Second Department Holds Environmental Control Board Was Not Estopped from Rejecting Owner’s Contention Regarding Sign Validity

In 2011, the Department of Buildings of the City of New York (“Department”) issued multiple violation notices to Petitioner/Appellant (“Petitioner”) for an advertising sign painted on the wall of Petitioner’s four-story apartment building in Astoria, Queens. The sign was a nonconforming advertising sign governed by New York City Zoning Resolution (“NYCZR”) § 52–731. Petitioner commenced an Article 78 proceeding to review city environmental control board’s (“ECB”) determination affirming an administrative law judge’s (“ALJ”) finding that the advertising sign painted on the building violated the City administrative code and zoning resolution. The Supreme Court, Queens County, denied the petition, and Petitioner appealed.

On appeal, the Second Department reviewed whether the ECB decision “was made in violation of lawful procedure, was affected by an error of law, was arbitrary and capricious, or was an abuse of discretion.”  In its decision, the ECB noted that NYCZR § 52–731 expressly set forth a 10–year time restriction for any nonconforming advertising sign such as the sign at issue, which had long since expired. The Court found that the ECB was thus within its discretion to reject Petitioner’s equitable estoppel argument, which claimed that the Department’s issuance of a sign permit in 1981 exempted the sign from the time limitation in NYCZR § 52–731, and that Petitioner had purchased the subject property in reliance on the validity of the 1981 permit. The Court noted that “vested rights cannot be acquired in reliance upon an invalid permit,” and that such invalidly issued permits can be vacated by a municipality at will.  As such, the Court held that the ECB had a rational basis for its decision, and affirmed the holding of the Supreme Court that denied the petition.

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

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