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New York Real Estate Law ReporterColumns & DepartmentsLandlord Tenant LawLitigation

Development

By ssalkin
June 01, 2020
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Prohibition of Advertising Sign Upheld

Baychester Retail III LLC v. Perlmutter NYLJ 3/23/20, p. 18, col. 6 AppDiv, First Dept. (memorandum opinion)

In an article 78 proceeding challenging the Board of Standards and Appeals' denial of a permit for an advertising sign, applicant appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that BSA's determination to treat multiple panels as a single sign was not arbitrary and capricious.

Applicant sought a permit to install 27 panels separately affixed to a single monopole which, together, would project a single advertisement more than 9,000 square feet in area. The advertisement was to be illuminated and displayed near the New England Thruway in the vicinity of co-op city. The Board of Standards and Appeals concluded that the panels should be treated as a single structure violating restrictions on the size of advertising signs. Applicant brought this article 78 proceeding, and Supreme Court dismissed the proceeding.

In affirming, the Appellate Division concluded that the BSA rationally found that applicant's resulting massive illuminated sign would be a hazard to motorists. The court held that the BSA had rationally distinguished other multi-panel signs that had been treated as multiple signs.

*****

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Failure to Consider Rezoning Application Not Subject to Judicial Review

Matter of Hampshire Recreation, LLC v. Village of Mamaroneck NYLJ 3/27/20 AppDiv, Second Dept. (memorandum opinion)

In a hybrid action/article 78 proceeding challenging the village board's refusal to rezone property, the village appealed from Supreme Court's denial of its motion to dismiss. The Appellate Division reversed and dismissed the claims, holding that the village's actions were not subject to review under article 78.

Landowner applied to rezone its property to an open space/residential district. The village board declined to consider the application. Six months later, landowner again applied for a rezoning, and the village board again declined to consider the application. Landowner then brought this proceeding seeking to annul the village board's decision. Supreme Court denied the village's motion and the village appealed.

In reversing, the Appellate Division held that amendment of a zoning ordinance is a purely legislative function and that the village board was not obligated to consider and vote upon every application for a zoning change. As a result, the village's actions in this case were beyond judicial review, and the village was entitled to dismissal.

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