Opinion
2012-03-6
In re CONTEST PROMOTIONS–NY LLC, Petitioner–Respondent, v. NEW YORK CITY DEPARTMENT OF BUILDINGS, etc., et al., Respondents–Appellants.
Michael A. Cardozo, Corporation Counsel, New York (Karen M. Griffin of counsel), for appellant. Gibson, Dunn & Crutcher LLP, New York (Randy M. Mastro of counsel), for respondent.
Michael A. Cardozo, Corporation Counsel, New York (Karen M. Griffin of counsel), for appellant. Gibson, Dunn & Crutcher LLP, New York (Randy M. Mastro of counsel), for respondent.
MAZZARELLI, J.P., FRIEDMAN, ACOSTA, FREEDMAN, ABDUS–SALAAM, JJ.
Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered January 12, 2011, converting this proceeding brought pursuant to CPLR article 78 into a declaratory judgment action, and declaring that signs consistent with petitioner's business model qualify as “accessory” signs under New York City Zoning Resolution (ZR) § 12–10 and that respondents may not reject outright permit applications for such signs on the ground that they do not meet the definition of “accessory use” under ZR § 12–10, unanimously reversed, on the law, without costs, the judgment vacated, the petition denied, and the proceeding dismissed.
Petitioner's failure to exhaust its administrative remedies precludes judicial review of its non-constitutional claims ( see Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821, 385 N.E.2d 560 [1978]; Slater v. Gallman, 38 N.Y.2d 1, 3, 377 N.Y.S.2d 448, 339 N.E.2d 863 [1975]; Young Men's Christian Assn. v. Rochester Pure Waters Dist., 37 N.Y.2d 371, 375, 372 N.Y.S.2d 633, 334 N.E.2d 586 [1975] ). Petitioner did not appeal from what it views as the “final determination” by respondent Department of Buildings (DOB)—letters from DOB written in May and July, 2010—although, in its last letter, DOB expressly advised petitioner to appeal the matter to the Borough Superintendent (or Borough Commissioner) ( see N.Y. City Charter § 645[b][1], [c] ). Sign permit applications that are disapproved by the Borough Commissioner may then be appealed to the Board of Standards and Appeals (N.Y. City Charter § 648; Administrative Code of City of N.Y. § 28–103.4).
As to petitioner's constitutional claims, the first claim is that DOB's refusal to approve petitioner's signs constitutes an unjustifiable, content-based restriction on commercial speech. This claim requires a detailed assessment of the nature, content, and setting of petitioner's model signs, thus presenting a mixed factual and legal question ( see Matter of New York Botanical Garden v. Board of Stds. & Appeals of City of N.Y., 91 N.Y.2d 413, 420, 671 N.Y.S.2d 423, 694 N.E.2d 424 [1998] ). It requires “the resolution of factual issues reviewable at the administrative level” ( see Matter of Schulz v. State, 86 N.Y.2d 225, 232, 630 N.Y.S.2d 978, 654 N.E.2d 1226 [1995], cert. denied 516 U.S. 944, 116 S.Ct. 382, 133 L.Ed.2d 305 [1995]; see also Sumner v. Hogan, 73 A.D.3d 618, 619, 901 N.Y.S.2d 236 [2010]; Siao–Pao v. Travis, 23 A.D.3d 242, 243, 804 N.Y.S.2d 724 [2005] ). Therefore, the claim is barred by petitioner's failure to exhaust its administrative remedies.
Petitioner's second constitutional claim is that ZR § 12–10 is “facially unconstitutional” because it vests DOB with unbridled discretion to determine which signs are accessory. This claim presents a purely legal question that may be resolved by review of the regulatory scheme without regard to the facts, and thus is properly presented for judicial review. Petitioner contends that ZR § 12–10 provides no “objective criteria” by which to define the terms “incidental to” and “customarily found in connection with” contained within the definition of “accessory use.” In view of the detailed criteria set forth in both ZR § 12–10 and the enabling regulations promulgated by DOB, we find that this claim is without merit.