OTR Media sought to legalize an 11,297-square-foot billboard visible from the Bruckner Expressway. On January 14, 2013, the Department of Buildings issued a Sign Registration Rejection letter denying registration for a sign leased by OTR Media Group. The 79- by 143-foot sign, constructed in 1962, was located at 330 Bruckner Boulevard in the Bronx—35 feet from and within view of the Bruckner Expressway. Buildings based its rejection on a seven-year gap from 1981 to 1988 when the sign was legally used as an accessory sign.
The City’s zoning code prohibits advertising signs within 200 feet of an arterial highway. Non-conforming advertising signs, however, may remain if they were established before June 1, 1968, and the non-conforming use was not discontinued for two years or longer. Accessory signs, which advertise for a business located on the same site as the sign, are conforming and legal. In 1981 Buildings issued a permit legalizing the Bruckner Boulevard sign as an accessory sign for the New York Bus Company, and from 1981 to 1988 the sign displayed messages for the Bus Company.
OTR Media argued that, despite the accessory use permit, the sign was still a non-conforming advertising sign from 1981 to 1988 because the Bus Company did not conduct any operations in the building at that time. In support of this contention, OTR Media submitted multiple affidavits of persons claiming that the Bus Company did not occupy the building.
On appeal, the First Department affirmed the BSA rejection of OTR Media’s application. The appellate court agreed that the 1981–88 period of accessory use constituted a gap during which the non-conforming advertising use ceased. The court agreed with BSA that substantial evidence established that the Bus Company operated on the site. OTR Media’s affidavits, which contradicted the documents in the 1981 accessory use application, were sworn to over 30 years later and were not a sufficient basis to overturn BSA’s determination.
OTR Media Group v. Board of Standards and Appeals, 35 N.Y.S.3d 76 (1st Dep’t July 15, 2016) (Attorneys: Smith, Buss & Jacobs, LLP, Jeffrey D. Buss of counsel, for OTR Media; Zachary W. Carter, Corporation Counsel, Brian T. Horan of counsel, for City).
By: Jonathon Sizemore (Jonathon is the CityLaw Fellow and a New York Law School Graduate, Class of 2016).