Astoria Landing, Inc. v. N.Y.C. Envtl. Control Bd.

• Decision Date: 29 March 2017
• Docket Number: 2015-11432, Index No. 21837/12.
• Citation: 50 N.Y.S.3d 448,148 A.D.3d 1141
• Parties: In the Matter of ASTORIA LANDING, INC., appellant, v. NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, respondent.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 1141

50 N.Y.S.3d 448

In the Matter of ASTORIA LANDING, INC., appellant,

v.NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, respondent.

2015-11432, Index No. 21837/12.

Supreme Court, Appellate Division, Second Department, New York.

March 29, 2017.

Leavitt & Kerson, Forest Hills, NY (Paul E. Kerson of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, NY (Richard Dearing, Susan P. Greenberg, and John Moore of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

In a proceeding pursuant to CPLR article 78 to review a determination of the Environmental Control Board of the City of New York dated June 28, 2012, which affirmed a determination of an administrative law judge dated February 6, 2012, made after a hearing, finding that the petitioner violated Administrative Code of the City of New York § 28–502.2 and, in effect, that the petitioner violated New York City Zoning Resolution § 22–32, and imposed a penalty in the total sum of $20,000, the petitioner appeals from a judgment of the Supreme Court, Queens County (Agate, J.), entered December 29, 2014, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

In 2011, the Department of Buildings of the City of New York (hereinafter the DOB) issued multiple notices of violation to the petitioner in connection with an advertising sign (hereinafter the sign) painted on the wall of the petitioner's four-story apartment building in Astoria, Queens. The building, which the petitioner purchased in 1998, is located in an area zoned as a residential district and has had the sign on its south wall since 1941, when the DOB's predecessor issued a permit for it.

Pursuant to the enactment of certain New York City zoning resolutions, by 1961, advertising signs such as the one at issue were prohibited in residential districts, including the area where the petitioner's building is located. Thus, upon the enactment of such zoning resolutions, the sign at issue had become a nonconforming advertising sign governed by New York City Zoning Resolution § 52–731, which provides that nonconforming advertising signs in residential districts "may be continued for ten years after December 15, 1961, or such later date that such sign becomes non-conforming, providing that after the expiration of that period such non-conforming advertising sign shall terminate."

Notwithstanding New York City Zoning Resolution § 52–731, in February 1981, the DOB approved the renewal of a permit for the sign. In 1998, the petitioner purchased the building and continued to lease the space on the building for the sign.

In August 2011, the DOB issued five notices of violation to the petitioner in connection with the sign. Thereafter, in a determination dated February 6, 2012, made after a hearing on the violations, an administrative law judge (hereinafter the ALJ) sustained two of the five notices of violation. The ALJ found that the petitioner violated section 28–502.2 of the Administrative Code of the City of New York by failing to register as an outdoor advertising company while engaging in the outdoor advertising business, and, in effect, that the petitioner violated section 22–32 of the New York City Zoning Resolution for having an impermissible outdoor advertising sign in a residential district. The ALJ imposed a penalty in the sum of $10,000 for each violation. Thereafter, the petitioner sought administrative review of the ALJ's determination by the Environmental Control Board of the City of New York (hereinafter the ECB). In a determination dated June 28, 2012, the ECB affirmed the ALJ's determination. The petitioner then commenced this CPLR article 78 proceeding to annul the ECB's determination. In a judgment entered December 29, 2014, the Supreme Court denied the petition and dismissed the proceeding. We affirm.

The applicable standard of review is whether the ECB's determination " ‘was made in violation of lawful procedure, was affected by an error of law, was arbitrary and capricious, or was an abuse of discretion’ " (Matter of Vataksi v. Environmental Control Bd., 107 A.D.3d 905, 906, 967 N.Y.S.2d 415, quoting Matter of Morrow v. County of Nassau, 105 A.D.3d 961, 961, 962 N.Y.S.2d 917 ; see Matter of Ward v. City of Long Beach, 20 N.Y.3d 1042, 1043, 962 N.Y.S.2d 587, 985 N.E.2d 898 ; Matter of Halperin v. City of New Rochelle, 24 A.D.3d 768, 770, 809 N.Y.S.2d 98 ). "Under this standard, courts examine whether the action taken by the agency has a rational basis and will overturn that action only where it is taken without sound basis in reason or regard to the facts, or where it is arbitrary and capricious" (Matter of Morrow v. County of Nassau, 105 A.D.3d at 961, 962 N.Y.S.2d 917 [citation and internal quotation marks omitted] ).

"Moreover, ‘courts must defer to an administrative agency's rational interpretation of its own regulations in its area of expertise’ " (id., quoting Matter of Peckham v. Calogero, 12 N.Y.3d 424, 431, 883 N.Y.S.2d 751, 911 N.E.2d 813 ).

Here, the Supreme Court...