Court Confirms BSA’s 360 Degree Visibility Test

In OTR Media Group, Inc. v. Board of Standards and Appeals of the City of New York, 2015 WL 6510756, (1st Dept. 2015) the Court confirmed the BSA’s denial of the Petitioner’s sign application.

The Appellate Division found that the “arbitrary and capricious” issue raised by petitioners and disposed of by the Court was not an objection that could have terminated the proceeding within the meaning of CPLR 7804(g), and thus the Court reviewed the matter de novo. Upon such review, the Court found that the BSA’s interpretation of New York City Zoning Resolution §42–55 (that an advertising sign is “within view” of an arterial highway if it is discernible, using a 360 degree perspective, by a person located on the highway) is not affected by an error of law or arbitrary and capricious. Further, substantial evidence supported the BSA’s determination that, upon application of the “360 degree standard,” the sign at issue was within view of the arterial highway. Lastly, the Court found that Petitioners failed to preserve their retroactivity argument as they never raised it at the administrative level.

Based on the foregoing, the Order by the Supreme Court, New York County (Eileen A. Rakower, J.), entered February 24, 2014, denied the petition insofar as it claimed that the definition of “within view” employed by respondents was arbitrary and capricious, and it transferred the question of substantial evidence to this Court pursuant to CPLR 7804(g). The petition was unanimously vacated, on the law, and the proceeding was treated as if it had been transferred to the Appellate Division for de novo review pursuant to CPLR 7804(g). Upon such review, BSA’s determination was unanimously confirmed, the petition was denied, and the proceeding brought pursuant to CPLR article 78 was dismissed.

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