Posted by: Patricia Salkin | November 13, 2015

NY Appellate Court Denies Attempt Annul a Determination of Board of Standards and Appeals Regarding Definition Governing Placement of Signs

This appeal arose from a decision of the Supreme Court, New York County, which in a proceeding seeking to annul a determination of respondent Board of Standards and Appeals (BSA), affirmed the denial of petitioners’ application for a permit for an advertising sign. The court also denied the petition insofar as it claimed that the definition of “within view” employed by respondents was arbitrary and capricious, and transferred the question of substantial evidence. Because the “arbitrary and capricious” issue raised by petitioners and disposed of by the court was not an objection that could have terminated the proceeding within the meaning of CPLR 7804(g), and the court reviewed the matter de novo.

Here, the court found that BSA’s interpretation of New York City Zoning Resolution § 42–55 to mean that an advertising sign is “within view” of an arterial highway if it is discernible, using a 360 degree perspective, by a person located on the highway, was not affected by an error of law or arbitrary and capricious. Substantial evidence supported the BSA’s determination that, upon application of the “360 degree standard,” the sign at issue was within view of the arterial highway. Accordingly, BSA’s determination was unanimously confirmed, the petition was denied, and the proceeding brought pursuant to CPLR article 78 was dismissed.

OTR Media Group, Inc. v Board of Standards and Appeals of the City of New York, 2015 WL 6510756 (NYAD 1 Dept. 10/29/2015)

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