Leavitt & Kerson, Forest Hills, NY (Paul E. Kerson of
counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Richard
Dearing, Susan P. Greenberg, and John Moore of counsel), for
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, JOSEPH J.
MALTESE, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
proceeding pursuant to CPLR article 78 to review a
determination of the Environmental Control Board of the City
of New York dated June 28, 2012, which affirmed a
determination of an administrative law judge dated February
6, 2012, made after a hearing, finding that the petitioner
violated Administrative Code of the City of New York §
28-502.2 and, in effect, that the petitioner violated New
York City Zoning Resolution § 22-32, and imposed a
penalty in the total sum of $20, 000, the petitioner appeals
from a judgment of the Supreme Court, Queens County (Agate,
J.), entered December 29, 2014, which denied the petition and
dismissed the proceeding.
that the judgment is affirmed, with costs.
2011, the Department of Buildings of the City of New York
(hereinafter the DOB) issued multiple notices of violation to
the petitioner in connection with an advertising sign
(hereinafter the sign) painted on the wall of the
petitioner's four-story apartment building in Astoria,
Queens. The building, which the petitioner purchased in 1998,
is located in an area zoned as a residential district and has
had the sign on its south wall since 1941, when the DOB's
predecessor issued a permit for it.
to the enactment of certain New York City zoning resolutions,
by 1961, advertising signs such as the one at issue were
prohibited in residential districts, including the area where
the petitioner's building is located. Thus, upon the
enactment of such zoning resolutions, the sign at issue had
become a nonconforming advertising sign governed by New York
City Zoning Resolution § 52-731, which provides that
nonconforming advertising signs in residential districts
"may be continued for ten years after December 15, 1961,
or such later date that such sign becomes non-conforming,
providing that after the expiration of that period such
non-conforming advertising sign shall terminate."
New York City Zoning Resolution § 52-731, in February
1981, the DOB approved the renewal of a permit for the sign.
In 1998, the petitioner purchased the building and continued
to lease the space on the building for the sign.
August 2011, the DOB issued five notices of violation to the
petitioner in connection with the sign. Thereafter, in a
determination dated February 6, 2012, made after a hearing on
the violations, an administrative law judge (hereinafter the
ALJ) sustained two of the five notices of violation. The ALJ
found that the petitioner violated section 28-502.2 of the
Administrative Code of the City of New York by failing to
register as an outdoor advertising company while engaging in
the outdoor advertising business, and, in effect, that the
petitioner violated section 22-32 of the New York City Zoning
Resolution for having an impermissible outdoor advertising
sign in a residential district. The ALJ imposed a penalty in
the sum of $10, 000 for each violation. Thereafter, the
petitioner sought administrative review of the ALJ's
determination by the Environmental Control Board of the City
of New York (hereinafter the ECB). In a determination dated
June 28, 2012, the ECB affirmed the ALJ's determination.
The petitioner then commenced this CPLR article 78 proceeding
to annul the ECB's determination. In a judgment entered
December 29, 2014, the Supreme Court denied the petition and
dismissed the proceeding. We affirm.
applicable standard of review is whether the ECB's
determination " was made in violation of lawful
procedure, was affected by an error of law, was arbitrary and
capricious, or was an abuse of discretion'"
(Matter of Vataksi v Environmental Control Bd., 107
A.D.3d 905, 906, quoting Matter of Morrow v County of
Nassau, 105 A.D.3d 961, 961; see Matter of Ward v
City of Long Beach, 20 N.Y.3d 1042, 1043; Matter of
Halperin v City of New Rochelle, 24 A.D.3d 768, 770).
"Under this standard, courts examine whether the action
taken by the agency has a rational basis and will overturn
that action only where it is taken without sound basis in
reason or regard to the facts, or where it is arbitrary and
capricious" (Matter of Morrow v County of
Nassau, 105 A.D.3d at 961 [citation and internal
quotation marks omitted]). "Moreover, courts must defer
to an administrative agency's rational interpretation of
its own regulations in its area of expertise'"
(id., quoting Matter of Peckham v Calogero,
12 N.Y.3d 424, 431).
the Supreme Court properly determined that the ECB had a
rational basis for rejecting the petitioner's contention
that the sign was valid. The ECB noted that New York City
Zoning Resolution § 52-731 expressly sets forth a
10-year time restriction for any nonconforming advertising
sign such as the sign at issue, which time restriction had
long since expired. The ECB also was within its discretion in
rejecting the petitioner's equitable estoppel argument
that the DOB's issuance of a permit for the sign in 1981
exempted the sign from the time limitation of New York City
Zoning Resolution § 52-731 and that it had purchased the
subject property in reliance on the validity of the 1981
permit. "Vested rights cannot be acquired in reliance
upon an invalid permit. [T]he mistaken or erroneous issuance
of a permit does not estop a municipality from correcting
errors, even where there are harsh results'"
(Matter of Westbury Laundromat, Inc. v Mammina, 62
A.D.3d 888, 890, quoting Matter of Parkview Assoc. v City
of New York, 71 N.Y.2d 274, 282 [citations omitted];
see Town of Southold v Estate of Edson, 78 A.D.3d
816, 817; McGannon v Board of Trustees for Vil. of
Pomona, 239 A.D.2d 392, 393). Here, pursuant to New York
City Zoning Resolution § 52-731, the 1981 permit was
invalid when issued by the DOB. A municipality can vacate a
permit that was invalid when issued (see Matter of
Parkview Assoc. v City of New York, 71 N.Y.2d at
281-282). Since the 1981 permit was invalid, the
petitioner's estoppel contention-that it had purchased
the subject property in 1998 detrimentally relying on the
continuing revenue from the subject advertising sign-fails
(see id. at 282; Matter of Westbury Laundromat,
Inc. v Mammina, 62 A.D.3d at 890).
petitioner has abandoned its challenge to the finding that it
violated Administrative Code § 28-502.2, since it failed
to raise any issue with respect to this finding on appeal
(see Iatauro v St. John's Univ., 295 A.D.2d 478,
478; Blandford Land Clearing Corp. v City of New
York, 275 A.D.2d 436, 436; Agee v Ajar, 154
A.D.2d 569, 571-572).
petitioner's remaining contentions are without merit.
the Supreme Court properly denied the petition and dismissed
the proceeding upon concluding that the ECB's
determination had a rational basis and, thus, was not
illegal, arbitrary and capricious, or an abuse of discretion
(see Matter of Vataksi v Environmental Control