121 Varick St. Corp. v. Bd. of Standards & Appeals of N.Y., No. 101707/15.

CourtUnited States State Supreme Court (New York)
Writing for the CourtKATHRYN E. FREED, J.
Citation31 N.Y.S.3d 922 (Table)
PartiesIn 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 v. BOARD OF STANDARDS AND APPEALS OF The CITY OF NEW YORK, Respondent.
Docket NumberNo. 101707/15.
Decision Date04 February 2016

31 N.Y.S.3d 922 (Table)

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
v.
BOARD OF STANDARDS AND APPEALS OF The CITY OF NEW YORK, Respondent.

No. 101707/15.

Supreme Court, New York County, New York.

Feb. 4, 2016.


Mark R. Kook, Esq, New York, NY, for Petitioner.

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, New York, NY, for Respondent.

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 aning 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 1.1 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 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 p. 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),2 “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 aning 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 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,...

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