Court Rejects Variance Claim for Billboard As Self-Created Harm

Petitioner Canandaigua National Bank, trustee of the Max M. Farash Declaration of Trust, owned real property in the Town of Gates (“Town”) adjacent to Interstate 390.  Farash had purchased the parcels in 1986, but never developed them. The Trust tried to sell the property in 2009 but the sole offer, from petitioner Expressview Development, Inc., was contingent upon receiving variances from the Town.  Specifically, Expressview wanted to construct billboards visible from the highway, requiring a variance of Gates Code § 190–22(E), which prohibited commercial signs not located on the site of the business for which they advertise.  Expressview sought use and area variances allowing installation of the billboards, but the Town’s Zoning Board of Appeals (“ZBA”) denied the application. Petitioners sought to annul the ZBA determination, arguing the § 190–22(E) was unconstitutional. The lower court dismissed the amended petition-complaint, and petitioners appealed.

On appeal, the Appellate Division, Fourth Department found Petitioners’ main contention, that the ZBA failed to adhere to its precedent, was without merit as petitioners failed to show earlier determinations that were based on essentially the same facts. The Court also found that settlement of a federal lawsuit in 1999 by the Town that permitted installation of certain billboards along the highway by two outdoor advertisers was not a ZBA determination under its administrative variance process.  As such, it was not a ZBA precedent from which departure must be justified.

In addition, the record showed that Farash knew or should have known the extent of the limitations on the property at the time of his purchase, as Farash purchased the property after the approval of the industrial park plan, the adoption of applicable zoning restrictions, and the construction of the highway adjacent to the property. Accordingly, there was substantial evidence to support the ZBA determination that Petitioners hardship was self-created.

Finally, the Court rejected Petitioners’ contention that § 190–22(E) was an unconstitutional restraint on free speech. Using the intermediate scrutiny test for restrictions on commercial speech set forth in Central Hudson Gas & Elec. Corp. v Public Serv. Commn. of N.Y., 447 U.S. 557, 561–566 (1980), the Court found the regulation did not impermissible distinguish between on-site and offsite commercial signs.  Accordingly, the Court modified the order to reinstate the declaratory judgment cause of action and declare the provision constitutional, and affirmed the decision as modified.  

The case was Expressview Development Inc. v. Town of Gates Zoning Bd. Of Appeals, 2017 WL 460597 (4th Dep’t February 3, 2017).

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