IN RE: 149 FIFTH AVENUE CORP.

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Supreme Court, Appellate Division, First Department, New York.

IN RE: 149 FIFTH AVENUE CORP., Petitioner-Respondent, v. James CHIN, et al., Respondents-Appellants.

Decided: May 13, 2003

BUCKLEY, P.J., ANDRIAS, SAXE, LERNER, and MARLOW, JJ. Howard S. Weiss, for Petitioner-Respondent. Drake A. Colley, for Respondents-Appellants.

Judgment, Supreme Court, New York County (Edward Lehner, J.), entered March 26, 2002, which granted the application pursuant to CPLR article 78 to annul the determination by respondent New York City Board of Standards and Appeals (BSA), dated August 7, 2001, that petitioner's nonconforming use had been discontinued, unanimously affirmed, without costs.

The evidence of record shows that, as early as 1923, a large advertising sign was painted on the north facade of the building now owned by petitioner located at 149 Fifth Avenue.   The sign remained on the building facade for decades and although its continued presence was not consistent with a subsequently enacted zoning resolution, the sign was permitted to remain as a protected nonconforming use.   Respondent BSA, however, held herein the protection accorded the sign forfeited by reason of the sign's removal for some 27 months, commencing in August 1996, to permit legally mandated building facade inspections and repairs.   While, pursuant to Zoning Resolution § 52-61, discontinuance of a nonconforming use for a continuous period of two years may operate to strip the use of previously afforded protection, we hold that the Resolution may not be reasonably read to authorize termination of petitioner's protected nonconforming use under the particular circumstances presented.   Where, as here, interruption of a protected nonconforming use is compelled by legally mandated, duly permitted and diligently completed repairs, the nonconforming use may not be deemed to have been “discontinued” within the meaning of Zoning Resolution § 52-61 (see Matter of Hoffman v. Bd. of Zoning & Appeals, 155 A.D.2d 600, 547 N.Y.S.2d 657, lv. denied 75 N.Y.2d 708, 555 N.Y.S.2d 691, 554 N.E.2d 1279).   A contrary reading of the subject Zoning Resolution, to permit or, indeed, require the termination of a valuable property interest, even where such termination is triggered solely by the owner's need temporarily to cease the nonconforming use in order to satisfy a legal mandate, would raise a most serious question as to whether the Zoning Resolution purports to authorize an unconstitutional taking.