees Standard." Id., at 8. Recently, the Appellate Division, First Department endorsed the BSA's use of the "360 Degrees Standard" and stated the following:

we find that BSA's interpretation of New York City Zoning Resolution § 42-55 to mean that an advertising sign is "within view" of an arterial highway if it is discernible, using a 360 degree perspective, by a person located on the [road]way, is not affected by an error of law or arbitrary and capricious (see CPLR 7803[3]). Further, substantial evidence supports BSA's determination that, upon application of the "360 degree standard," the sign at issue was within view of the arterial highway (see CPLR 7803[4]; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180-182 [1978]).

[*9]In re OTR Media Group, Inc. v Bd. of Standards & Appeals of the City of NY, €" AD3d &mdash, 2015 WL 6510756, 2015 NY Slip Op 07928 (1st Dept, No. 1598 9, Oct. 29, 2015). Because the BSA employed "objective, clear-cut standards" to determine that a portion of the sign was visible since it was within view from the vantage point in dispute (R. 9), its finding was reasonable.

The Port Authority's Jurisdiction

Although not expressly opposed in the BSA's memorandum of law, the DOB was legally empowered to enforce the New York City Zoning Resolutions and revoke petitioner's permit for the sign. New York City Charter ("City Charter") section 643, entitled "Department; functions.," provides, in relevant part, that:

The department [of buildings] shall enforce, with respect to buildings and structures, such provisions of the building code, zoning resolution, multiple dwelling law, labor law and other laws, rules and regulations as may govern the construction, alteration, maintenance, use, occupancy, safety, sanitary conditions, mechanical equipment and inspection of buildings or structures in the city, and shall perform the functions of the city of New York relating to...(4)the location, construction, alteration and removal of signs, illuminated or non-illuminated, attached to the exterior of any building or structure.

Id. Additionally, New York City Administrative Code ("AC" or "Administrative Code") section 28-204.2.10, entitled "Revocation of approval.," provides that: The commissioner may, on notice to the applicant, revoke the approval of construction documents for failure to comply with the provisions of this code or other applicable laws or rules; or whenever there has been any false statement or any misrepresentation as to a material fact in the submittal documents upon the basis of which such approval was issued; or whenever an approval has been issued in error and conditions are such that approval should not have been issued. Such notice shall inform the applicant of the reasons for the proposed revocation and that the applicant has the right to present to the commissioner or his or her representative within 10 business days of personal service or 15 calendar days of the posting of service by mail, information as to why the approval should not be revoked.

Id. The effect of such a revocation is, pursuant to AC 28-104.2.10.1, "the automatic revocation of all associated work permits that may have been issued." Id.

The DOB may also, upon written notice, revoke a permit for failure to comply with applicable New York City laws or rules, including the Zoning Resolutions. Section 28-105.10 of the Administrative Code, entitled "Suspension or revocation of permit.," states that "[t]he commissioner is authorized to suspend or revoke a permit issued under the provisions of this code." Id. When a permit is being revoked pursuant to article 105 of title 28 of the Administrative Code, written notice of the proposed revocation must be given, pursuant to AC 28-105.10.1, which states that:

The commissioner may, on written notice to the permit holder, revoke any permit for [*10]failure to comply with the provisions of this code or other applicable laws or rules; or whenever there has been any false statement or any misrepresentation as to a material fact in the application or submittal documents upon the basis of which such approval was issued; or whenever a permit has been issued in error and conditions are such that the permit should not have been issued. Such notice shall inform the permit holder of the reasons for the proposed revocation and that the applicant has the right to present to the commissioner or his or her representative within 10 business days of delivery of the notice by hand or 15 calendar days of the posting of notice by mail, information as to why the permit should not be revoked.

Id.

Pursuant to City Charter section 659, the BSA, as appointed by the mayor, is an independent board that exists to review administrative trials and hearings. Section 659 states, in relevant part, that:

a. There shall be an independent board of standards and appeals located within the office of administrative trials and hearings. The board of standards and appeals shall consist of five members to be termed commissioners to be appointed by the mayor each for a term of six years.b. One of the members shall be a planner with professional qualifications and at least ten years' experience as a planner. One of the members shall be a registered architect and shall have had at least ten years' experience as an architect. One of the members shall be a licensed professional engineer and shall have had at least ten years' experience as an engineer.

Id., at 659(a), (b). City Charter section 666, entitled "Jurisdiction.," states, in relevant part, that: The board shall have power:...6. To hear and decide appeals from and review,(a) except as otherwise provided by law, any order, requirement, decision or determination of the commissioner of buildings or of a deputy commissioner of buildings or any borough superintendent of buildings acting under a written delegation of power from the commissioner of buildings filed in accordance with the provisions of section six hundred forty-two or section six hundred forty-five of this charter.

Id., at 666(6)(a). More specifically, Administrative Code section 28-502.4.3 permits the BSA to specifically review a DOB determination relating to whether a sign is located in proximity to an arterial highway. Pursuant to the reporting requirement for outdoor advertising companies, AC 28-502.4 requires that "[a]n outdoor advertising company shall provide the department [of buildings] with a list with the location of signs, sign structures and sign locations" under its control. Id. AC 28-502.4.3 states in full: Such list shall be accompanied by (i) a certification by an architect or engineer, co-signed by a responsible officer of the outdoor advertising company, that all signs reported on such list are in compliance with the zoning resolution; (ii) copies of proof that the sign complies with the zoning resolution and a certification by the sign's owner that to the best [*11]of the certifier's knowledge and belief the information provided is accurate, or (iii) a written opinion by the department [of buildings], stating that the sign to which the opinion refers complies with the zoning resolution. Notwithstanding any inconsistent provision of this code, where, in accordance with the department's rules, the department renders an opinion, determination or decision relating to whether a sign is non-conforming or whether it is located in proximity to an arterial highway as defined by the zoning resolution, such decision, determination or opinion will be appealable to the board of standards and appeals in accordance with applicable law. If a timely appeal to such board is taken, the department shall not issue a notice of violation with respect to such sign pending a determination of such appeal by such board.

Id. (emphasis added). Title 2 of the Rules of the City of New York section 1 et seq. provides the procedures used by the BSA in rendering determinations and filing appeal applications.

Since the DOB the had the proper authority to review and revoke the permit for the sign and the BSA had the proper jurisdiction and authority to review the DOB's determination, this defeats petitioner's argument that the Port Authority has jurisdiction over the land on which the Holland Tunnel and its approaches are located. The sign at issue was located on New York City property and accordingly, New York City statutes apply in order to evaluate the legality of the sign. Any control the Port Authority would have even conceivably had over the land where the Holland Tunnel and its approaches are located is that the Port Authority set up the Holland Tunnel and its approaches as an arterial highway. Only if the sign had been placed on the Port Authority's property, would the Port Authority's statutory scheme apply. See CBS Outdoor, Inc. v City of New York, 50 Misc 3d 283, 295-297 (Sup Ct, NY County 2015) (Stallman, J.). In light of the above, this Court rejects petitioner's argument that separate Port Authority statutes apply in this instance.

Enabling Statutes

In order to understand petitioner's argument with respect to the enabling statutes, it is necessary to discuss some of New York's history. Robert Moses, a city planner and "master builder" of the mid-20th century in the New York metropolitan area, created the public authority known as the Port of New York Authority, today known as the Port Authority of New York and New Jersey. Robert Caro, The Power Broker: Robert Moses and the Fall of New York, at 614-616 (1975). The Port Authority, which was "created by an interstate compact between New York and New Jersey, would not be created until 1921, would not float its first bond issue until 1926, and would not become financially successful until 1931, when . . . it would . . . take over the highly successful Holland Tunnel, . . . constructed by an independent commission." Id., at 616.

Initially, an act [FN4] vested "the control and operation of the Holland Tunnel in the port of [*12]New York authority, authorizing the port authority to construct an additional interstate vehicular tunnel, and regulating the construction and operation of bridges and tunnels by the port authority." L 1931, ch 47, as amended. This policy was enacted to encompass "the portion of the Hudson river within the said port of New York district north of the New Jersey state line" in order to create "a general movement of traffic which follows the most accessible and practicable routes" so that "the users of each bridge or tunnel over or under the said waters benefit by the existence of every other bridge or tunnel since all such bridges and tunnels as a group facilitate the movement of such traffic and relieve congestion at each of the several bridges and tunnels." L 1931, ch 171, § 1, as amended. The law continues:

Accordingly [New York and New Jersey], in the interest of the users of such bridges and tunnels and the general public, hereby agree that the construction, maintenance, operation and control of all such bridges and tunnels, heretofore or hereafter authorized by the two said states, shall be unified under the port of New York authority (hereinafter called the port authority), to the end that the tolls and other revenues therefrom shall be applied so far as practicable to the costs of the construction, maintenance and operation of said bridges and tunnels as a group and economics in operation effected, it being the policy of the two said states that such bridges and tunnels shall as a group be in all respects self-sustaining.

Id. As a result, in order to alleviate traffic for automobiles, two connections under and over the water "had been built, by the Port of New York Authority, between the city and New Jersey: the Holland Tunnel, which opened in 1927, and the George Washington Bridge, which opened in 1931." Caro, supra, at 329 & n.

However, petitioner tries to raise a distinction between the enabling statute pertaining to the Holland Tunnel and those pertaining to the George Washington Bridge and the Hudson Tunnel on the grounds that the latter enabling statutes specifically designate the approaches to the said arterial highways. Section 2 of chapter 171 of the Unconsolidated Laws of New York, entitled "Control of Holland tunnel; construction of Midtown Hudson tunnel; studies and surveys," states in relevant part, that:

In furtherance of the aforesaid policy, and in partial effectuation of the comprehensive plan heretofore adopted by the two said states for the development of the said port of New York district, the control, operation, tolls and other revenues of the vehicular tunnel, known as the Holland tunnel, under the Hudson river between the city of Jersey City and the city of New York, shall be vested in the port authority as hereinafter provided; and the port authority is hereby authorized and empowered to construct, own, maintain and operate an interstate vehicular crossing under the Hudson river to consist of three tubes (hereinafter called the Midtown Hudson tunnel), together with such approaches thereto and connections with highways as the port authority may deem necessary or desirable.

L 1931, ch 171, § 2, as amended (emphasis added). It is important to note that the statute does not give the Port Authority the power to designate approaches to the Holland Tunnel, whereas the [*13]statute gives the Port Authority power to designate approaches to the Hudson Tunnel. This defeats petitioner's argument that the Port Authority has sole control to determine the location at all of the vehicular crossings over which it has jurisdiction. Additionally, title 21 of the New York Codes, Rules and Regulations, Section 1200.3(w), provides that a tunnel is "any tunnel within the jurisdiction of the Port Authority between the portals thereof, but shall not include the plazas, approaches and highway connections thereto" (id.), which further illustrates that the power of the Port Authority to designate approaches must be contained in the enabling legislation. The section then goes on to specifically list the designated approaches to the George Washington Bridge: Except as may be agreed upon between the port authority and the municipality in which they shall be located, the approaches to the George Washington bridge hereafter constructed on the New York side shall be located as follows: between Amsterdam avenue and Pinehurst avenue, the approaches shall be located between west One hundred seventy-eighth street and west One hundred seventy-ninth street; between Pinehurst avenue and Cabrini boulevard, the approaches shall be between west One hundred seventy-eighth street and west One hundred eightieth street; between Cabrini boulevard and Haven avenue, the approaches shall be between west One hundred seventy-seventh street and the line parallel to the northerly side of west One Hundred eightieth street and one hundred twenty-five feet north of the building line on the north side thereof; between Haven avenue and Service street north of the George Washington bridge, the approaches shall be between the bridge and an extension of the building line on the northerly side of west One hundred eightieth street. Except as so limited, the port authority may effectuate such approaches, connections, highway extensions or highway improvements as it shall deem necessary or desirable in relation to the George Washington bridge, located in or extending across the counties in which such bridge is located, and, in its discretion, may do so by agreement with any other public agency; such agreement may provide for the construction, ownership, maintenance or operation of such approaches, connections or highway extensions or highway improvements by such other public agency.

L 1931, ch 171, § 2, as amended. Section 3, entitled "Creation of entrances etc. to Midtown Hudson tunnel," also specifically lists the designated entrances, exits, and approaches to said tunnel, which: on the New York side, shall be between West Thirty-fifth street and West Forty-first street and in the vicinity of Ninth avenue and to the west thereof, in the borough of Manhattan, city of New York. The approaches to the said Midtown Hudson tunnel on the New Jersey side shall be so located and constructed as to permit tunnel traffic to pass over or under the tracks of the New York, Susquehanna and Western Railroad Company and the Northern Railroad Company of New Jersey, immediately west of the Palisades, without crossing the said tracks at grade, and as to permit connections with New Jersey state highway routes in the vicinity of the said tracks. The said Midtown Hudson tunnel shall have an appropriate entrance and exit in the township of Weehawken, county of Hudson, state of New Jersey.

L 1931, ch 171, § 3, as amended. Section 5, entitled "Payment to states; computation of [*14]interest," discusses the funding of the Holland Tunnel and its revenues. L 1931, ch 171, § 5, as amended. The section specifically discusses the revenue from the entrance and exit plazas, but does not discuss anything about the design of the Holland Tunnel or designate any approaches or exit roadways. Id. The section further states that the land shall only "vest in the port authority upon the making of the following payments by the port authority," (id.) which suggests that the Holland Tunnel was not yet under the Port Authority's control until such payments were made so, at that time, the Port Authority was unable to designate any approaches to the Holland Tunnel.

Furthermore, in order to further alleviate traffic congestion,[FN5] "[d]uring the 1930's, Robert Moses had announced a program€"of New York City bridge and arterial highway construction and park reconstruction€"which, taken as a whole . . . dwarfed any public work or coordinated system of public works built in any modern city, and, perhaps, in any ancient city as well." Caro, supra, at 896-897. Moses had planned to construct three expressways across the island of Manhattan. Id., at 769. These three expressways were "all elevated: an Upper Manhattan Expressway' at approximately 125th Street; a Mid-Manhattan Elevated Expressway' across either 30th or 36th Street; and a Lower Manhattan Expressway' that would run across Broome Street and connect the Holland Tunnel with the Williamsburg and Manhattan bridges." Id., see also id., at 896. The most "spectacular" of the three expressways would be the Mid-Manhattan expressway, which was expected to be built first. Id., at 769-770. However, "Moses and Borough President Rogers issued a joint announcement that studies had been under way for months on the Lower Manhattan Expressway, [and] that a route had been finalized." Id., at 770. The Lower Manhattan Expressway " had been incorporated in the federal and state highway systems as eligible for future state and federal highway funds,' [and] that preliminary plans€" directed by the Office of the President of the Borough of Manhattan'€" are already under way' by engineering firms.'" Id. The announcement continued: " final plans [for the Lower Manhattan Expressway] will follow as soon as all those whose approval is required have given it' and that it is intending that land shall be acquired and construction started in 1948, and that this crossing shall be completed in 1949.'" Id.

Finally, the Port Authority realized that it shared an identity of interest with Moses regarding the use of toll facilities: " the success of toll facilities . . . is largely dependent upon the adequacy and convenience of the approaches and connecting highways.'" Id., at 924 (alteration in original). "In February 1954, the Port Authority [worked] on a Joint Study of Arterial Facilities,' and on January 16, 1955, the results€"sixty-two pages long, hard-bound, four-color, glossy paper, summed up by Moses, who wrote its introduction . . . were released to the press." Id., at 924-925. The "Joint Study of Arterial Facilities" stated that the Port Authority was to begin immediately on three bridge products and "[i]t laid out a system of new arterial highways extending to and from [said] bridges." Id., at 925. It also recommended that "the long-discussed Mid-Manhattan Elevated Expressway' linking the Lincoln and Queens-Midtown tunnels and the long-discussed Lower Manhattan Expressway' linking the Holland Tunnel with the Williamsburg and Manhattan bridges" should be built. Id. The "Joint Study" further recommended "for future construction' a vast new system of expressways across every borough [*15]of the city and stretching out into the suburbs." Id. "The Joint Program' was nothing more nor less than a business arrangement, with the businessman who could bring to the new partnership the most of the crucial material€"power€"getting the most out of it." Id.

While one of "Robert Moses' visionary plans throughout New York City during his time as one of the prime urban planners in the mid 20th century [was] a plan for a Lower Manhattan Expressway, . . . [it] was ultimately nixed in 1962 due to widespread disapproval from the public (and from Jane Jacobs, of course)." Phillipe Martin Chatelain, The NYC That Never Was: Robert Moses' Lower Manhattan Expressway (LOMEX), http://untappedcities.com (Sept. 11, 2013). Although Moses had announced that " the postwar highway era is here,'" "the troops did not respond to this ringing trumpet call" as they had before. Caro, supra, at 897. "Entering the 1960s, support for [the Lower Manhattan Expressway] was greatly dwindling." Chatelain, supra. "The project would raze fourteen blocks of what is currently SoHo and Little Italy and cost the city an estimated $72 million in total, including the displacement of just under 2,000 families and over 800 businesses." Id. Urban planners had begun to see that "building more traffic facilities would not in itself cure traffic congestion." Id. Building additional highways, such as the Lower Manhattan Expressway, would lead to more traffic congestion of the new roads. See id. As a result, the Lower Manhattan Expressway was not built and, in fact, New York's Coordinator of transit facilities was even destroying some of the old facilities. See id. Ultimately what doomed [the Lower Manhattan Expressway] was the fact that Moses' estimates on the roadways [and] benefits to congestion in the area were considered obsolete by the time [it] would have actually been finalized." Chatelian, supra. The project "used outdated traffic counts that were meaningless by 1968 when the project received approval by the Federal Bureau of Public Roads" and was shelved "indefinitely in 1971" due to increased "carbon monoxide levels in the vicinity of the roadway." Id.

In light of the idea that, throughout the 1960s, the Lower Manhattan Expressway was supposed to be built connecting the Holland Tunnel to other areas of New York, it would have been impossible to designate approaches to the Holland Tunnel in the enabling legislation. No approaches had been designated because any such designation would have been based upon the future building of the Lower Manhattan Expressway, which was never built. The 1963 version of the Master Plan Map not only shows the Lower Manhattan Expressway demarcated on the Map, but also shows no additional amendments of the Map relating to the Holland Tunnel or the Lower Manhattan Expressway (R. 1099, 1100), and no newer versions of the Map, CPC Reports, or further studies were included in the Record. Accordingly, Section 5 of chapter 171 of the Unconsolidated Laws of New York (L 1931, ch 171, § 5, as amended), which addressed only the funding of the Holland Tunnel, could not designate any such approaches to the Holland Tunnel for two reasons: that the approaches depended upon the building of the Lower Manhattan Expressway, and that the termination of the Lower Manhattan Expressway project occurred sometime after 1963. This defeats petitioner's argument that no approach roadways to the Holland Tunnel were added to the Master Plan Map when it was amended to add the Lincoln Tunnel approaches in 1958.

Section 6 of chapter 153 of the Unconsolidated Laws of New York further supports the reasonableness of the BSA's Resolution, stating that:

The determination of the exact location, system and character of each of the said tunnels, [*16]bridges, belt lines, approaches, classification yards, warehouses, terminals or other improvements shall be made by the port authority after public hearings and further study, but in general the location thereof shall be as indicated upon said map, and as herein described.

L 1922, ch 153, § 6, as amended. This section ultimately gave the Port Authority future power to improve the roadways over which it had control, including the designation of approaches. Thus, even though the Port Authority had the power to determine approaches to the Holland Tunnel on the Master Plan Map, it would not be able to designate any such approaches in 1958 because, at that time, it was anticipated that the Lower Manhattan Expressway would be constructed, as discussed above.

As stated above, "[b]eyond question, judicial deference to administrative authority and expertise is an important principle." Pantelidis v New York City Bd. of Standards & Appeals, 43 AD3d 314, 316 (1st Dept 2007). Accordingly, this Court reads the Resolution as originally decided by the BSA. Even if this Court were to find any ambiguity in the applicability of the aforementioned sections of the Zoning Regulations in this situation, which it does not, it would defer to the expertise of the city agency, in this case the BSA, which made that determination. Further, "the present [BSA] record is sufficiently developed to permit resolution [by that agency] of the question of petitioner's entitlement" to a zoning permit for an advertising sign under ZR 42-55. Id., at 318. Finally, petitioner's contention that the transcriptions in the Record of the three public hearings held at the BSA (September 9, 2014 [R. 224-239]; January 30, 2015 [R. 610-691]; and May 19, 2015 [R. 1031-1086]) are inaccurate in various places is not properly before this Court since it was raised for the first time in his reply papers. Erdey v City of New York, 129 AD3d 546, 546-547 (1st Dept 2015).

Therefore, in accordance with the foregoing, it is hereby:

ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed; and it is further,

ORDERED that this constitutes the decision and order of this Court.

Dated: February 4, 2016

ENTER:

_________________________

KATHRYN E. FREED, J.S.C. Footnotes

Footnote 1:Unless otherwise noted, all references are to the exhibits annexed to the verified petition.

Footnote 2:The Record of the proceedings before the BSA, as referenced in respondent's answer, has been provided in separately bound volumes, consisting of over 1000 pages. Citations to the Record are noted by "R." followed by the page number.

Footnote 3:The Port Authority of New York and New Jersey website explains that the Midtown Hudson Tunnel is today known as the Lincoln Tunnel and is referred to by both names throughout this decision. The Port Authority of New York & New Jersey, Bridges & Tunnels, http://www.panynj.gov/bridges-tunnels/lincoln-tunnel-history.html (accessed Feb. 3, 2016).

Footnote 4:See L 1922, ch 43, as amended ("AN ACT by which the state of New York agrees with the state of New Jersey upon the comprehensive plan for the development of the port of New York, pursuant to the compact authorized by the two states and signed April thirtieth, nineteen hundred and twenty-one, and consented to and approved by congress and the president of the United States, August twenty-three nineteen hundred and twenty-one, and authorizing and empowering the port of New York authority to effectuate the same, and making an appropriation therefor.).

Footnote 5:"Downtown, the typical line of cars waiting to enter the Holland Tunnel plaza was, at 5 P.M., eight blocks long." Caro, supra, at 912.