Posted by: Patricia Salkin | February 9, 2017

NY Appellate Court Rejects Variance Hardship Claim for Billboard as Self-Created and Rejects First Amendment Claim

Petitioner-plaintiff Canandaigua National Bank, the trustee of the Max M. Farash Declaration of Trust, owned real property in the Town of Gates adjacent to Interstate 390. Developer Max M. Farash purchased the parcels and a sixth adjacent parcel in 1986, but never developed the property in accordance with the original industrial park plan. The Trust tried to sell the property in 2009, and the only offer came from petitioner-plaintiff Expressview Development, Inc., contingent upon its receipt of variances that would allow it to construct billboards that would be visible from the highway. The billboard would violate the Town of Gates Code § 190–22(E) which, prohibited commercial signs not located on the site of the business for which they advertise. Following an initial application that was denied without prejudice, petitioners-plaintiffs sought use and area variances permitting the installation of the billboards, but respondent-defendant Town of Gates Zoning Board of Appeals (ZBA) denied their application. Petitioners sought to annul the determination of the ZBA, and they argued that the Town of Gates Code § 190–22(E) was unconstitutional. The lower court dismissed the amended petition-complaint.

On appeal, the court found that petitioners’ primary contention that the ZBA failed to adhere to its precedent was without merit because petitioners failed to establish the existence of earlier determinations by the ZBA that were based on essentially the same facts as petitioners’ present application. Here, the settlement of a federal lawsuit in 1999 by the executive and legislative branches of the Town permitting the installation of certain billboards along the highway by a pair of outdoor advertisers was not a determination made by the ZBA as a result of its administrative variance process, and therefore did not constitute precedent from which the ZBA was required to explain any departure.

Furthermore, while subsequent changes in economic conditions might have rendered the industrial park plan financially infeasible, the record reflected that the extent of the limitations on the property of which Farash knew or should have known at the time of his purchase remained. The court found that Farash purchased the property after the approval of the industrial park plan, the adoption of applicable zoning restrictions, and the construction of the highway adjacent to the property. Accordingly there was substantial evidence supporting the ZBA’s determination that the hardship was self-created.

Petitioners’ final contention was that the Town of Gates Code § 190–22(E) was an unconstitutional restraint of freedom of speech under the First Amendment on the ground that it improperly distinguished between on-site and offsite commercial signs. However, the court rejected this claim under the intermediate scrutiny test for restrictions on commercial speech set forth in Central Hudson Gas & Elec. Corp. v Public Serv. Commn. of N.Y. (447 U.S. 557, 561–566).

In the Matter of Expressview Development, 2017 WL 460597 (NYAD 4 Dept. 2/3/2017)

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