Billboard lessee claimed the Board denied its permit arbitrarily.  OTR Media Group leased a billboard on the south wall of an eight-story building at the northeast corner of Tenth Avenue and West 40th Street in the Hell’s Kitchen neighborhood of Manhattan.  In 2012 the Department of Buildings refused OTR’s request for a permit to operate the billboard because it was within view of an arterial highway, the Lincoln Tunnel, in violation of the Zoning Resolution.  On October 22, 2013 the Board of Standards and Appeals agreed with Buildings’ application of a 360-degree standard for determining whether the sign was within view of the Lincoln Tunnel, defined as whether the sign could be seen by someone standing on the highway and looking in any direction, and affirmed the denial.

OTR petitioned for an annulment of the Board decision and argued the use of a 360-degree standard to define “within view” was arbitrary and capricious.  OTR argued the 360-degree standard should not apply because it was unreasonable to assume people would look behind themselves to see a billboard.  On February 24, 2014 Judge Eileen Rakower of Supreme Court, New York County denied the petition.  OTR appealed for a de novo review.

On October 29, 2015 the Appellate Division, First Department voted to affirm the denial.  Justice Angela Mazzarelli ruled the use of a 360-degree standard was not affected by error of law, was arbitrary and capricious, and recognized prior decisions that justified the use of the standard.

OTR Media Group, Inc. v. Board of Standards and Appeals of the City of New York, 18 N.Y.S.3d (A.D. 1 Dept. 2015), Oct. 29, 2015.