Appellate Division Overturns BSA Denial of Sign Registration

The Board of Standards and Appeals had denied the application based on its finding that the signage was an art installation rather than an “advertising sign,” as defined in the Zoning Resolution. Local Law 31 of 2005 amends the regulations governing the usage of outdoor advertising signs by requiring companies engaged in outdoor advertising to submit to the Department of Buildings an exhaustive list of all of the companies’ “signs, sign structures and sign locations” which are located within 900 feet and within view of an arterial highway. Pursuant to Local Law 31, a Sign Registration Application was submitted to the Department of Buildings on April 4, 2011 to register an advertising sign-structure on the south wall of a six-story parking garage located at 111 Varick Street in Lower Manhattan, which is 57 feet from the Holland Tunnel—a designated arterial highway under the Zoning Resolution. The Department of Buildings rejected the application on March 12, 2012 by pointing to evidence indicating that the sign’s size and orientation had been changed, which are actions in violation of the Zoning Resolution. On January 15, 2013, the Board of Standards and Appeals agreed with the Buildings’ determination that the sign structure’s status as an “advertising sign,” as defined by Zoning Resolution § 12-10, was discontinued when Terry Fugate-Wilcox leased the sign structure from 1979 to 1989 to display his art installation titled the “Holland Tunnel Wall,” and the Board affirmed the denial of the application.

The sign owner petitioned for an annulment of the Board’s determination by arguing that Mr. Fugate-Wilcox’s use of the sign structure was for advertising purposes. According to the sign owner, Mr. Fugate-Wilcox’s art installation qualifies as an advertising sign pursuant to the zoning resolution, because the installation was signed by the artist, and was displayed as an advertisement for the artist’s work by occupying a space traditionally used by advertising signs. Further, he argued that the art installation was an advertisement for the specific piece of art displayed on the signage, which was ultimately dismantled and sold as separate pieces.

The Supreme Court, New York County remanded the case back to the Board to have the Board more fully develop the factual record and explain in greater detail the distinction between an art installation and an advertising sign. On December 17, 2013, the Board issued a decision re-adopting its prior unanimous denial of the application. In its decision, the Board noted that the art installation falls short of existing as an “advertising sign” because of its failure to “announce, direct attention, or advertise,” as required by Zoning Resolution § 12-10. The Board found that the sign owner’s interpretation of the statute would render obsolete the “announce, direct attention, or advertise” requirement, because it would necessarily allow signed artwork of all kinds—like graffiti—to be legally registered as an advertising sign with the Department of Buildings.

On March 24, 2016, the Appellate Division, First Department found in favor of the sign owner and overturned the Board of Standards and Appeals’ denial of the sign registration application. Justice Angela Mazzarelli ruled that the lower court was correct in finding that the installation at issue fit within Zoning Resolution § 12-10’s definition of an “advertising sign,” because the “installation directed attention to the artist, who, inter alia, sold off the installation in pieces when it was dismantled, 10 years after it first appeared.” The court held that because the character of the art installation amounts to an advertising sign, the sign structure’s status as an advertising sign remained uninterrupted and, therefore, not extinguished.

In re Van Wagner Communications, LLC v. Board of Standards and Appeals of the City of New York, 2016 NY Slip Op 02165 (1st Dep’t 2016).

By: Jessica Soultanian-Braunstein (Jessica is the CityLaw Fellow and a New York Law School Graduate, Class of 2015)

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