Board rejected arguments an exterior building treatment did not qualify as an accessory sign under the Zoning Resolution.On June 16, 2015 the Board of Standards and Appeals voted to uphold a Department of Buildings’ determination that a design treatment on the north face of a parking garage in the Hell’s Kitchen area of Manhattan constituted an accessory sign in violation of local zoning. The design treatment, on the north face of the garage at 332 West 44th Street, incorporated the word “BRAVO!” as part of the design.
On January 7, 2014 the Appellant, EXG 332 W 44 LLC c/o Edison Properties, requested a determination from DOB that the design treatment did not constitute a “sign” as defined by the Zoning Resolution. On January 21, DOB determined the treatment did constitute a sign and reaffirmed the determination on July 3, 2014. On August 1, 2014 Appellant challenged the determination with the Board.
A public meeting was held on December 9, 2014, with continued hearings on March 3, 2015, April 21, 2015, and April 28, 2015. Appellant counsel David Karnovsky of Fried Frank argued ZR §12-10(b) defines a sign as something that “announce[s], direct[s] attention to, or advertise[s]”, and the “BRAVO!” treatment does not announce, direct attention to, or advertise anything other than itself. Mr. Karnovsky also referred to a previous BSA decision finding a reasonable nexus must exist between the installation and something other than the installation itself to qualify as an advertising sign, and the “BRAVO!” treatment fails this reasonable nexus test. Buildings argued the treatment does meet the §12-10(b) definition as it announces, directs attention to, and advertises the parking garage. Buildings also argued the reasonable nexus test is passed because use of the word “bravo” is part of a marketing strategy affiliating the garage with the nearby Theater District using a common theater term to express congratulations, creating a nexus between the sign and the garage. Buildings further argued the “Bravo!” treatment uses the same color scheme and similar typeface as that of the garage’s official “PARKFAST” logo, suggesting the treatment is an extension of the garage’s branding. On January 29, 2015 the Department of City Planning issued a letter to the Board supporting Buildings’ position. The letter argued the treatment did meet each prong of the sign test under ZR §12-10 and stated accepting Appellant’s argument would cause a citywide change in sign regulations absent the necessary public review process for such a change.
On June 16, the Board voted 4-0 to uphold Buildings’ determination. In its finding the Board agreed the similarities between the treatment and the PARKFAST branding were not coincidental, and by evoking the well-established brand, a reasonable nexus existed between the installation and the parking garage satisfying the §12-10(b) definition of “sign”.
BSA: 332 West 44th Street, Manhattan (180-14-A) (Jun. 16, 2015) (Fried Frank Harris Shriver and Jacobson LLP, for EXG 332 W 44 LLC c/o Edison Properties, owner).
By: Michael Twomey (Michael is the CityLaw Fellow and a New York Law School graduate, Class of 2014).