Van Wagner Communications, LLC v. Board of Standards & Appeals

129 A.D.3d 588, 10 N.Y.S.3d 438

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 23, 2015
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Donna M. Mills, J.), entered February 19, 2014, denying the petition seeking annulment of a resolution by respondent, Board of Standards and Appeals of the City of New York, dated February 5, 2013, which affirmed the New York City Department of Buildings’ denial of petitioner’s applications to register two commercial advertising signs, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Pursuant to New York City Zoning Resolution § 52-61, petitioner’s discontinuance of its legal nonconforming use of two advertising signs for more than 15 years following the 1973 collapse of the West Side Highway, extinguished its rights to the nonconforming use. Petitioner has failed to demonstrate that it falls into the limited exception applicable when discontinuance “is directly caused by . . . the construction of a duly authorized improvement project by a governmental body or a public utility company” (NY City Zoning Resolution § 52-61; cf. Matter of 149 Fifth Ave. Corp. v Chin, 305 AD2d 194 [1st Dept 2003] [nonconforming use was not discontinued within the meaning of the Zoning Resolution where sign was removed to permit legally mandated building facade inspections and repairs]).

We have considered petitioner’s remaining contentions, including its constitutional argument, and find them unavailing.

Concur — Tom, J.P., Renwick, Moskowitz, ManzanetDaniels and Feinman, JJ.