Matter of Clear Channel Outdoor, Inc. v. Town Bd. of Town of Windham, 95057.

• Citation: 2004 NY Slip Op 06230,780 N.Y.S.2d 822,9 A.D.3d 802
• Decision Date: 29 July 2004
• Docket Number: 95057.
• Parties: In the Matter of CLEAR CHANNEL OUTDOOR, INC., et al., Appellants, v. TOWN BOARD OF THE TOWN OF WINDHAM et al., Respondents.
• Court: New York Supreme Court Appellate Division

9 A.D.3d 802

780 N.Y.S.2d 822

2004 NY Slip Op 06230

In the Matter of CLEAR CHANNEL OUTDOOR, INC., et al., Appellants, v. TOWN BOARD OF THE TOWN OF WINDHAM et al., Respondents.

95057.

Appellate Division of the Supreme Court of the State of New York, Third Department.

July 29, 2004.

Appeal from a judgment of the Supreme Court (Spargo, J.), entered November 14, 2003 in Greene County, which, inter alia, dismissed petitioners' application, in a combined proceeding pursuant to CPLR article 78 and action for a declaratory judgment, to review a determination of respondents ordering removal of certain billboards and declared that petitioner Clear Channel Outdoor, Inc. was guilty of violating respondent Town of Windham's site plan review law and sign ordinance.

SPAIN, J.

Petitioner Clear Channel Outdoor, Inc. leases land from petitioner William Herbert in the Town of Windham, Greene County on which there are three billboard signs, referred to as billboards 681, 682 and 736. Respondent Town of Windham has a sign ordinance requiring a permit to erect a sign and regulating the size and lighting of signs in the Town. The ordinance also prohibits the construction of new signs or the alteration or relocation of existing signs except as permitted by the ordinance or where needed to bring the signs into compliance with the ordinance. The Town's site plan review law also requires a permit for certain improvements to land.

In 2002, billboards 681, 682 and 736 were rebuilt, during which at least one of the signs was moved and all were raised higher. Billboard 736 was also doubled in size, and brighter lights were installed on all of the signs. Clear Channel did not apply to the Town for any type of permit for this work. The changes prompted a neighbor, who could see the signs through his living room window, to complain to the Town. Thereafter, the Town's Code Enforcement Officer, respondent Dominick Caropresso, filed six separate criminal informations against each petitioner in Town Justice Court alleging that petitioners violated the sign ordinance and site plan review law, and he served petitioners with criminal summonses in December 2002. In January 2003, Caropresso denied Clear Channel's applications for permits under the sign ordinance for the previously rebuilt billboards and ordered that they be removed.¹

In April 2003, petitioners commenced this combined CPLR article 78 proceeding and declaratory judgment action against the Town, its Town Board and Caropresso, challenging the validity of the sign ordinance and site plan review law, as well as the applicability of those laws to the rebuilding of the billboards. Petitioners also sought a permanent injunction prohibiting respondents from interfering with their use of the billboards and from pursuing the criminal summonses. The parties agreed to consolidate this action/proceeding with the criminal matter then pending against petitioners in Justice Court; the criminal charges against Herbert, but not Clear Channel, were eventually dismissed. Supreme Court dismissed the petition/complaint, finding that petitioners' challenges to the validity of the sign ordinance and site plan review law were time-barred and that Clear Channel was guilty of violating those enactments. As such, Supreme Court ordered the removal of the signs and fined Clear Channel $500. Petitioners appealed, and this Court stayed that portion of Supreme Court's judgment which ordered the signs' removal.

We affirm. Initially, we agree with Supreme Court that petitioners' challenges to the Town's site plan review law and sign ordinance are barred by the applicable statute of limitations. Petitioners argue that the Town failed to conduct a review pursuant to the State Environmental Quality Review Act (see ECL 8-0101 et seq.) prior to enactment of both laws and the Town failed to properly publish the sign ordinance as required by Town Law § 133. As both arguments attack procedures followed in enacting those laws as opposed to their substance, a CPLR article 78 proceeding is the appropriate vehicle with which to review them, and the four-month statute of limitations in CPLR 217 applies (see Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 202-203 [1987]; Matter of McCarthy v Zoning Bd. of Appeals of Town of Niskayuna, 283 AD2d 857, 857-858 [2001]). That four-month period begins to run upon "the effective date[s] of the presumptively valid enactment[s]" (Matter of McCarthy v Zoning Bd. of Appeals of Town of Niskayuna, supra at 858). Given that this proceeding was not commenced until April 2003, almost a year after the latest site plan review law became effective and 15 years after the most recent sign ordinance went into effect, petitioners' challenges to the procedures employed in the enactment of the Town's site plan review law and sign ordinance are time-barred.²

We also find lacking in merit petitioners' contention that respondents should be estopped from enforcing the sign ordinance and site plan review law. It is well...