Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


July 28, 2000


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 DOB allegedly rescinded the permits because it determined (1) that the structure was being used for off-site advertising, in violation of § 42-53, and (2) that the structure did not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 Fifth Amendment.

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.

I. Background

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.

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 Amendment.

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 ยง 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.