The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 58, 59 were read on this motion for CPLR ARTICLE 78 RELIEF. DECISION ORDER ON MOTION Upon the foregoing documents, it is hereby ordered that the instant petition is denied and dismissed, and the subject administrative decision is affirmed. This CPLR Article 78 special proceeding is the culmination of a decade-long intense struggle over whether petitioner Perlbinder Holdings, LLC will be able to maintain an advertising sign on the West Side of Second Avenue, between 36th and 37th Streets, New York, NY, or whether respondent The Board of Standards and Appeals of the City of New York (“BSA”) will be able, eventually, to have it removed. Background Prior to the events here in issue, petitioner, or its predecessor in interest, owned a sign that faced north and was 35-40 feet above ground level, affixed to a building on the west side of Second Avenue (traffic on which flows south, downtown), between 36th and 37th Streets, directly across from the entrance to the heavily trafficked Queens Midtown Tunnel. Although this original sign conformed to the applicable zoning rules when it first went up, the zoning for the subject neighborhood was subsequently changed, in or about the 1980s (apparently 1983), to prohibit all outdoor advertising signs. However, the original sign was “grandparented.” In or about 2008, the subject building was torn down for economic and/or structural reasons, and petitioner applied to construct a “direct replacement” sign. The application was internally inconsistent, and perforce described a different sign. Although the Department of Buildings (“DOB”) originally rejected the application, the then-Manhattan DOB top dog, i.e., Borough Commissioner Santulli, approved it in the following few words: “OK to accept prior sign as grandfathering of existing non-conforming sign. OK to accept lower sign as no increase in degree of non-compliance.” As built, this new sign starkly varied from the original; it was further south on the block, in a different lot, closer to the ground (14-feet above grade), free-standing, two-sided, illuminated, and angled (apparently to make it more visible to drivers and passengers in vehicles emerging from the tunnel). Years of administrative and court proceedings ensued, and the dispute went all the way up to the New York Court of Appeals. In Matter of Perlbinder Holdings v. Srinivasan, 27 NY3d 1 (2016), the Court essentially ratified BSA’s revocation of the permit, finding that “the new sign did not qualify as a grandfathered [sic] replacement.” Id., at 4. However, the Court stated that petitioner could apply to BSA for a “good-faith variance,” on the ground that petitioner had expended hundreds of thousands of dollars to build and maintain the sign on Commissioner Santulli’s (and the overall NYC DOB Commissioner’s) approval. Later that year petitioner submitted such an application, claiming to have relied on Santulli’s approval. Perhaps not surprisingly, the BSA found that petitioner could not have relied, or did not rely, in good faith on said approval because petitioner had submitted contradictory materials to DOB in support of its application, particularly as to the location of the sign. Discussion It is well-settled that in an Article 78 proceeding, the scope of judicial review is limited to the issue of whether the administrative action is rational. Pell v. Board of Educ., 34 NY2d 222, 230-231 (1974). This Court may not disturb respondents’ determination unless there is no rational basis for the exercise of discretion or it was arbitrary and capricious. Id. at 231. “The arbitrary or capricious test chiefly relates to…whether the administrative action is without foundation in fact. Arbitrary action is without sound basis in reason and is generally taken without regard to the facts.” Id. To this Court the 800-pound gorilla in the room is the glaring differences between the original sign and the current sign: location, lot, height, structure, sides, illumination. Other than being on the same block, they are totally, or at least dramatically, different. Whether that difference came about because petitioner’s original application was inconsistent, confusing or incorrect; or whether because Commissioner Santulli simply but obviously erred; or whether because the sign as constructed does not conform to the sign as approved, the simple fact is that petitioner could not in “good faith” have thought that the current sign is a “direct replacement” of the original sign, or that Commissioner Santulli would have considered it a “grandparented” replacement sign had he had clear and correct information. In any event, the BSA conclusion to that effect was rational and based on the evidence before it, rather than having been arbitrary and capricious. This Court first heard in law school the maxim that “People must turn square corners when dealing with the government.” Here, the government has made crystal clear, in the zoning resolution outlawing outdoor signs in this neighborhood, in the numerous administrative decisions, and in the Court of Appeals decision, that the sign is unwanted. Petitioner’s one slim hope was that it could convince the DOB-BSA that it had reasonably relied on a decade-old, clearly erroneous, two-sentence approval. It failed to do so, and this Court may not second-guess that failure. Conclusion The Clerk is hereby directed to enter judgment denying and dismissing the instant petition. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: July 2, 2020
