Marathon Outdoor, LLC v. Vesconti, 00CIV.3549(RMB).

Decision Date28 July 2000
Docket NumberNo. 00CIV.3549(RMB).,00CIV.3549(RMB).
PartiesMARATHON OUTDOOR, LLC, Plaintiff, v. Richard C. VESCONTI, Acting Commissioner, Department of Buildings of the City of New York, Rick C. Chandler, Bronx Borough Commissioner, and the City of New York, Defendants.
CourtU.S. District Court — Southern District of New York

Joseph Frost, New York City, for Plaintiff.

Jerald Horowitz, Corporation Counsel of City of New York, New York City, for Defendants.

ORDER

BERMAN, District Judge.

Plaintiff Marathon Outdoor, LLC ("Plaintiff" or "Marathon Outdoor") commenced this action on or about May 10, 2000 against Richard C. Visconti, Acting Commissioner, Department of Buildings of the City of New York (sued herein as "Richard C. Vesconti"), Rick C. Chandler, Bronx Borough Commissioner, and the City of New York (collectively, "Defendants"), seeking declaratory and injunctive relief and damages in relation to the City's enforcement of § 42-53 and § 43-43 of the New York City Zoning Resolution ("Zoning Ordinance" or "Zoning Resolution") which regulate the construction of outdoor signs. Plaintiff challenges a May 2, 2000 determination of the New York City Department of Buildings ("DOB") to rescind certain permits previously granted to Plaintiff for the construction of a billboard/sign structure at 1542 Boone Avenue in the Bronx. DOB allegedly rescinded the permits because it determined (1) that the structure was being used for off-site advertising, in violation of § 42-53, and (2) that the structure did not comply with the height and setback requirements of § 43-43.1 Plaintiff claims that if it is required to remove the sign(s) it has erected, its First Amendment rights to free expression will have been impermissibly restricted. (Complaint ¶ 3). Plaintiff challenges § 42-53 and § 43-43 of the Zoning Ordinance on (U.S.Constitutional) First Amendment and Fourteenth Amendment grounds, and also claims that these provisions, as applied to Plaintiff, result in a denial of equal protection in violation of the Fourteenth Amendment and a taking, in violation of the Fifth Amendment.

On June 16, 2000, Defendants submitted their opposition papers to Plaintiff's motion for a preliminary injunction. Oral argument was held on July 5, 2000. For the reasons set forth below, Plaintiff's motion for a preliminary injunction is denied.

I. Background

Plaintiff Marathon Outdoor is a New York corporation engaged in the business of leasing property and erecting "pole signs" (billboards) for advertising purposes. In June 1999, DOB approved applications and issued permits to Plaintiff for the construction of a V-shaped bill-board structure along the Sheridan Expressway in the Bronx.2 Plaintiff submitted separate applications for each of the two signs it planned to erect on opposite sides of the billboard, and a third application for the ground structure on which the signs would be erected and displayed. Plaintiff's applications [numbers 200447169 and 200447187] requested permission to install two signs, one on each side of a single structure at the premises. The applications stated that the signs would be located "within 200 feet of an arterial highway;" that they would be "accessory business signs" which would read, "Imperial Iron Works Corp." and that the cost of completion for each sign would be $3,600. (Chandler Aff. Exs. A, B). DOB approved application 200447187 on June 2, 1999 and application 200447169 on June 4, 1999. Plaintiff's third application [number 200447178] covered the ground structure for the two signs. Application 200447178 stated that the ground structure would be located within 200 feet of an arterial highway; that it would be used for an "accessory business sign," and that it would be completed at a cost of $50,000. (Id. Ex. C). DOB approved this application on June 4, 1999. In addition to the applications, Plaintiff also submitted a letter to DOB on May 25, 2000 explaining the accessory use, i.e. that "Imperial Iron Works has been in operation at this location since 1982." (Id. Ex. A).

After the applications were approved, Plaintiff entered a ten year lease under which it is obligated to pay $24,000 per year for the property on which it planned to erect its billboard structure. (Compl.¶¶ 7, 12). Plaintiff subsequently completed construction of the billboard.3 The completed billboard contains two separate advertising signs on each side of the V-shaped structure which combined, occupy 2,400 square feet. (Def.'s Opp'n Papers at 5).4

On March 27, 2000, DOB notified Plaintiff by letter that "[t]he approval and permits for the referenced premises will be revoked in ten (10) days pursuant to Section 27-197 of the Administrative Code unless additional facts or evidence is submitted to this office to prove there is conformance to all laws." (Chandler Aff. Ex. E). DOB explained that "[t]he approval and permits will be revoked on the basis that the proposed sign is contrary to Section 43-43 of the NYC Zoning Resolution. The proposed sign pierces the Sky Exposure Plane."5 (Id.).

In its March 27, 2000 letter, DOB also requested proof from Plaintiff within the same ten day period that the billboard was in compliance with § 42-53, in that it was "incidental" to a principal use on the zoning lot.6 According to the Defendants, DOB believed that the signs were either unrelated to the principal use of the zoning lot in violation of § 42-53, or that the principal use of the lot was unauthorized by local zoning laws. (Chandler Aff. ¶ 7-8). Plaintiff's counsel responded to DOB by letter dated April 4, 2000, stating that, "[s]uch conduct on the part of the Buildings Department is in clear violation of the constitutional rights of my client and should you revoke the permit as threatened, I will be compelled to bring a 1983 action in Federal Court." (Id. Ex. F). Plaintiff did not, however, submit any evidence to DOB of compliance with either § 43-43 or § 42-53 within the ten day period specified in the March 27, 2000 letter. On May 2, 2000, DOB revoked the permits and issued a stop-work order, prohibiting any further work on the site. Plaintiff then filed this complaint.

Following the filing of the instant complaint, DOB sent another letter to Plaintiff, dated May 16, 2000, requesting: (1) a survey of the property showing the distance from the property line to the sign pole; (2) documentation showing compliance with DOB's Operation Policy and Procedure Notice # 1/97, which requires proof that the business advertised on a sign is the same business located on the premises if such a sign is located within 200 feet of an arterial highway; and (3) a copy of the certificate of occupancy for the premises. (Id. Ex. H). On May 31, 2000 DOB received from Plaintiff a survey of the property, dated May 23, 2000, and a copy of Certificate of Occupancy Number 42891, which had been issued on October 4, 1967 and showed the property to be authorized for use as a parking lot. (Id. Ex. I). On June 2, 2000, DOB responded to Plaintiff's submissions, stating that based upon the survey, the sign structure appeared to be over thirty feet high and within fifteen feet of the street line, in violation of § 43-43. (Id. Ex. J). The letter further stated that, "[c]onsequently, either the sign, including the entire structure, must be moved so that it is not within 15 feet of the street line or the height must be reduced to less than 30 feet." (Id.).

At oral argument on July 5, 2000, Plaintiff's counsel stated (incorrectly): "we built the sign, but there's no copy on it, as I understand." (Rec. at 21). Defendant submitted a letter to the Court on July 6, 2000 stating that "based on a DOB inspection on June 30, 2000, an advertising sign is now being displayed on the premises that reads `The Cabrio. Drivers Wanted,' with the Volkswagon trademark." (Horowitz letter 6/30/00 at 2). Defense counsel also submitted five photographs of the sign structure to the Court, one of which shows the second sign reading "Imperial Iron Works Corp." and displaying a phone number and address. (DOB Special Report at 2). In a letter dated July 7, 2000, Plaintiff confirmed Defense counsel's allegations that Plaintiff had "violated" this Court's order to maintain the status quo until the instant motion had been resolved. The letter admits that, "[a]s appears from the photographs submitted by Mr. Horowitz, ... the billboard does in fact advertise the business at the location. The obverse side of the sign does advertise Volkswagon...." (Frost letter 7/7/00 at 3). Plaintiff's counsel volunteered to remove the Volkswagon sign, however, stating at oral argument, "I don't think my client understood what the Court said, that the status quo remains. So I'll direct him to take it down." (Rec. at 53).

Plaintiff argues generally that § 43-43, through its height and setback requirements, places impermissible restrictions on free speech and that "[h]undreds of pole signs near arterial highways have been constructed throughout the City of New York over many years and never before the latter part of 1999 has this section applied to pole signs." (Pl.'s Reply Mem. at 9). Plaintiff also contends that § 43-43 unfairly discriminates between various outdoor structures, e.g. by exempting flagpoles, chimneys, steeples and towers. (Pl.'s Mem. at 5). As to § 42-53, Plaintiff argues that this Section results in differential treatment of types of speech based on content, e.g. "a similar pole sign is permitted for political or charitable purposes." (Id. at 4). As noted, Plaintiff also contends that enforcement of both § 43-43 and § 42-53 against it constitutes a denial of equal protection and a taking in violation of the Fifth Amendment.

Defendants respond that the Zoning Resolution was amended in response to a New York State Supreme Court ruling in City of New York v. Allied Outdoor Advertising, 172 Misc.2d 707, 659 N.Y.S.2d 390 (Sup.Ct. Kings Co.1997), in which the Court held that § 42-53 "unconstitutionally favors onsite...

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6 cases
  • Infinity Outdoor, Inc. v. City of New York
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    ...allows onsite commercial signs." 997 F.2d 604, 610 (9th Cir.1993); see Krochalis, 108 F.3d at 1099; see also Marathon Outdoor v. Vesconti, 107 F.Supp.2d 355, 366 (S.D.N.Y.2000). It is clear from the history of the Zoning Resolution that the City's purpose is to allow on-site commercial sign......
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    ...deny approval for all uses that would enable the plaintiffs to derive economic benefit from the property); Marathon Outdoor, LLC v. Vesconti, 107 F.Supp.2d 355, 362 (S.D.N.Y.2000) (final-decision requirement not met because the plaintiff failed to seek a variance or waiver from the Board ch......
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    ... ... County ); Marathon Outdoor, LLC v. Vesconti , 107 ... F.Supp.2d 355, 362 (S.D.N.Y ... ...
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1 books & journal articles
  • What do grapes and federal lawsuits have in common? Both must be ripe.
    • United States
    • Albany Law Review Vol. 74 No. 2, January - January 2011
    • January 1, 2011
    ...(113) Id. (citing Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 348 (2d Cir. 2005)). See also Marathon Outdoor, LLC v. Vesconti, 107 F. Supp. 2d 355, 362 (S.D.N.Y. 2000) (preliminary injunction denied on ripeness grounds because the plaintiff had not sought a variance); Riverdale Realt......

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