Take Two Outdoor Media LLC v. Bd. of Standards & Appeals of N.Y.

• Decision Date: 21 May 2015
• Docket Number: 100293/13, 15180, 100294/13, 15179
• Citation: 10 N.Y.S.3d 45,128 A.D.3d 563,2015 N.Y. Slip Op. 04387
• Parties: In re TAKE TWO OUTDOOR MEDIA LLC, Petitioner–Appellant, v. BOARD OF STANDARDS AND APPEALS OF THE CITY OF NEW YORK, Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 563

10 N.Y.S.3d 45

2015 N.Y. Slip Op. 04387

In re TAKE TWO OUTDOOR MEDIA LLC, Petitioner–Appellant

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

100293/13, 15180, 100294/13, 15179

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

May 21, 2015.

Fried, Frank, Harris, Shriver & Jacobson LLP, New York (Richard G. Leland of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Karen M. Griffin of counsel), for respondent.

TOM, J.P., FRIEDMAN, RICHTER, KAPNICK, JJ.

Opinion

Judgments, Supreme Court, New York County (Carol E. Huff, J.), entered October 30, 2013 and November 7, 2013, denying the petitions seeking annulment of resolutions by respondent Board of Standards and Appeals of the City of New York dated January 8, 2013, which had affirmed the New York City Department of Buildings' (DOB) determinations rejecting petitioner's applications to register advertising signs, and dismissing the proceedings brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Respondent's denials, pursuant to New York City Zoning Resolution § 42–55, of petitioner's applications for registration of advertising signs on the roof and wall of buildings in proximity to the exit roadway of the Holland Tunnel were not contrary to law, arbitrary and capricious, or an abuse of discretion (see CPLR 7803[3] ). Respondent properly determined that the exit roadway is an “approach” within the meaning of 1 RCNY 49–01 and therefore is an “arterial highway” within the meaning of section 42–55 of the Zoning Resolution. Respondent properly relied on the definition of “approach” set forth in 1 RCNY 49–01 (Rule 49), which is consistent with the plain language of the Zoning Resolution. Further, respondent properly rejected petitioner's contention that the exit roadway is not an approach within the plain meaning of Rule 49.

Although the DOB had previously approved the signs, its subsequent determinations rejecting the signs adequately explained its reasons for “alter [ing] its prior stated course” (Matter of Charles A. Field Delivery Serv. [Roberts], 66 N.Y.2d 516, 520, 498 N.Y.S.2d 111, 488 N.E.2d 1223 [1985] ).

The court correctly rejected petitioner's argument that respondent's determinations violated its commercial free speech rights (see Clear Channel Outdoor, Inc. v. City of New York, 594 F.3d 94 [2d Cir.2010], cert. denied 562 U.S. 981, 131 S.Ct. 414, 178 L.Ed.2d 323 [2010] ).