Signs and Billboards: What’s Legal and What’s Not?

Illustration: Jeff Hopkins.

Sign installation in New York City triggers regulations governing location, size, illumination, and construction. The New York City Building Code and the New York City Zoning Resolution are the two main bodies of law governing signs in New York City. The Building Code regulates the construction and maintenance of signs, such as permissible construction materials, and is primarily concerned with public health and safety. The Zoning Resolution, while implicating issues of public health and safety, also encompasses aesthetic considerations. Restrictions on the size, height, surface area, and illumination of a sign are intended to promote a distinctive look in that zoning district, while striking a balance between the desires of society and the rights of property owners. For example, an illuminated sign that may be a desirable tourist attraction in Times Square, becomes a nuisance in a residential neighborhood.

The Zoning Resolution’s rules differ depending on whether a sign is accessory to the business at that location, or is an advertising sign. An advertising sign, as defined in Zoning Resolution Article 1, Chapter 2, Section 12-10, directs attention to a business or product sold elsewhere that is not accessory to a use located on the zoning lot. In order to be classified as an accessory sign, the sign’s content must meet the standard of “accessory use” as defined in Section 12-10 of the Zoning Resolution. Section 12-10 has three requirements for accessory use: (1) the use must be conducted on the same zoning lot as the principal use to which it is related, except accessory docks and off-street parking or loading; (2) the use must be clearly incidental to, and customarily found in connection with the principal use; and (3) the use must be in the same ownership as the principal use or be operated and maintained on the same zoning lot substantially for the benefit or convenience of the owners, occupants, employees, customers, or visitors of the principal use. If any of these three elements are missing, the sign will be considered an advertising sign. If a sign does not fit into either the definition of advertising or accessory, the sign is regulated as accessory sign.

Residential Districts

The Zoning Resolution bans advertising signs from residential zoning districts, but allows for the limited installation of accessory signs. The Zoning Resolution also permits “for sale” and “for rent” signs twelve square feet or smaller, along with Community facility flags, banners, or pennants. Signs indicating off-street parking are allowed so long as they do not exceed two square feet per entrance or exit. Community facilities are defined as uses listed in use groups 3 and 4, which include non-commercial art galleries, colleges, trade schools, convents, adult care facilities, golf courses, health centers and houses of worship. A complete list of uses and their corresponding group number is available in Appendix A of the Zoning Resolution.

Illuminated accessory signs in residential districts are only authorized for hospitals and other health-related facilities. These signs, however, are not allowed to flash and must be limited to the lesser of 25 square feet per street frontage or 15 percent of such street frontage in feet. The Commissioner of Buildings must also make a determination that the hospital’s illuminated sign is oriented in a way that minimizes the amount of light projected onto nearby residences. Additionally, illuminated hospital signs must also conform to the same general regulations as any other sign in a residential district. For example, no sign in a residential district is permitted to extend beyond the street line by more than twelve inches or rise above the ceiling of the ground floor, or 20 feet above the curb level, whichever is lower.

For buildings containing residences, the Zoning Resolution allows one nameplate measuring one square foot or less per dwelling or room unit to identify the name and address of the occupant or permitted occupation. For multiple dwellings, apartment hotels, permitted non-residential buildings or structures other than hospitals and related facilities, the Zoning Resolution permits one identification sign measuring up to 12 square feet to indicate name and address of the building or the name of management. For community facilities other than hospitals and related facilities, this restriction is relaxed for a bulletin board not exceeding 16 square feet. For a sign on an awning or canopy, the lettering used cannot exceed 12 inches in height.

The Zoning Resolution even shields adjacent residential districts from the view of advertisements displayed on vessels plying waterways. Such vessels may only display signage that directs attention to a profession, business, commodity, service, or entertainment conducted by or sold aboard the vessel.

Commercial Districts

Regulation of accessory and advertising signs is far more complicated in commercial districts. Accessory signs in commercial districts are limited by how high the sign may be affixed to a building, by how much it may project from the building, by how big it may be in relation to the lot’s street frontage, and by illumination restrictions. Generally, the greater a building’s street frontage, the larger an accessory sign that will be allowed.

Advertising signs, on the other hand, are allowed only in C6-5, C6-7, C7, and C8 commercial districts and not allowed at all in the other commercial districts. Since both accessory and advertising signs are permitted in these four commercial districts, the distinction between the two signs is less important than in C1 through C6 commercial districts where advertising signs are prohibited. In C1 through C6 commercial districts, a legally conforming sign could be rendered illegal simply by changing the content of the sign from advertising one’s own business to advertising the business of another.

Manufacturing Districts

Manufacturing districts impose less restrictive regulations upon accessory and advertising signs than do residential or commercial districts. The three manufacturing districts (M1, M2, and M3) generally allow both accessory and advertising signs, with a maximum sign surface area for each zoning lot based upon the lot’s street frontage. To calculate the sign area, the length of the zoning lot’s street frontage is multiplied by six for a non-illuminated sign, or by five for an illuminated sign. The resulting number is the total allowable square feet of permitted signage, before applying additional restrictions. For example, although a lot with 300 feet of street frontage should be allocated 1,800 total square feet of non-illuminated signage per the formula, the Zoning Resolution imposes a maximum ceiling of 1,200 square feet of non-illuminated signage. Signs in manufacturing districts are further limited if they are in proximity to nearby residences or joint living-work quarters for artists. Such signs may not interfere with the reasonable use and enjoyment of the residence, may not flash, and are limited to no more than 750 square feet per non-illuminated sign and 500 square feet per illuminated sign.

Arterial highways and Parks

Since 1940, New York City has banned advertising signs (i.e., billboards) within 200 feet of an arterial highway, and within view of a public park of one-half acre or more. Accessory signs in residential, commercial, and manufacturing districts, however, are allowed within 200 feet of an arterial highway or within view of a public park, but must be reduced in size. The Department of Buildings maintains a list of the City’s arterial highways and parks larger than one-half acre. Since 1999, the Department of Buildings has required applicants seeking an accessory sign permit to list the names and distances to any relevant arterial highways or public parks and to agree to maintain the sign as an accessory or non-commercial sign.

In the early 1980’s, Congress, in amendments to the Highway Beautification Act, encouraged states to restrict the use of advertising billboards near interstate highways by conditioning the receipt of certain federal highway funds on enforcing sign restrictions. When it became clear that enforcement of billboard restrictions would be impracticable in New York City, the City grandfathered all signs near highways that complied with the federal standards even if they did not comply with the local Zoning Resolution. Many of these grandfathered signs are still in use today.

By the late 1990s billboard advertising had become so profitable that a sign’s revenue could actually exceed the maximum fine the City could impose on a violator. In 2001, in an effort to control billboard proliferation, the City passed legislation that increased the maximum allowable fine for a violation to $25,000 per day. The threat of large fines put the bite back in the City’s bark. For example, in 2012 the City settled with 598 Broadway Realty Associates and Colossal Media Group for $250,000 after the companies repeatedly painted illegal signs on a building within a landmarked historic district without a permit.

Sign Permit Process

Sign installation may additionally require a Department of Buildings permit. There are three types of DOB sign permits: construction permits, electrical permits, and illuminated sign permits. Generally, a construction permit is required for signs larger than six square feet unless the sign is to be painted. If the sign requires electricity, the applicant will also have to get an electrical permit. Additionally, an illuminated sign permit is required for any illuminated sign. The illuminated sign permit must be renewed annually and requires the payment of a separate fee. The application for both the construction permit and the illuminated sign permit must be filed with the Department of Buildings’ Borough Office in the borough where the sign is located.

If the building is landmarked or located within a historic district, the applicant will also have to file an application with the Landmarks Preservation Commission. Landmarks issues three types of permits: a permit for minor work, a certificate of no effect on protected architectural features, and a certificate of appropriateness. A permit for minor work can be obtained only if the proposed sign does not require a building permit (i.e. a painted sign, or a sign smaller than six square feet) and will not disturb the protected architectural features of the landmarked building. A certificate of no effect can be obtained where construction of the proposed sign requires a building permit, and such construction will not disturb the protected architectural features. If the proposed sign will disturb the protected architectural features of the building, however, the project requires a public hearing at Landmarks before the Commission may approve a certificate of appropriateness.

Once all relevant permits are approved and issued, the applicant will need to find a Department of Buildings-licensed sign hanger to hang the sign. Buildings’ website maintains a current list of licensed sign hangers along with their license numbers, license expiration dates, and contact information. In addition to hiring a sign hanger, the applicant must also consider whether it needs a special or a master sign hanger, depending on the size of their sign. Special sign hangers are limited to signs that are 150 square feet and 1,200 pounds or less on the outside of a building. Master sign hangers have no limitations on the size or weight of a sign they may hang.

The Appeals Process

There are two main ways in which the issue of accessory versus advertising signs can appear before a court or administrative agency. The first is a notice of violation, which can be issued by the Department of Buildings’ Sign Enforcement Unit. The cited party may appeal the NOV to the Environmental Control Board for a hearing.

The second major way for a sign issue to appear before a court or administrative agency is through the appeal of a Department of Buildings decision, either rejecting an application for a sign permit or by Buildings revoking an earlier permit. In either of these cases, the sign owner must first appeal to Buildings’ Borough Commissioner. If the Borough Commissioner refuses to allow the sign the applicant may then appeal to the Board of Standards and Appeals. Adverse decisions by the BSA or the ECB are appealed through an article 78 petition to the Supreme Court.

Three recent cases are examples of instances where property owners argued that what appeared to be an illegal sign was a legal accessory sign.

In NYC v. 335 Madison Ave LLC (May 19, 2011, ECB Appeal No. 1000984), Emigrant Savings Bank posted signs on the windows of its ATM lobby. The signs portrayed an image of Benjamin Franklin with text that read, “A dollar saved is a dollar earned” and advertised “,” a related but separate legal entity from Emigrant Savings Bank. On October 24, 2009, the Department of Buildings’ Sign Enforcement Unit issued 335 Madison Avenue nine violations for illegally displaying advertising signs without a permit in a commercial district that did not allow advertising signs. In contesting the violations before the ECB, 335 Madison Avenue argued that the signs were legal accessory signs because they related to banking, the principal use of the zoning lot.

The ECB disagreed. The principal use of the zoning lot was as an office building and the signs lacked a connection between the building and The message of the signs was not that customers could create a account in the building, but rather that customers could go online and register. This is the core of an advertising sign—that it directs attention off the zoning lot.

In a second case, NYC v. Hyatt Equities, LLC, the Grand Hyatt Hotel hung a large Starbucks sign on the side of the hotel. The sign was four times larger than Hyatt’s own sign and read “Thanks for voting us #1 Best Coffee. We love you, too. It’s not just coffee, it’s Starbucks along with the “Zagat #1 rated” logo. Like 335 Madison Avenue, the Hyatt was located in a commercial zoning district that did not permit advertising signs. On September 18, 2009, Hyatt was cited with three violations. Hyatt appealed the violations, arguing that the sign was an accessory sign, since the hotel had a supply agreement with Starbucks that required the hotel to use Starbucks coffee in its restaurants, banquets, and room service areas.

The ECB ruled that the Starbucks sign was not an accessory sign. The ECB noted that the principal use of the building was as a hotel, and that the sign did not mention the availability of Starbucks coffee or other products being available in the hotel. Further undercutting the claim that the sign was an accessory sign, Hyatt’s supply agreement with Starbucks revealed that in 2009 the hotel was paid $47,100 for hanging the sign on its facade. To characterize this arrangement between Starbucks and Hyatt differently would circumvent the clear economic reality of the transaction: that Starbucks paid for advertising space on the side of the Grand Hyatt Hotel.

The last case involved a claim that two signs were permitted non-conforming—or grandfathered—signs. In September of 2009, 12th Avenue Realty Holding Corp. applied to Buildings for a non-conforming accessory sign permit for two 1,200 square foot signs adjoining its small warehouse property along the Henry Hudson Parkway. The application was denied because 12th Avenue Realty failed to demonstrate that the accessory signs were erected before an amendment to the zoning resolution on February 27, 2001 reduced the maximum accessory sign size to 500 feet where the sign is within 200 feet of an arterial highway or park. Additionally, a grandfathered sign requires continuous use with no interruption of such use for more than two years. Buildings ruled that 12th Avenue Realty was unable to demonstrate that the signs were continuously used as accessory signs after February 27, 2001.

On appeal to the Board of Standards and Appeals, calendar numbers 24-12-A & 147-12-A, 12th Avenue Realty was unable to convince the BSA that its signs were even accessory signs. From about 1999 to 2008, Tommy Hilfiger Corporation had used the warehouse for the limited purpose of storing products and later for storing display fixtures. After May 1, 2010, Wodka, LLC leased the premises for staging promotional activities. Both Tommy Hilfiger and Wodka used the adjoining signs to advertise their products, but not to direct any customers to the warehouse. Thus, the small building at 2368 12th Avenue looked more like a “sham” warehouse intended to justify the use of the site solely for advertising.

– Andrew Thompson

6 thoughts on “Signs and Billboards: What’s Legal and What’s Not?

  1. This is a great article! Better, more complete, more useful answers than I got from a $2,000 memo from my white shoe law firm.

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  3. Thank you for the information, please I need an article on “Justification for Tarrif increase by government regulators on Outdoor Advertising Companies.
    Thank you

  4. I live in Arlington VA and article very helpful!! Good work!! I have a situation here where lines are being blurred between advertising sign and on site business!!

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