The opinion of the court was delivered by: Berman, District Judge.
Plaintiff Marathon Outdoor, LLC ("Plaintiff" or "Marathon
Outdoor") commenced this action on or about May 10, 2000 against
Richard C. Visconti, Acting Commissioner, Department of
Buildings of the City of New York (sued herein as "Richard C.
Vesconti"), Rick C. Chandler, Bronx Borough Commissioner, and
the City of New York (collectively, "Defendants"), seeking
declaratory and injunctive relief and damages in relation to the
City's enforcement of § 42-53 and § 43-43 of the New York City
Zoning Resolution ("Zoning Ordinance" or "Zoning Resolution")
which regulate the construction of outdoor
signs. Plaintiff challenges a May 2, 2000 determination of the
New York City Department of Buildings ("DOB") to rescind certain
permits previously granted to Plaintiff for the construction of
a billboard/sign structure at 1542 Boone Avenue in the Bronx.
DOB allegedly rescinded the permits because it determined (1)
that the structure was being used for off-site advertising, in
violation of § 42-53, and (2) that the structure did not comply
with the height and setback requirements of § 43-43.*fn1
Plaintiff claims that if it is required to remove the sign(s) it
has erected, its First Amendment rights to free expression will
have been impermissibly restricted. (Complaint ¶ 3). Plaintiff
challenges § 42-53 and § 43-43 of the Zoning Ordinance on
(U.S.Constitutional) First Amendment and Fourteenth Amendment
grounds, and also claims that these provisions, as applied to
Plaintiff, result in a denial of equal protection in violation
of the Fourteenth Amendment and a taking, in violation of the
On June 16, 2000, Defendants submitted their opposition papers
to Plaintiffs motion for a preliminary injunction. Oral argument
was held on July 5, 2000. For the reasons set forth below,
Plaintiffs motion for a preliminary injunction is denied.
Plaintiff Marathon Outdoor is a New York corporation engaged
in the business of leasing property and erecting "pole signs"
(billboards) for advertising purposes. In June 1999, DOB
approved applications and issued permits to Plaintiff for the
construction of a V-shaped billboard structure along the
Sheridan Expressway in the Bronx.*fn2 Plaintiff submitted
separate applications for each of the two signs it planned to
erect on opposite sides of the billboard, and a third
application for the ground structure on which the signs would be
erected and displayed. Plaintiffs applications [numbers
200447169 and 200447187] requested permission to install two
signs, one on each side of a single structure at the premises.
The applications stated that the signs would be located "within
200 feet of an arterial highway;" that they would be "accessory
business signs" which would read, "Imperial Iron Works Corp."
and that the cost of completion for each sign would be $3,600.
(Chandler Aff. Exs. A, B). DOB approved application 200447187 on
June 2, 1999 and application 200447169 on June 4, 1999.
Plaintiffs third application [number 200447178] covered the
ground structure for the two signs. Application 200447178 stated
that the ground structure would be located within 200 feet of an
arterial highway; that it would be used for an "accessory
business sign," and that it would be completed at a cost of
$50,000. (Id. Ex. C). DOB approved this application on June 4,
1999. In addition to the applications, Plaintiff also submitted
a letter to DOB on May 25, 2000 explaining the accessory use,
i.e. that "Imperial Iron Works has been in operation at this
location since 1982." (Id. Ex. A).
After the applications were approved, Plaintiff entered a ten
year lease under which it is obligated to pay $24,000 per year
for the property on which it planned to erect its billboard
structure. (Compl. ¶¶ 7, 12). Plaintiff subsequently
completed construction of the billboard.*fn3 The completed
billboard contains two separate advertising signs on each side
of the V-shaped structure which combined, occupy 2,400 square
feet. (Def.'s Opp'n Papers at 5).*fn4
On March 27, 2000, DOB notified Plaintiff by letter that
"[t]he approval and permits for the referenced premises will be
revoked in ten (10) days pursuant to Section 27-197 of the
Administrative Code unless additional facts or evidence is
submitted to this office to prove there is conformance to all
laws." (Chandler Aff. Ex. E). DOB explained that "[t]he approval
and permits will be revoked on the basis that the proposed sign
is contrary to Section 43-43 of the NYC Zoning Resolution. The
proposed sign pierces the Sky Exposure Plane."*fn5 (Id).
In its March 27, 2000 letter, DOB also requested proof from
Plaintiff within the same ten day period that the billboard was
in compliance with § 42-53, in that it was "incidental" to a
principal use on the zoning lot.*fn6 According to the
Defendants, DOB believed that the signs were either unrelated to
the principal use of the zoning lot in violation of § 42-53, or
that the principal use of the lot was unauthorized by local
zoning laws. (Chandler Aff. ¶ 78). Plaintiff's counsel responded
to DOB by letter dated April 4, 2000, stating that, "[s]uch
conduct on the part of the Buildings Department is in clear
violation of the constitutional rights of my client and should
you revoke the permit as threatened, I will be compelled to
bring a 1983 action in Federal Court." (Id. Ex. F). Plaintiff
did not, however, submit any evidence to DOB of compliance with
either § 43-43 or § 42-53 within the ten day period specified in
the March 27, 2000 letter. On May 2, 2000, DOB revoked the
permits and issued a stop-work order, prohibiting any further
work on the site. Plaintiff then filed this complaint.
Following the filing of the instant complaint, DOB sent
another letter to Plaintiff, dated May 16, 2000, requesting: (1)
a survey of the property showing the distance
from the property line to the sign pole; (2) documentation
showing compliance with DOB's Operation Policy and Procedure
Notice # 1/97, which requires proof that the business advertised
on a sign is the same business located on the premises if such a
sign is located within 200 feet of an arterial highway; and (3)
a copy of the certificate of occupancy for the premises. (Id.
Ex. H). On May 31, 2000 DOB received from Plaintiff a survey of
the property, dated May 23, 2000, and a copy of Certificate of
Occupancy Number 42891, which had been issued on October 4, 1967
and showed the property to be authorized for use as a parking
lot. (Id. Ex. I). On June 2, 2000, DOB responded to Plaintiffs
submissions, stating that based upon the survey, the sign
structure appeared to be over thirty feet high and within
fifteen feet of the street line, in violation of § 43-43. (Id.
Ex. J). The letter further stated that, "[c]onsequently, either
the sign, including the entire structure, must be moved so that
it is not within 15 feet of the street line or the height must
be reduced to less than 30 feet." (Id.).
At oral argument on July 5, 2000, Plaintiffs counsel stated
(incorrectly): "we built the sign, but there's no copy on it, as
I understand." (Rec. at 21). Defendant submitted a letter to the
Court on July 6, 2000 stating that "based on a DOB inspection on
June 30, 2000, an advertising sign is now being displayed on the
premises that reads `The Cabrio. Drivers Wanted,' with the
Volkswagon trademark." (Horowitz letter 6/30/00 at 2). Defense
counsel also submitted five photographs of the sign structure to
the Court, one of which shows the second sign reading "Imperial
Iron Works Corp." and displaying a phone number and address.
(DOB Special Report at 2). In a letter dated July 7, 2000,
Plaintiff confirmed Defense counsel's allegations that Plaintiff
had "violated" this Court's order to maintain the status quo
until the instant motion had been resolved. The letter admits
that, "[a]s appears from the photographs submitted by Mr.
Horowitz, . . . the billboard does in fact advertise the
business at the location. The obverse side of the sign does
advertise Volkswagon. . . ." (Frost letter 7/7/00 at 3).
Plaintiffs counsel volunteered to remove the Volkswagon sign,
however, stating at oral argument, "I don't think my client
understood what the Court said, that the status quo remains. So
I'll direct him to take it down." (Rec. at 53).
Plaintiff argues generally that § 43-43, through its height
and setback requirements, places impermissible restrictions on
free speech and that "[h]undreds of pole signs near arterial
highways have been constructed throughout the City of New York
over many years and never before the latter part of 1999 has
this section applied to pole signs." (Pl.'s Reply Mem. at 9).
Plaintiff also contends that § 43-43 unfairly discriminates
between various outdoor structures, e.g. by exempting flagpoles,
chimneys, steeples and towers. (Pl.'s Mem. at 5). As to § 42-53,
Plaintiff argues that this Section results in differential
treatment of types of speech based on content, e.g. "a similar
pole sign is permitted for political or charitable purposes."
(Id. at 4). As noted, Plaintiff also contends that enforcement
of both § 43-43 and § 42-53 against it constitutes a denial of
equal protection and a taking in violation of the Fifth
Defendants respond that the Zoning Resolution was amended in
response to a New York State Supreme Court ruling in City of
New York v. Allied Outdoor Advertising, 172 Misc.2d 707,
659 N.Y.S.2d 390 (Sup.Ct. Kings Co. 1997), in which the Court held
that § 42-53 "unconstitutionally favors onsite commercial
advertising over noncommercial messages and permits certain
categories of noncommercial messages while barring others."
Id. at 395. Defendants state that, "[o]n April 8, 1998, the
Zoning Resolution was (substantially) amended as to sign
regulation, to eliminate inter alia, any preference for
commercial over non-commercial speech." (Def.'s Opp'n Papers at
1). Defendants claim
that, although the Zoning Resolution restricts the time, place,
and manner of commercial speech, such restrictions are lawful
means of promoting the public investment in arterial highways,
safe public travel, and natural beauty. (Id. at 2-3).
Defendants also contend that because Plaintiff has not applied
to the New York City Board of Standards and Appeals ("BSA") for
a variance or a waiver, Marathon has not exhausted its
administrative remedies, and its as-applied equal protection and
taking claims are thus, not ripe for adjudication.
By letter dated July 7, 2000, Plaintiffs counsel informed the
Court, "my client would be willing to angle the billboard so
that it would meet the 20 foot requirement under ZR 43-43"
(Frost letter 7/7/00 at 2) and that "early next week an
application will be made to change the group [on the Certificate
of Occupancy] from Parking Lot Group 7 to the appropriate Group
for a Metal Storage Yard." (Id.). In addition, Plaintiffs
counsel stated that, if the Court so ordered, he would direct
Marathon to remove the Volkswagon advertisement.*fn7 (Rec. at
53). Defense counsel responded by letter dated, July 11, 2000,
that Plaintiff has misinterpreted § 43-43 and that angling the
sign would change nothing because "if the structure does not
comply with the minimum setback distances in Section 43-43 (as
in the instant case), then the structure can not exceed a
maximum height of 30 feet." (Horowitz letter 7/11/00 at 1).
Defense counsel also argues in the July 11, 2000 letter that
Plaintiff is incorrect in its assumption that changing a
Certificate of Occupancy is "pro forma." ("The application for a
change of use requires a thorough examination of the Building
Code and Zoning Resolution, which may require further action by
the plaintiff before such an ...