Opinion
6803 Index 157348/16
06-07-2018
In re SKYHIGH MURALS–COLOSSAL MEDIA INC., etc., Petitioner–Respondent, v. BOARD OF STANDARDS AND APPEALS OF the CITY OF NEW YORK, Respondent–Appellant.
Zachary W. Carter, Corporation Counsel, New York (Qian Julie Wang of counsel), for appellant. Akerman, LLP, New York (Richard G. Leland of counsel), for respondent.
Zachary W. Carter, Corporation Counsel, New York (Qian Julie Wang of counsel), for appellant.
Akerman, LLP, New York (Richard G. Leland of counsel), for respondent.
Manzanet–Daniels, J.P., Tom, Andrias, Kapnick, Singh, JJ.
Judgment (denominated decision and order), Supreme Court, New York County (Arthur F. Engoron, J.), entered January 17, 2017, annulling a determination of respondent (BSA), dated May 17, 2016, which affirmed the New York City Department of Buildings' (DOB) denial of petitioner's application to install an advertising sign, and permitting petitioner to install the proposed sign, unanimously reversed, on the law, without costs, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed.
BSA's determination that DOB properly denied petitioner's application to install an advertising sign has a rational basis and is supported by substantial evidence (see generally Matter of SoHo Alliance v. New York City Bd. of Stds. & Appeals, 95 N.Y.2d 437, 440, 718 N.Y.S.2d 261, 741 N.E.2d 106 [2000] ; Matter of Toys "R" Us v. Silva, 89 N.Y.2d 411, 418, 654 N.Y.S.2d 100, 676 N.E.2d 862 [1996] ). BSA rationally found that the proposed sign was prohibited by New York City Zoning Resolution § 42–561 in light of its location within 100 feet of the boundary of a Special Mixed Use District superimposed on a Residence District. The court erred in treating the adjoining district solely as a Special Mixed Use District rather than a Residence District on the basis of the statutory definitions of these districts, i.e., that they are designated "MX" and "R," respectively. The 1997 resolution of the City Planning Commission of the New York City Department of City Planning that created the first Special Mixed Use District indicates that restrictions governing Residence Districts may apply to Special Mixed Use Districts, depending on the particular regulations at issue. The court should have deferred to BSA's determination instead of applying a de novo standard of review, since this case called for BSA to apply its expertise in zoning and land planning matters to regulations that are not entirely clear and unambiguous when read as a whole (see Matter of Beekman Hill Assn. v. Chin, 274 A.D.2d 161, 167, 712 N.Y.S.2d 471 [1st Dept. 2000], lv denied 95 N.Y.2d 767, 719 N.Y.S.2d 647, 742 N.E.2d 123 [2000] ; Matter of New York Botanical Garden v. Board of Stds. & Appeals of City of N.Y., 91 N.Y.2d 413, 419, 671 N.Y.S.2d 423, 694 N.E.2d 424 [1998] ; cf. Matter of Raritan Dev. Corp. v. Silva, 91 N.Y.2d 98, 667 N.Y.S.2d 327, 689 N.E.2d 1373 [1997] [no deference owed to agency interpretation contrary to plain meaning of statutory language] ).