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.

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175 Grand Street, Brooklyn

Company argued that two promotional contest signs installed at bodega were accessory signs. On September 9, 2010, the City’s Department of Buildings issued four notices of violation to Contest Promotions NY LLC for two signs installed at the New Grocery and Deli located at 175 Grand Street in Brooklyn. Contest Promotions is a promotional company that works with businesses to promote contests and sweepstakes. The sign featured advertisements for the Nikita television program and the Topman clothing store. Directly above the advertisements, each sign featured small text for a promotional contest that read, “Free posters, while supplies last – Enter here to win great prizes.” Two NOVs charged violations of the City’s zoning resolution for installing advertising signs in an area where such signs were prohibited. The other two NOVs charged violations of the City’s building code for illegally installing signs without a building permit while acting as an unregistered outdoor advertising company.

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Illegal signs on 598 Broadway. Credit: LPC

Owner of 598 Broadway and Colossal Media Group repeatedly installed advertising signs without Landmarks’ approval. On May 4, 2012, the New York City Law Department and the Landmarks Preservation Commission announced that 598 Broadway Realty Associates and Colossal had reached a settlement agreement with the City to remove the existing illegal signs on the building facade facing Houston Street and to pay $225,000 in civil fines. According to the Law Department, this was the first lawsuit filed against an owner of a landmarked building for failing to obtain a sign permit. It is also the highest fine paid by an owner for failing to obtain a sign permit from Landmarks. As part of the settlement, Colossal also agreed to either remove or legalize signs on other buildings under Landmarks’ jurisdiction. These buildings, including 343 Canal Street, 438 Broome Street, 59 Grand Street, and 60 Grand Street, are all within the SoHo-Cast Iron Historic District.

New York State Supreme Court Justice Barbara Jaffe had issued a preliminary injunction ordering removal of the signs on November 14, 2012 (read CityLand’s coverage here). The settlement terminates the litigation.

Press Release: City Nets Record Settlement from Sign Company and Building Owner Who Repeatedly Installed Illegal Wall Signs on Landmarked Building, New York City Law Department Press Release, May 4, 2011.

The Department of Buildings failed to appeal both relevant ALJ decisions. In 2006, the owner of 882 Sixth Avenue entered into a licensing agreement with Troystar Inc., a registered outdoor advertising company. The agreement allowed Troystar to install a sign on the facade of the owner’s building. Two years later, the Department of Buildings issued the owner eight NOVs, one for failing to register as an “outdoor advertising company” and seven for failing to comply with various advertising sign regulations. The owner challenged the NOVs before an ALJ, who issued two separate decisions that addressed four violations each. In the first decision, dated July 6, 2009, the ALJ found that the owner was not an outdoor advertising company. In the second decision, dated July 10, 2009, the ALJ sustained all four NOVs and ordered the owner to pay $800 per violation.

Buildings appealed the second decision to the Environmental Control Board, arguing that the owner was acting as an OAC and that, as such, the Board should impose the statutory penalty of $10,000 per NOV. The Board agreed with Buildings, reversed the ALJ, and imposed a $40,000 penalty on the owner.

On appeal, Justice Eileen A. Rakower granted the owner’s article 78 petition, finding the Board’s decision arbitrary and capricious. The Board should not have revisited the issue of whether the owner was an OAC; the first ALJ decision, which decided that the owner was not an OAC, was never appealed by Buildings. And because the time to appeal that first decision had passed, the decision was final and binding on the Board.

Rosen v. City of New York, 2011 N.Y. Slip Op. 31683U (N.Y. Cty. Sup. Ct. June 21, 2011) (Rakower, J.) (Attorneys: Phillip L. Billet, for owner; Michael A. Cardozo, for NYC).

Property owners claimed they could not be fined for lessees’ illegal outdoor advertisements. Four separate property owners leased space on their premises to companies that procured, erected, and/or maintained advertisements in the space. The leases were all long-term. The Department of Buildings issued multiple notices of violation to the owners charging them for failing to register as an outdoor advertising company, failing to obtain a permit or a proper permit for outdoor advertising signs, and violating various zoning regulations. Each owner challenged the NOVs at a hearing before an ALJ, arguing that, as property owners, they were not outdoor advertising companies subject to the Code. In each case, the ALJ agreed with the owners and dismissed the charges. DOB appealed all four cases to the Environmental Control Board.

The Board reversed the ALJs’ orders as to the outdoor advertising company determination, imposing civil penalties ranging between $15,000 and $80,000. The Board determined that the owners qualified as outdoor advertising companies engaged in the outdoor advertising business, thus they were subject to the Code’s enhanced penalties for illegal signage. The Code provided that an outdoor advertising company was a person who, as part of his or her regular conduct of business, directly or indirectly made space on signs available to others for advertising. The Board found that by leasing space to advertising companies, the owners directly or indirectly made space on the signs available to others for advertising purposes. The owners failed to rebut this finding with contrary evidence, such as proof that leasing space on their buildings to advertising companies was outside their regular conduct of business. The owners filed article 78 petitions challenging the Board’s determinations, but the lower court denied them all.  (read more…)