Appellate Court Upholds Determination That Nonconforming Use Was Discontinued

Petitioner OTR Media Group (“Petitioner”) applied to the New York Department of Buildings (“DOB”) to register a sign as a nonconforming advertising sign.  DOB denied the application, finding it was a nonconforming use that had been discontinued for more than two years after being replaced by an accessory sign in 1981. This determination was subsequently upheld by a resolution of the Board of Standards and Appeals of the City of New York (“BSA”).  In response, Petitioner brought an Article 78 proceeding against the BSA to annul the resolution.  The trial court denied the petition, and the Petitioner appealed.

The Appellate Division, First Department found that the BSA’s determination was supported by substantial evidence, noting the two-year discontinuance of the nonconforming use. Furthermore, the Court found there was no basis to disturb the BSA’s decision to discredit affidavits submitted by Petitioner, which contradicted the documents submitted in support of the accessory sign application granted by DOB in 1981. Accordingly, since the record showed that the BSA's determination was supported by substantial evidence and had a rational basis, the court held that petitioners were not entitled to a hearing pursuant to CPLR 7804(h).

The case was OTR Media Grp. v. Bd. of Standards & Appeals of City of New York, 35 N.Y.S.3d 76 (1st Dep’t 2016)

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