Development

In developer's article 78 proceeding challenging denial of its application to install advertising signs, developer appealed from Supreme Court's dismissal of the proceeding. The Appellate Division affirmed, holding that the Board of Standards and Appeals had rationally determined that the sign s were not compliant with the zoning ordinance.

Developer sought to install a structure consisting of 27 separate two-sided LED panels, with 12 inches of space between the panels, on a single structure. The BSA determined that each side of the panel constituted a single sign within the meaning of the zoning ordinance, and that the sign therefore exceeded the maximum permitted by the zoning ordinance. Developer challenged the determination. In upholding Supreme Court's dismissal of the proceeding, the Appellate Division relied on the Zoning Resolution's definition of “surface area,” which includes “the entire area within a single continuous perimeter enclosing the extreme limits of writing … together with any material or color forming an integral part of the display….” In light of this definition, the court concluded that the BSA's determination was rational. The court then rejected developer's argument that the BSA should be judicially estopped from this determination because it was inconsistent with past determinations. The court emphasized that the BSA had provided reasons for departing from past precedent.