Basement apartment ruled legal; Condo’s “peace” sign ruled illegal

345 West 70th Street in Manhattan. Image Credit: CityLaw

Buildings charged that owner unlawfully converted basement into additional rental apartment. In 2013 the Department of Buildings charged the owner of 345 W 70th Street, a multiple dwelling, with creating an illegal apartment in the basement. At the administrative hearing, Buildings submitted three I-cards for the building from 1916, 1938 and 1945. Before 1938, the Department of Housing Preservation and Development used I-cards to record the occupancy and arrangement of the buildings HPD had inspected. Certificates of occupancy were not required until 1938. The 1916 and 1938 I-cards both showed that the building had a basement apartment. The 1945 I-card, however, did not show a dwelling unit in the basement. Buildings argued that the 1945 I-card, as the most recent documentation, established the legal occupancy of the premises. The owner defended that the 1945 inspector may have missed the apartment.

The administrative law judge found the apartment was illegal and imposed a $1,200 civil penalty. The Environmental Control Board sustained the decision. The owner filed an article 78 petition.

The Second Department annulled the determination and fine, ruling that the decision was not supported by substantial evidence and was based on an error of law. The 1916 and 1938 I-cards indicated that the basement was in use as a dwelling, thereby establishing the apartment’s legal use prior to the establishment of certificates of occupancy. Buildings failed to present evidence of a subsequent change in the basement’s legal use. Even if the basement were not in use at the time, the 1945 I-card was insufficient to establish a change in the apartment’s legal use.

West 70th Tenants Corp. v. ECB2016 NY Slip Op 07099 (1st Dep’t Oct. 27, 2016) (Attorneys: Daniel Richland, for owner; Zachary W. Carter, Jeremy Shweder, for ECB).


Ansonia condo owner placed illuminated “Peace” sign in 17th floor window. In 2010 Brigitte Vosse placed an illuminated “Peace” sign in the window of her seventeenth-floor condo in The Ansonia at 2109 Broadway in the Upper West Side of Manhattan. The Department of Buildings fined her $800 for violating the Zoning Resolution which prohibits illuminated signs in her neighborhood at heights above forty feet. Vosse appealed, arguing that the City had placed an unlawful content-based restriction on her speech, citing an exemption in the Zoning Resolution for flags, banners, or pennants of a civic, philanthropic, educational, or religious nature. Vosse also argued that even if content-neutral, the regulation was an unreasonable “time, place, and manner” restriction on her speech.

On November 18, 2015, District Judge Jed Rakoff ruled for the City and dismissed Vosse’s complaint. The Zoning Resolution did not prohibit all signs forty feet or more above curb level, but allowed non-illuminated signs twelve square feet in size or less. The sign limitation was narrowly tailored to achieve the City’s interest and allowed for adequate alternatives to communicate the same message. Had Vosse’s sign been non-illuminated, the judge held, she could have displayed it in the same manner and not been in violation of the Resolution.

On October 14, 2016, the Second Circuit affirmed Judge Rakoff’s decision dismissing Vosse’s case. The Court ruled that “maintaining an aesthetically pleasing cityscape and preserving neighborhood character” were legitimate government objectives. The Court found that Vosse failed to show how the regulations were not narrowly tailored—noting that narrowly tailored does not mean the least restrictive or least intrusive. Further, the Court ruled that there were ample alternative channels for communication. Vosse could legally display the same “Peace” sign—just not illuminated.

An earlier Second Circuit case had also affirmed the dismissal of Vosse’s constitutional claim of content-based discrimination. See CityLaw’s coverage of that decision in the November/December 2015 edition.

Vosse v. NYC, 2016 WL 6037372 (2nd Cir. Oct. 4, 2016) (Attorneys: Daniel Richland, for owner; Elizabeth S. Natrella, Assistant Corporation Counsel (Richard Dearing, Pamela Seider Dolgow, Of Counsel, on the brief) for Zachary W. Carter, Jeremy Shweder, for ECB).


By: Jonathon Sizemore (Jonathon is the CityLaw Fellow and a New York Law School Graduate, Class of 2016).


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