Building’s Refusal to Permit Advertising Sign on Eagle Electric Building Upheld.

Eagle claimed huge sign visible from Queensboro Bridge was not an accessory sign.  The Eagle Electric Manufacturing Company, in 1936, constructed a 1,950 square foot sign on the rooftop of its plant located at 23-10 Queens Plaza South, Queens. The plant is located in the M1-9/R9 Special Long Island City Mixed Use zoning district and within 200 feet of the Ed Koch Queensboro Bridge. Eagle ceased operations in 2000; the plant where the sign is located is currently vacant. In 1999, the sign was leased to Atlantic Outdoor Advertising, Inc. and has since been used to advertise different products.

In 2001 and 2002, the Department of Buildings Queens Borough Commissioner determined that the sign was an “accessory” sign and not an “advertising sign” as defined in § 12-10 of the Zoning Resolution, and therefore could not be used an advertising sign. The Zoning Resolution defines accessory as a use conducted on the same zoning lot “clearly incidental to, and customarily found in connection with,” and in the “same ownership as [the lot’s] principal use.” It also defines advertising sign as a sign that “directs attention to a business, profession, commodity, service or entertainment conducted, sold, or offered elsewhere than upon the same zoning lot.” The Zoning Resolution prohibits advertising signs in manufacturing districts from being constructed or maintained within 200 feet of an arterial highway, but permits pre-existing nonconforming advertising signs to remain if they were lawfully established prior to June 1, 1968 or November 1, 1979––depending on the sign’s size––and the nonconforming use was not discontinued for a period of two years or longer.

On May 6, 2010, Atlantic applied to Buildings for a zoning resolution determination that the sign was advertising and could maintain its nonconforming status. Buildings denied the application on June 3, 2010, determining that the sign was an unpermitted accessory use. On August 9, 2011, Atlantic applied to Buildings for a permit to change the wording on the sign, but Buildings rejected the application on September 23, 2011, citing its June 2010 determination.

 Atlantic appealed the September 2011 permit rejection to the Board of Standards and Appeals, arguing that the sign was lawfully established as advertising because it was constructed in 1936 and could be maintained as a legal nonconforming sign; was never advertising because it directed attention to Eagle products sold offsite; and the nonconforming use was not discontinued for two years or more. In addition, Atlantic argued that the sign was advertising because, as a rooftop sign, it was intended to be viewed by drivers crossing the Queensboro Bridge and not passersby on the street, and did not display the plant’s address or provide directional cues to the lot.

 The BSA, however, denied Atlantic’s appeal, ruling that the sign was accessory and not advertising. The BSA reasoned that the sign was located on the same zoning lot as Eagle’s manufacturing plant, was clearly incidental to Eagle’s electrical product manufacturing and selling business, and Eagle owned both the sign and the plant. The sign’s lack of visibility to passersby and the complexity of the sign’s message were not elements of the advertising sign definition and could not be supported by the Zoning Resolution’s text.

 Atlantic brought an Article 78 proceeding, claiming that the BSA’s decision was arbitrary and capricious. On November 23, 2012, the New York Supreme Court in Manhattan upheld the BSA’s decision. The Court noted that the BSA must be given deference when determining factual issues such as whether a sign like Eagle’s is customarily connected with a lot’s principal use.

 On October 29, 2013, the Appellate Division, First Department, affirmed the lower court’s decision. The Court held that the BSA’s decision that the sign was accessory was not arbitrary and capricious, and that the lower court had given proper deference to the BSA’s expertise over whether the sign was incidental to and customarily in connection with Eagle’s principal use on the lot.

Atlantic Outdoor Advertising, Inc. v. Srinivasan, 110 A.D.3d 598, 2013 N.Y. Slip. Op. 06967 (1st Dep’t October 29, 2013) (Attorneys: Rothkrug, Rothkrug & Spector, LLP/Simon H. Rothkrug for Atlantic; Michael A. Cardozo and Martha Ross for NYC).

By: Eric Knowles (Eric is currently a Third Year Law Student at New York Law School)

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