Dep't of Buildings v. 67 Greenwich Street, New York County OATH Index No. 1666/09 (Apr. 10, 2009)

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1 Dep't of Buildings v. 67 Greenwich Street, New York County OATH Index No. 1666/09 (Apr. 10, 2009) Undisputed evidence at zoning violation proceeding established that property was being used for impermissible advertising purposes. Arterial highway exception found not to apply to sign located in C5-5 zoning district. Removal of sign recommended. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF BUILDINGS Petitioner - against - OWNERS, OCCUPANTS AND MORTGAGEES OF 67 GREENWICH STREET, NEW YORK COUNTY Respondents REPORT AND RECOMMENDATION KARA J. MILLER, Administrative Law Judge This proceeding was referred to this tribunal in accordance with Title 28, Article 503 of the New York City Administrative Code ( Administrative Code ). Petitioner alleges that respondents at the premises located at 67 Greenwich Street, New York County, also known as Block: 19, Lot: 11, located in a C5-5 zoning district, erected and maintained an advertising sign greater than 200 square feet without obtaining a permit in violation of section of the New York City Zoning Resolution ( zoning resolution ) and section of the Administrative Code, thereby constituting a public nuisance. Petitioner seeks an order of removal, pursuant to the Administrative Code, to abate the nuisance (ALJ. Ex. 1). At the hearing held on March 3, 2009, Bradley Green, Esq., appeared on behalf of Syms Corp., respondent owner and taxpayer of the premises, and OTR Media Group, Inc., respondent occupant of the façade of the premises. The record was held open until March 24, 2009, for the parties to submit briefs on the issue of whether an arterial highway exception exempted the building from enforcement of Article 503. As discussed below, I find the arterial highway exception inapposite and that respondents use of the premises for the erection and display of an advertising sign, which

2 -2- exceeds 200 square feet, is in violation of the zoning resolution and construction code, and recommend removal of the advertising sign. ANALYSIS Under the revised 2008 construction code (Article 28 of the Administrative Code), a sign (1) having a surface area greater than 200 square feet that is (2) erected, maintained, attached, affixed, painted on, or in any other manner represented on a building or premises in violation of the zoning resolution, the 2008 construction code, the 1968 building code, or any rules adopted pursuant thereto is a public nuisance. Admin. Code The Commissioner may, after notice and hearing, order the removal of such illegal signs. Admin. Code , Here, petitioner presented reliable and unrebutted documentary evidence and testimony from Steven Chuebon, Senior Supervisor of Special Operations, and Earl Rose, associate building inspector. Petitioner s witnesses credibly established that on two inspection dates, July 3, 2007, and October 19, 2008, they observed an advertising sign, which was approximated as measuring in excess of two thousand square feet, on the façade of the building located at 67 Greenwich Street, New York County (Pet. Exs. 1, 2). The witnesses further established that respondents lacked permits for the advertising signs, in violation of section of the construction code. The building is located in a C5-5 zoning district (Pet. Exs. 3, 4). Pursuant to sections and of the zoning resolution, the erection and display of advertising signs is not permitted in C5-5 zoning districts, but only permitted in C6-5, C6-7, C7, and C8 zoning districts. Additionally, pursuant to section of the zoning resolution, the maximum permissible surface area of a non-illuminated sign in a C5-5 zoning district is 200 square feet. The Department credibly established that the signs erected and displayed at the premises were advertising signs and that they exceeded 200 square feet. At trial, respondents counsel moved to dismiss the matter on the basis that although the advertising sign is located in a zoning district normally precluding such signs, the sign is within 200 feet of an arterial highway as designated within the zoning resolution. Respondents contends that the sign therefore falls within a limited exception which allows for the display of such signs, as agreed to by the Department following a constitutional challenge to its regulations. In October 2006, respondent OTR Media filed an action against the City in New York State

3 -3- Supreme Court challenging certain sections of the zoning resolution as it pertained to signs. 1 During the initial stages of the state court litigation, the parties reached an agreement ( Arterial Stay Agreement ) that temporarily suspended the enforcement of two provisions of the zoning resolution relating to signs, sections and 42-55: Until such time as this Court may enter judgment dismissing OTR s constitutional claims, either by summary judgment or otherwise, the City Defendants shall not enforce against OTR the challenged regulatory provisions contained in sections and of the New York City Zoning Resolution.... However, notwithstanding the foregoing, and strictly with respect to signs that are not subject to Zoning Resolution and 42-55, the provisions of the N.Y. Administrative Code (sic), , , and (only with respect to new signs) and the provisions of 1 R.C.N.Y , through 49-33, Rule 49 2 (amending Chapter 13 of the Rules of the City of New York) shall not be stayed. (Pet. Mem., Ex. 2: Stipulation and Order Disposing of Plaintiff s Motion by Order to Show Cause for a Preliminary Injunction, 3). Section sets forth additional regulations for advertising signs that are within view and proximity of arterial highways and larger public parks only in C6-5, C6-7, C7, and C8 commercial zoning districts, while section is similarly only applicable in manufacturing districts. Under the express language of the Arterial Stay Agreement, signs not subject to zoning resolution sections or are not stayed from enforcement. In other words, the Arterial Stay Agreement only prevents the Department from seeking removal of signs located within manufacturing districts or C6-5, C6-7, C7, and C8 commercial districts. As the sign here is located within a C5-5 district, the Department is not precluded by the Arterial Stay Agreement from enforcing Article 503 by seeking an order of removal of the sign. Respondents, in fact, concedes as much, but nonetheless asks this tribunal to reform the mutually agreed upon stipulation, so as to treat the sign here as falling within its scope because it is similarly situated to signs that are currently protected from enforcement initiatives by the Petitioner (Resp. Mem. in Support of Dismissal). There is no authority for this tribunal to unilaterally alter the stipulation, and I decline to do so. See Glucksman v. Glucksman, OTR Media Group, Inc. vs. Lancaster, Index No /2006 (Sup. Ct. N.Y. Co. filed Oct. 31, 2006). Shortly after the record in this proceeding was closed, a federal court granted the City s motion for summary judgment in a separate proceeding initiated by different owners of billboards and signs throughout the City. The federal court rejected constitutional challenges similar to those brought by respondent OTR Media in the state court case. Clear Channel Outdoor, Inc. v. City of New York, Index No. 06 Civ (S.D.N.Y. Mar. 31, 2009). 2 Administrative Code section was recodified as section in 2008.

4 -4- A.D.2d 812, 813 (2d Dep t 1999) ( The court had no authority to unilaterally modify the parties agreement to effectively extend the plaintiff's time within which to purchase the defendant's interest, since such relief contravened the express terms of the parties' agreement..., the terms of which are binding upon the parties and the court. ); Weissman v. Bondy & Schloss, 230 A.D.2d 465, (1st Dep t 1997) ( Stipulations of settlement are favored by the courts and not lightly cast aside... all the more so in the case of open court stipulations within CPLR 2104, where strict enforcement not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process. ). As such, respondents motion to dismiss is denied. Accordingly, the Department established that an advertising sign greater than 200 square feet in surface area had been erected and displayed on the façade of the premises in violation of the zoning resolution and construction code. FINDINGS AND CONCLUSIONS 1. The subject premises is situated in a C5-5 zoning district. 2. The premises has been used for the erection and display of an outdoor advertising sign which exceeds two thousand square feet. 3. Respondents did not obtain a permit for the erection and display of the outdoor advertising sign, in violation of the construction code. 4. The erection and display of any advertising sign or any nonilluminated sign exceeding 200 square feet at the subject premises is in violation of the zoning resolution. 5. The erection and display of any sign exceeding 200 square feet at the subject premises without a permit is a public nuisance. 6. The Department is not stayed from enforcing Article 503 of the construction code by the Arterial Stay Agreement.

5 -5- RECOMMENDATION I recommend that the Commissioner issue an order of removal for the illegal outdoor advertising sign erected and displayed at the subject premises. April 10, 2009 Kara J. Miller Administrative Law Judge SUBMITTED TO: ROBERT D. LIMANDRI Commissioner APPEARANCES: ALEX J. BERGER, ESQ. Attorney for Petitioner COHEN HOCHMAN & ALLEN Attorney for Respondents BY: BRADLEY GREEN, ESQ.