Dep't of Buildings v. 7 Second Avenue, New York County OATH Index No. 2277/09 (May 22, 2009) Petitioner established that premises is being used for impermissible advertising purposes. Respondents failed to establish a defense of legal non-conforming use. Removal of signs recommended. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF BUILDINGS Petitioner - against - OWNERS AND OCCUPANTS OF 7 SECOND AVENUE, NEW YORK COUNTY Respondents REPORT AND RECOMMENDATION ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge This proceeding was referred to this tribunal pursuant to section 28-503.3 of the New York City Administrative Code. Petitioner, Department of Buildings alleges that respondent owners and occupants at the premises located at 7 Second Avenue, in New York, also known as Block: 456, Lot: 29, 1 erected and maintained advertising signs without obtaining a permit in violation of section 32-60 of the New York City Zoning Resolution ( Zoning Resolution or ZR ) and section 28-105.1 of the Administrative Code, thereby constituting a public nuisance. Petitioner seeks an order of removal (ALJ Ex. 1). At the hearing held on April 29, 2009, petitioner presented the testimony of Steven Chuebon, Senior Supervising Inspector with Special Operations, and Gary Salvatore, the Director of Enforcement Inspections, as well as documentary evidence. Bradley Green Esq., appeared on behalf of the owner and occupants of the premises and opposed the petition. Respondents did not dispute the presence of advertising signs at the premises but contended that such use constitutes a legal non-conforming use since 1959. Respondents presented 1 Some of the documents submitted by respondent refer to lot 34 rather than lot 29. Pursuant to OATH Rule 1-48, and with the consent of the parties, this tribunal took official notice that on the Department s website there is a 1935 certificate of occupancy associated with this address for an accessory building which is part of lot 34 (ALJ Ex. 3).
- 2 - documentary evidence and testimony from Joseph Lorenzo who owned Amber Advertising Inc., an outdoor advertising lease company, since 1985. The record was open until May 5, 2009, for the submission of the 1960 zoning resolution with amendment table, the 1961-1970 zoning resolutions for Commercial District Sign Regulations and Non-Conforming Sign Regulations, the 1946 and 1968 Building Codes, and the 1953 and 1961 zoning maps for the subject property (ALJ Ex. 4). I find that respondents failed to establish a defense of prior nonconforming use and that their use of the premises for the display of advertising signs violates the applicable zoning resolution. Therefore, I recommend removal of the signs. ANALYSIS Under the revised 2008 construction code, a sign having a surface area greater than 200 square feet that is erected, maintained, attached, affixed, painted on, or in any other manner represented on a building or premises in violation of the zoning resolution, the 2008 construction code, the 1968 building code, or any rules adopted pursuant thereto is a public nuisance. Admin. Code 28-503.1. The Commissioner may, after notice and hearing, order the removal of such illegal signs. Admin. Code 28-503.1, 28-503.3. Petitioner submitted documentation to establish that prior to 1961, the premises was located in a business district (ALJ Ex. 3). The current Zoning Resolution, issued in 1961, reclassified the districts into residential, commercial, and manufacturing (ALJ Ex. 3). The property in question is located in a C6-1 zoning district (Pet. Ex. 2). Pursuant to sections 32-62 and 32-63 of the Zoning Resolution, the erection and display of advertising signs is permitted in C6-5, C6-7, C7, and C8 zoning districts only. Additionally pursuant to Zoning Resolution section 32-642, the maximum permissible surface area of a non-illuminated permitted sign in a C6-1 zoning district is 500 square feet. Here, petitioner presented credible evidence from Mr. Chuebon and Mr. Salvatore which established that on four inspection dates, June 5, 2007, May 14, 2008, October 10, 2008, and January 30, 2009, they observed advertising signs, which exceeded 500 square feet, on the building located at 7 Second Avenue, New York County (Pet. Exs. 1, 3, 4, 5; Tr. 8, 19-20). On each inspection there were two signs and the signs changed per inspection. The witnesses further established that respondents lacked permits for the signs in violation of section 28-105.1 of the construction code (Tr. 44-47).
- 3 - Respondents did not dispute the existence of advertising signs or that they exceed 500 feet. Instead, respondents raised a defense of prior nonconforming use. Mr. Lorenzo testified that since 2004 he has had the right to lease the walls of the premises for advertising signs through Amber Advertising (Resp. Ex. A; Tr. 28). Mr. Lorenzo has been a lease man in the outdoor advertising business since 1965 and has worked for a variety of outdoor advertising companies. He first became aware of the presence of outdoor advertising signs at the premises in 1966 when Foster and Kleisser, the company he was working for at the time, had a work order to replace the existing signs (Tr. 27). Mr. Lorenzo has a file for the premises showing sign history going back to 1959. Respondents documentary evidence established that in 1959, a lease was partially executed between the City of New York, the landlord at the time, and General Outdoor Advertising, for the erection of two signs on the south side of the building. Although not clearly legible, its duration appeared to be for the month of April only (Resp. Ex. B). In March 1960, a check request was made for the erection of a chain link fence at 9 Second Avenue (Resp. Ex. C). The document makes reference to Poster Lease No. 29314. Mr. Lorenzo testified that both 7 and 9 Second Avenue were owned by the City. According to him, the reference to a poster lease, affirmatively established the existence of a sign at the premises, because the term referred to a 12 x 25 sign (Tr. 35, 38-39). This same lease number is reflected on other documents that indicated that the premises was leased for advertising signs. On December 23, 1965, a lease was executed between Foster and Kleisser and the New York Society of the Methodist Church, the then owner, for the leasing of the premises for outdoor advertising signs for one year (Resp. Ex. D). On July 14, 1969, Foster and Kleisser issued a work order for the conversion of a sign at the premises from non-illuminated to illuminated (Resp. Ex. E). A December 14, 1970, memo revealed that the premises was condemned by the City and that it sought confirmation that Foster and Kleisser maintained an illuminated sign there (Resp. Ex. F). On May 12, 1971, Foster and Kleisser paid the City rent for three months for Lease No. 29314 (Resp. Ex. G). In December 1972 the City Urban Renewal Management Corp. sent Foster and Kleisser a bill for number 29314 which references the premises (Resp. Ex. H). Respondent also submitted rent bills from March, April, and July 1979 from the City to Foster
- 4 - and Kleisser referencing the premises (Resp. Ex. I). Mr. Lorenzo testified that these bills represent the rent paid to use the premises for outdoor advertising (Tr. 44-47). On February 23, 1981, the City billed for an initial permit filing fee for Lease No. 29314 (Resp. Ex. J). An undated illuminated sign application indicated that there was a structure to allow signage in place prior to 12-23-65 at the premises (Resp. Ex. K). Mr. Lorenzo testified that the document was probably prepared by someone in the lease department but he did not know who, or when the document was prepared, or whether it was ever filed with the Department of Buildings (Tr. 48-51). Mr. Lorenzo acknowledged that he was unaware of a permit ever being issued for the signs (Tr. 68). In March 1998 Mr. Lorenzo signed a work order that a wall poster at the premises be removed and the wall painted (Resp. Ex. L). On July 29, 1998, Mr. Lorenzo requested that the signage be removed so that the landlord could waterproof the wall at the premises (Resp. Ex. M). On December 8, 1977, Transportation Display Inc. ( TDI ), the company Mr. Lorenzo was working for at the time, and the tenant s association of the premises, entered into a lease granting TDI the right to use the premises for outdoor advertising between January 1, 1998, and December 31, 2000 (Resp. Ex. N). On September 8, 2004, Viacom Outdoor Inc. and Amber Advertising Inc. entered a marketing agreement for outdoor advertising at the premises from November 1, 2004, through October 31, 2006 (Resp. Ex. O). The agreement was extended through October 31, 2008 (Resp. Ex. P). Mr. Lorenzo submitted two photographs of the premises showing a one-story high illuminated sign and a three-story high painted wall with a faded sign (Resp. Ex. Q). He testified that based on the cars in one of the photos it appears that they were taken in the 1960 s (Tr. 58-59). Mr. Lorenzo made a claim that from at least 1968 to the present, the premises has always been used for advertising signs except when the landlord refurbished the wall (Tr. 70). A defense of prior nonconforming use is an affirmative one that respondent bears the burden of proving. Town of Ithaca v. Hull, 174 A.D.2d 911, 913 (3d Dep t 1991); Dep t of Buildings v. 120 St. Marks Place, Manhattan, OATH Index No. 648/09 (Apr. 27, 2009). Here, respondents have failed to meet this burden. Section 12-10 of the Zoning Resolution defines a nonconforming use as any lawful use, whether of a building or other structure or of a tract of land, which does not conform to any one or more of the applicable use regulations of the district in which it is located, either on December
- 5-15, 1961 or as a result of any subsequent amendment thereto. To establish a defense of prior nonconforming use, the respondent must show that commercial use of the premises was legal at the time it was established, and that the premises has continued to be used for that purpose since that time without an impermissible change in or interruption of the use for a period of two or more years. Town of Virgil v. Ford, 160 A.D.2d 1073 (3d Dep t 1990); Dep t of Buildings v. 137 Osgood Avenue, OATH Index No. 888/93 (Sept. 23, 1993). The two-year period derives from section 52-61 of the Zoning Resolution, which provides: If, for a continuous period of two years, either the non-conforming use of land with minor improvements is discontinued, or the active operation of substantially all the non-conforming uses in any building or other structure is discontinued, such land or building or other structure shall thereafter be used only for a conforming use. Intent to resume active operations shall not affect the foregoing. Zoning Resolution Art V, ch. 2, para. 52-61 (eff. Dec. 21, 1989). Nonconforming uses are necessarily inconsistent with the established land-use pattern and are generally viewed by the law as detrimental to the zoning scheme. Toys R Us v. Silva, 89 N.Y.2d 411, 417-418 (1996). The overriding public policy of zoning in New York State is aimed at the reasonable restriction and eventual elimination of nonconforming uses. Id. The disfavoring of nonconforming uses was expressly incorporated into the 1961 Zoning Resolution. The purposes of the Zoning Resolution were to encourage the development of desirable residential, commercial, and manufacturing areas with appropriate groupings of compatible and related uses and thus to promote and to protect public health, safety and general welfare. Id. at 418, quoting Zoning Resolution 51-00. The Zoning Resolution s Statement of Legislative Intent reads that [t]he regulations governing non-conforming uses... are therefore adopted in order to provide a gradual remedy for existing undesirable conditions resulting from such incompatible non-conforming uses.... Id. Here, respondents failed to demonstrate that use of the premises for advertising signs was legal at the time it was established and that the premises has continued to be used for that purpose without an impermissible change in or interruption of the use for a period of two or more years. Dep t of Buildings v. 17 Monroe Street, New York Co., OATH Index No. 1586/07 (July 19, 2007).
- 6 - Respondents earliest evidence of signs at the premises was the partially executed lease in 1959 between the City and General Outdoor Advertising (Resp. Ex. B). Even though the premises was located in a business district, the Zoning Resolution in effect in 1959 did not permit advertising signs in business districts. In fact, these restrictions existed since 1940 to the present. See Zoning Resolution and all amendments adopted prior to November 1, 1960, 4(49); 1953 Zoning Map (ALJ Ex. 3). Even though the City leased the walls of the premises to General Outdoor Advertising in 1959 to erect two outdoor signs there, the lessee was still required to comply with the Zoning Resolution in effect at that time. Moreover, even if advertising signs were permitted as-of-right in business districts in 1959, respondents did not prove that the use of the premises for advertising signs was uninterrupted for two or more years. In fact, from the evidence adduced there were gaps between: March 1960 and December 1965; December 1965 and July 1969; December 1972 and March 1979; February 1981 and March 1998; and December 2000, and 2004. With regard to March 1960 and the December 1965 period, Mr. Lorenzo was not involved in the outdoor advertising business during this period and stated that he did not become aware of any signs at the premises until 1966. The undated permit application written by an unknown person stating that there was a sign structure at the premises since before December 23, 1965, is insufficient to conclude that there was no interruption of the use during the preceding five-year period. With regard to the other periods in question, I find Mr. Lorenzo s testimony that as far back as he can remember there were always signs present at the premises unpersuasive. Mr. Lorenzo has a significant financial stake in the continued use of the premises for advertising signs in that he derives an income from the lease of that premises for that purpose (Resp. Ex. A). His statement was therefore self-serving and lacking in sufficient detail upon which to reach a conclusion that there were no interruptions of two or more years in the use of the premises for outdoor advertising signs since 1965. While it is unnecessary to reach the issue of a change in use, I note that the evidence established that in 1969, at least one of the signs was converted from non-illuminated to illuminated in violation of the applicable Zoning Resolution. See ZR 32-644. Moreover, one of the signs was almost doubled in size and went from 12 x 25 to more than 500 square feet. Thus, it is evident that there was an impermissible change in the use as well.
- 7 - Finally, there is no evidence that permits were ever issued for the advertising signs at the premises. Indeed, the property has been subject to violations emanating from the installation of advertising signs on the façade of the building which have been sustained at the Environmental Control Board. See NYC v. Viacom Outdoor, ECB NOV #344-824-44R (Dec. 13, 2005) (Fieber, ALJ) (ALJ Ex. 2). Nor is there evidence that the signs were grandfathered and granted non-conforming use status in 1980. See Zoning Resolution 42-55, 32-662. FINDINGS AND CONCLUSIONS 1. The premises has been used for the display of advertising signs in violation of section 32-60 et. seq. of the New York City Zoning Resolution and section 28-105.1 of the Administrative Code. 2. Respondents did not obtain a permit for the erection and display of outdoor advertising signs, in violation of the construction code. 3. Respondents failed to establish a legal non-conforming use. RECOMMENDATION I recommend that the Commissioner issue an order of removal. May 22, 2009 Alessandra F. Zorgniotti Administrative Law Judge SUBMITTED TO: ROBERT A. LIMANDRI Commissioner APPEARANCES: ALEX J. BERGER, ESQ. SUSAN HUOT, ESQ. Attorneys for Petitioner COHEN HOCHMAN & ALLEN Attorneys for Respondents-Owner/Occupant BY: BRADLEY GREEN, ESQ.