Matter of Van Dam Specialty & Promotion, Inc. v Board of Standards and Appeals of the City of New York
Attorneys and Parties
Brief Summary
Outdoor advertising/billboards—whether two rooftop signs qualify as lawful nonconforming uses under New York City zoning and DOB rules.
Upheld the Board of Standards and Appeals’ (BSA) affirmance of the Department of Buildings’ (DOB) denials of registration, but annulled BSA’s termination of the uses and allowed the owner to restore the signs to their November 1, 1979 condition.
The Appellate Division reinstated termination for the east-facing sign and, conversely, annulled the denial for the west-facing sign, recognizing it as a lawful nonconforming use.
Termination of the east-facing sign had a rational basis under 1 RCNY 49-16 [DOB must maintain a list of nonconforming signs; if a sign is no longer nonconforming it must be removed] and NYC Zoning Resolution § 42-55(c)(2) [advertising signs not in conformity with standards for nonconforming uses shall terminate]. For the west-facing sign, the BSA acted arbitrarily because the supporting structure was not enlarged; relying on photographs showing variable panel sizes within the same unchanged structure did not rationally prove enlargement.
Background
The property owner purchased a Long Island City building in 1994 with two rooftop advertising billboards (east- and west-facing). A 1940 permit authorized a single large sign (31 feet by 80 feet), but a 1966 inspection referenced multiple "bill boards." The signs were refurbished in 1998 under a DOB permit later revoked in 2011 as issued in error. In 2018, the New York City Department of Buildings (DOB) denied applications to register both signs as legal nonconforming uses, citing apparent post-1979 enlargement based on historical versus contemporary photographs. The Board of Standards and Appeals (BSA) affirmed and terminated the uses without permission to reinstate. The owner commenced a CPLR article 78 proceeding [proceeding to review administrative determinations] challenging the BSA determination.
Lower Court Decision
The Supreme Court, Queens County, held that BSA had a rational basis to find the signs increased in size after November 1, 1979, and thus upheld the denials of registration. However, it annulled BSA’s termination of the uses and permitted the owner to restore both signs to their 1979 condition.
Appellate Division Reversal
Applying the arbitrary-and-capricious standard, the Appellate Division modified. It held that termination of the east-facing sign was consistent with 1 RCNY 49-16 [DOB must maintain a list of nonconforming signs; if a sign is no longer nonconforming it must be removed] and NYC Zoning Resolution § 42-55(c)(2) [advertising signs not in conformity with standards for nonconforming uses shall terminate], and therefore reinstated BSA’s termination and denied restoration for that sign. As to the west-facing sign, the court found the BSA’s conclusion arbitrary: photographic comparisons showed only that the displayed panel at one time did not use the full width of an unchanged supporting structure. Because the structure itself was not enlarged, the west-facing sign retained legal nonconforming status; the court annulled the denial for that sign.
Legal Significance
Clarifies treatment of nonconforming billboard signs in New York City: agencies must distinguish between enlargement of the supporting structure (which jeopardizes nonconforming status) and changes in the size of displayed panels within an unchanged structure. Reinforces removal/termination mandates under 1 RCNY 49-16 and ZR § 42-55(c)(2) when nonconforming status is lost, and confirms the owner’s burden to prove a preexisting nonconforming use with rational, structural evidence.
For NYC billboards, enlargement of the sign structure defeats nonconforming-use protection, but changing the size of ad panels on an unchanged structure does not; agencies must ground termination decisions in rational evidence of structural enlargement.