Major Deegan Expressway. Image credit: Crispy1995.
Clear Channel Outdoor installed a monopole on a vacant lot to support two large billboards near the Major Deegan Expressway. In 2009, Clear Channel Outdoor, Inc. installed a double-sided sign structure within view of the Major Deegan Expressway in the Bronx. The monopole structure supported a sign for Clear Channel on one side and a sign for Beringer wines on the other. The premises was vacant other than the monopole sign structure. A building with a roof sign had existed for many years on the premises prior to the erection of the mono pole.
On December 12, 2015, the Department of Buildings served four notices of violation on Clear Channel: two violations were for maintaining prohibited advertising signs at the location, and two violations of the City’s zoning code provision which prohibited advertising signs within 200 feet of an arterial highway.
Clear Channel argued that the signs were accessory signs, not advertising signs, because the signs directed attention to the tenant on the premises, Clear Channel. Clear Channel further argued that its signs constituted a legal non-conforming use because a former roof sign which was permitted in 1938 had been replaced with the current monopole sign structure and the use had not been discontinued for more than two years.
An OATH hearing officer rejected Clear Channel’s arguments, ruling that the signs were advertisings signs and that Clear Channel had failed to establish that the signs had been continuously present at the location without interruption.
The OATH Appeals Board agreed with the hearing officer that the signs were illegal advertising signs and not legal accessory signs. However, the Board reversed the hearing officer’s ruling on the charge relating to proximity to an arterial highway. The Board ruled that because the signs were unpermitted advertising signs at the location, the arterial highway regulation was inapplicable. Only permitted advertising signs that are situated within 200 feet could be in violation. Because the Board found that Clear Channel’s signs were unpermitted advertising signs, this section of the code was inapplicable.
The Board affirmed the other two charges against Clear Channel and imposed civil penalties of $10,000 for each violation, totaling $20,000.
NYC v. Clear Channel Outdoor, Inc., OATH Appeal No. 1701045 (Dec. 14, 2017). CityADMIN
By: Christina Malamut (Christina is a New York Law School Graduate, Class of 2018.)