Duchmann v. Town of Hamburg
| Citation | 90 A.D.3d 1642,2011 N.Y. Slip Op. 09709,935 N.Y.S.2d 803 |
| Parties | In the Matter Peter S. DUCHMANN and Duke Distributing Company, Inc., doing business as Advanced Auto Electronics, Petitioners–Appellants, v. TOWN OF HAMBURG, Town of Hamburg Town Board, Town of Hamburg Board of Zoning Appeals, Kurt Allen, Enforcement Officer Buildings Inspections and Code Enforcement, Respondents,Lamar Advertising of Penn, LLC, TLC Properties, Inc., Lamar Company, LLC, and Lamar Texas Limited Partnership, Respondents–Respondents. |
| Decision Date | 30 December 2011 |
| Court | New York Supreme Court Appellate Division |
OPINION TEXT STARTS HERE
Harter Secrest & Emery LLP, Buffalo (Marc A. Romanowski of Counsel), for Petitioners–Appellants.
Jaeckle Fleischmann & Mugel, LLP, Buffalo (Howard S. Rosenhoch of Counsel), for Respondents–Respondents.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND SCONIERS, JJ.
Petitioners appeal from a judgment in this CPLR article 78 proceeding that, inter alia, dismissed the petition against respondents Lamar Advertising of Penn, LLC, TLC Properties, Inc., Lamar Company, LLC and Lamar Texas Limited Partnership (collectively, Lamar respondents). In 2004, the Lamar respondents entered into a lease agreement with petitioners that allowed the Lamar respondents to place a billboard on petitioners' property. On the same day in 2004, respondent Town of Hamburg (Town) issued the Lamar respondents a permit for the construction of the billboard (hereafter, 2004 permit). After an eminent domain taking, the Lamar respondents and petitioners entered into a new lease agreement that allowed for the relocation of the billboard to other property owned by petitioners, and the Town issued a building permit for that relocation in 2007 (hereafter, 2007 permit).
Petitioners thereafter granted the Lamar respondents a perpetual easement that included “the right to service, maintain, improve or replace any outdoor advertising structure on the property [in question].” The Lamar respondents subsequently applied to the Town for a permit to convert part of the billboard to a digital display screen. Petitioners objected to the issuance of the permit because, as the owners of the property, they did not consent to the modification. Although that permit was revoked for other reasons, the Lamar respondents again applied for a permit to convert the billboard to an electronic format, and petitioners objected on the same ground. After the Town issued the permit (hereafter, 2010 permit), petitioners appealed to respondent Town of Hamburg Board of Zoning Appeals (BZA), which denied the appeal. Petitioners commenced this CPLR article 78 proceeding seeking, inter alia, to annul the BZA's determination. Supreme Court granted the cross motion of the Lamar respondents for summary judgment dismissing the petition against them. We affirm.
Petitioners contend that the 2010 permit is unlawful because they objected to the issuance thereof and the Lamar respondents did not obtain their written consent. Our review of an administrative determination “is limited to whether the administrative action is arbitrary and capricious or lacks a rational basis” ( Matter of Concetta T. Cerame Irrevocable Family Trust v. Town of Perinton Zoning Bd. of Appeals, 6 A.D.3d 1091, 1092, 776 N.Y.S.2d 660). The BZA is “ ‘vested with great discretion’ ..., [and its] determinations are entitled to ‘great deference’ ” ( id.).
Pursuant to the Code of the Town of Hamburg (Town Code), “[p]rior to the issuance of any sign permit for the erection, alteration, construction, relocation or enlargement of a sign, application for such permit shall be made” (Town Code § 280–250[A] ), and the application must contain “[t]he written consent of the owner[s] of the ... property” (§ 280–250[A][2] ). We conclude that it was not arbitrary and capricious for the BZA to conclude that the language of the easement provided the necessary written consent. Whether the change in format for the billboard is viewed as an improvement or a replacement, further consent from petitioners was not...
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