Posted by: Patricia Salkin | May 18, 2017

NY Appellate Court Holds Environmental Control Board was Not Equitably Estopped from Rejecting Owner’s Contention that Sign was Valid

In 2011, the Department of Buildings of the City of New York (hereinafter “DOB”) issued multiple notices of violation to the petitioner in connection with an advertising sign painted on the wall of the petitioner’s four story apartment building in Astoria, Queens. The sign at issue had become a nonconforming advertising sign governed by New York City Zoning Resolution § 52–731. The building owner commenced this Article 78 proceeding to review city environmental control board’s (ECB) determination affirming an administrative law judge’s finding that the advertising sign painted on building violated the City administrative code and zoning resolution. The Supreme Court, Queens County, denied the petition, and the owner appealed.

The ECB noted in its decision that New York City Zoning Resolution § 52–731 expressly set forth a 10–year time restriction for any nonconforming advertising sign such as the sign at issue, which time restriction had long since expired. The court determined that the ECB was within its discretion in rejecting the petitioner’s equitable estoppel argument that the DOB’s issuance of a permit for the sign in 1981 exempted the sign from the time limitation of New York City Zoning Resolution § 52–731 and that it had purchased the subject property in reliance on the validity of the 1981 permit. Here, the court noted that “vested rights cannot be acquired in reliance upon an invalid permit.”  As such, the court found that the ECB had a rational basis for rejecting the petitioner’s contention that the sign was valid. Accordingly, the court affirmed the holding of the Supreme Court, which denied the petition and held that the ECB’s determination had a rational basis.

Astoria Landing v NYC Environmental Control Board, 148 A.D. 3d 1141 (2 Dept. 3/29/2017)

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