Development

The Appellate Division first rejected landowner's contention that the zoning board failed to adhere to its precedent because the town permitted other off-site advertising signs. The court noted that those signs were the product of settlement of a federal lawsuit, not an administrative determination by the zoning board. The court next rejected landowner's hardship claim, noting that landowner's predecessor knew or should have known that the oddly shaped property would be difficult to develop at the time of acquisition, rendering any hardship self-created. The court then held that the variance denial did not constitute selective enforcement, and therefore did not violate landowner's equal protection rights. The court noted that even if landowner could show that landowner was not receiving the same treatment as other outdoor advertisers, landowner could not show that the board had singled them out in an unconstitutional way.

Finally, the court held that the code's ban on off-site advertising signs did not constitute an unconstitutional restriction of freedom of speech. The court modified only to grant a declaration that the code was constitutional, rather than simply dismissing landowner's declaratory judgment action.

Denial of Billboard Variance Upheld
Expressview Development, Inc. v. Town of Gates Zoning Board
2017 WL 460597
AppDiv, Fourth Dept.
(memorandum opinion)

In landowner's combined article 78 proceeding and declaratory judgment action challenging denial of variances to operate billboards, landowner appealed from Supreme Court's denial of its petition. The Appellate Division modified to declare the town code constitutional, and otherwise affirmed, holding that landowner had not established that the variance denial violated any of its rights.

Landowner owns six undeveloped landlocked parcels located adjacent to an interstate highway. Landowner's predecessor acquired the parcels in the 1960s and 1970s, and, in 1982, the town approved a plan to develop an industrial park on the land. The park was never developed and in 2009, landowner sought to sell the parcel, and received a single offer, from a developer who made the offer contingent upon receipt of variances that would permit erection of billboards visible from the highway. The town code prohibits commercial signs not located on the site of the business for which they advertise. The town zoning board denied the variances, and landowner brought this combined action and proceeding to challenge the denial. Supreme Court denied the petition, and dismissed the declaratory judgment proceeding.

The Appellate Division first rejected landowner's contention that the zoning board failed to adhere to its precedent because the town permitted other off-site advertising signs. The court noted that those signs were the product of settlement of a federal lawsuit, not an administrative determination by the zoning board. The court next rejected landowner's hardship claim, noting that landowner's predecessor knew or should have known that the oddly shaped property would be difficult to develop at the time of acquisition, rendering any hardship self-created. The court then held that the variance denial did not constitute selective enforcement, and therefore did not violate landowner's equal protection rights. The court noted that even if landowner could show that landowner was not receiving the same treatment as other outdoor advertisers, landowner could not show that the board had singled them out in an unconstitutional way.

Finally, the court held that the code's ban on off-site advertising signs did not constitute an unconstitutional restriction of freedom of speech. The court modified only to grant a declaration that the code was constitutional, rather than simply dismissing landowner's declaratory judgment action.