Zachary W. Carter, Corporation Counsel, New York (Scott Shorr
of counsel), for appellants.
Schwartz, Brooklyn, for respondent.
Sweeny, J.P., Gesmer, Kern, Singh, JJ.
and judgment (one paper), Supreme Court, New York County
(Alice Schlesinger, J.), entered April 19, 2016, vacating the
decision of respondent NYC Environmental Control Board, dated
September 18, 2014, which upheld the fine against petitioner,
unanimously reversed, on the law, the decision reinstated,
and the proceeding brought pursuant to CPLR article 78,
unanimously dismissed, without costs.
2013, respondent NYC Department of Buildings (DOB) issued a
notice of violation (NOV) to petitioner, the owner of the
property located at 209 Dyckman Street, for displaying on the
building an outdoor advertising sign for
"Kickstart" in a residential district in which such
signs are prohibited under the New York City zoning
resolutions (ZR). In a determination dated February 28, 2014,
made after a hearing on the violation, an administrative law
judge (ALJ) sustained the notice of violation and imposed a
fine, rejecting petitioner's argument that the
advertising sign was a legal nonconforming-use under the ZR
because such a sign had been displayed there since before
1961, without any break exceeding two years.
March 27, 2014, petitioner filed a Zoning Resolution
Determination Form (ZRD1) with DOB's Manhattan Borough
Commissioner seeking a determination as to the legality of
the sign (see New York City Charter § 645[b]),
and on May 27, 2014, the Commissioner denied the application
on the ground that the evidence failed to establish that gaps
in the use of the sign did not exceed two years.
then sought administrative review of the ALJ's
determination by respondent NYC Environmental Control Board
(ECB). In its request, petitioner did not mention the
Commissioner's decision on its ZRD1 application, and DOB
did not file any response to the ECB appeal. While that
appeal was pending, petitioner made a further submission to
the Commissioner, who, on July 31, 2014, reversed his prior
ruling and approved petitioner's request to accept the
sign as a lawful non-conforming use.
decision dated September 18, 2014, ECB affirmed the ALJ's
determination that the sign was illegal. Neither petitioner
nor DOB had informed ECB of the decision on petitioner's
then commenced this article 78 proceeding seeking to annul
ECB's decision. Petitioner contends that ECB acted
arbitrarily and capriciously in concluding that the evidence
was insufficient to establish that the sign was a lawful
pre-existing, non-conforming use, and argues that, despite
the fact that it was outside the administrative record, the
ZRD1 approval should be considered, given great weight, and
applied retroactively to vacate the NOV.
it answered the petition, DOB revoked the ZRD1 approval,
after questioning petitioner about the evidence of continuous
use it had submitted; DOB determined that additional evidence
was required to support a finding of a lawful nonconforming
8, 2015, respondents filed a verified answer, arguing that
the ECB decision was rational, based on the evidence in the
administrative record, that the ZRD1 proceedings should not
be considered in this proceeding challenging the ECB ruling
because they were not part of the record before ECB, and that
the ZRD1 approval had in any event been revoked.
petitioner's further evidentiary submissions, DOB issued
a final ZRD1 determination finding the sign illegal.
issue before the article 78 court was whether ECB's
decision that petitioner had failed to establish its
advertising sign as a lawful pre-existing, non-conforming use
was arbitrary and capricious. However, the court did not
confine its review of ECB's decision to the record
adduced before ECB; citing "common sense" and the
above-recited "factual background, " it considered
the ZRD1 proceedings. The court found that the ZRD1 approval
in effect at the time ECB issued its determination effected
an automatic vacatur of the NOV and the ECB decision, and
concluded that DOB's subsequent determinations revoking
the ZRD1 approval and finding the sign illegal were arbitrary
court found it troubling that DOB did not inform ECB of the
ZRD1 approval in effect at the time the ECB decision was
issued and that DOB took steps following the filing of the
petition to have the ZRD1 approval revoked and the finding
reversed. However, even assuming DOB should have advised ECB
of the ZRD1 approval, the court erred in granting the
petition. There is no basis for the conclusion that the ZRD1
determination had the legal effect of automatically vacating
the NOV. Contrary to petitioner's contention, the ZRD1
approval was not a jurisdictional fact that allowed the court
to review materials outside the administrative record. The
court exceeded its jurisdiction by considering the ZRD1
determination (s ...