Opinion
No. CV-03-0473311 S
April 21, 2004
MEMORANDUM OF DECISION ON PLAINTIFFS' APPEAL
The plaintiffs, Guilford Planning and Zoning Commission and the Town's Zoning Enforcement Officer (ZEO), Regina Ried have appealed the decision of the Guilford Zoning Board of Appeal (ZBA) which approved the appeal to the board by Ceili's Partners Ltd., LLC from an order of the ZEO. The court will set forth the factual background to this matter. On August 16, 2002 the ZEO sent a letter to Ceili Partners which operated Ceili's Irish Pub; the letter directed the pub to remove an Irish flag from the premises because it was an unauthorized sign in violation of Zoning Resolution § 273.60 (the court will set forth the texts of the various pertinent zoning regulations later in this opinion).
Ceili appealed the order of the ZEO contained in the August letter and claimed the Irish flag was not a "sign" as defined in the regulations but a "flag of a nation due the same custom as the flag of the United States of America." A public hearing was held on September 25, 2002 and at that time the ZBA realized that the Ceili appeal had been advertised as an application for a variance. The appeal was therefore denied and the ZBA extended the time for the filing of the appeal without indicating any deadline for doing so. On October 4, 2004 Ceili requested an appeal of the ZEO's order in the August 16 letter. In response the ZEO sent a letter to Ceili dated October 21, 2002 in which she said that the time to appeal the August 16 order had expired. The letter said the following:
Testimony at the September 25, 2002, Zoning Board of Appeals meeting disclosed that the Australian flag was displayed outside your establishment in addition to the Irish and American flags posted on either side of your approved sign. My order stands, you are directed to either remove all flags intended for use for the purposes outlined in § 273-2., (flags defined as signage see § 273-2. Word usage; definitions. SIGN, copy enclosed), or seek variances to get relief from the regulations. If you decide to seek variances, you may want to consider varying the following regulations:
1. § 273-60.C. Projecting and hanging signs, because the projection may be more than two feet from the building.
2. § 273-60.N. Maximum size in one dimension, if the combined signage on the building exceeds eight feet in any one dimension.
3. § 273-62.A. (1) Maximum signage allotted per lot in the Village Commercial District I, because the signage would exceed 48 square feet for the lot.
4. § 273-60.E. Light and motion, because flags flutter in the wind and are moving signs.
The letter, which was very courteous, concluded by supplying Ceili's with a variance application and permitted the flags to remain until December 4, 2004 so Ceili's could apply for a variance. On November 5, 2002 the attorney for Ceili's responded by saying the flags were not signs and the ZEO order was "at odds with (Ceili's) fundamental right to free expression." On November 7 Ceili filed an appeal of the ZEO order and the ZBA held a public hearing on December 4, 2002 to consider the appeal. On December 9, 2002 the ZBA approved the request to appeal the ZEO's order and permitted "the flag of Ireland on the front of the building . . . based on the fact that this is not a commercial flag but a national flag and should be dealt with separately."
The plaintiffs first argue that the decision of the ZBA was unreasonable, arbitrary, and illegal because (1) the ZBA "usurped" the Planning and Zoning Commission's legislative function. (2) The Ceili Irish flag is a sign and thus properly regulated by the Town's zoning regulations and (3) the Irish flag as a sign violates the Town's zoning regulations. Secondly it is argued that the order to remove the Irish flag from Ceili's premises does not violate the first and fourteenth amendments to the federal constitution. Third the plaintiffs maintain that Sections 273-60(E) and 273-2 of the Town's zoning regulations do not act as a prior restraint on Ceili's right of free expression under the previously mentioned federal constitutional amendments.
I
The court will first discuss the issue of whether the flag of the Republic of Ireland is a "sign" and thus properly subject to regulation by the Town. The court will first set forth the pertinent regulations.
The plaintiff Planning and Zoning Commission enacted certain regulations regarding "signs" pursuant to the authority conferred on it under Section 8-2 of the general statutes. That statute says Town zoning commissions are "authorized to regulate," among other things "the height, size, and location of advertising signs and billboards."
Pursuant to that authority the commission passed certain regulations with regard to "signs." In § 273-2 the word "sign" was defined as follows:
"Section 273-2. Word Usage; definitions.
SIGN — Any billboard, illustration, insignia, lettering, picture, display, banner, pennant flag or other device, however made, displayed, painted, printed, supported or attached, intended for use for the purpose of advertisement, announcement, direction, identification, publicity, notice of warning, when located out of doors and visibly [sic.] from any street or from any lot other than the lot on which it is located.
"Section 273-59. Sign Permit; specifications.
No sign may be erected as provided for in this article without a sign permit. Additional requirements, set forth by the Commission, are indicated in the specific subsections.
"Section 273-60. Standards for all districts.
Signs shall conform to the following standards applicable in all districts, unless specified otherwise under specific district subsections . . . CT Page 6284
E. Light and motion. No flashing, intermittent, light-reflecting, revolving or moving signs or continuous strip lighting shall be permitted. (Examples include, but are not limited to, mirrored surfaces, neon lights, pennants, banners and balloons.)
Section 273-62. Marine recreation, commercial and industrial districts.
In addition to the standards specified in ¶¶ 273-59 and 273-60, signs shall conform to the following standards.
A. No portion of any sign that is not attached to a building shall be more than 20 feet above the average level of the ground within a radius of 10 feet, nor shall the area of any such sign exceed 48 square feet. The aggregate total area of all signs on any lot shall not exceed the following:
1. Village Commercial District 1 or Marine Recreation District: 48 square feet in area. For multiple tenancy buildings or lots, the signage area shall be allocated as a percentage of the floor area occupied by the business or enterprise, unless approved otherwise by the Commission.
First it should be noted that in addressing this issue it is not a simple exercise of examining the regulations and determining whether on their face the flag involved here meets the definition of "sign." The plaintiffs explicitly base their right to pass and enforce these regulations, including the sections relating to "signs" on Section 8-2 of the general statutes and rely on no other state statute. In James J.F Loughlin Agency, Inc. v. West Hartford, 166 Conn. 305, 311 (1974), the court made the following observation which would apply to town agencies and officers such as the plaintiffs:
A town acting by its own council, can exercise only the powers which are expressly granted to it by statute or such as are necessary to enable it to discharge the duties and carry out the objections and purposes of its creation . . . Being a creature of the state, the defendant town has no inherent power to modify a legislative act.
As noted Section 8-2 in relevant part gives local zoning commissions the authority to regulate "the height, size, and location of advertising signs and billboards." In this regard Fuller in Volume 9 of the Connecticut Practice Series, "Land Use Law and Practice," § 4.42, page 123, makes the following pertinent observation:
The zoning commission has some discretion in defining what is a "sign" for purposes of the zoning regulations, but will be held to strict construction of the definition considered in the context of the enabling statute, § 8-2, which refers to advertising signs.
In addressing the question before the court important interpretive principles must be kept in mind. In Schwartz v. Planning Zoning Commission, 208 Conn. 146, 153 (1988), the court said "that zoning regulations and ordinances, being in derogation of common law, must be strictly construed and not extended by implication." The court went on to say that . . . "words employed in zoning ordinances are to be interpreted in accord with their natural and usual meaning," id. Why is this so? — in part because "every owner of property located in a town which has adopted zoning is entitled to ascertain with reasonable certainty what uses he (she) may legally make of his (her) property." Lebanon v. Woods, 153 Conn. 182, 191 (1965); also see Melody v. Zoning Board of Appeals, 158 Conn. 516, 521-22 (1969).
Insofar as the common law is a monitor to statutory interpretation as Schwartz suggests, it should also be noted that the state and federal constitution are not the only guarantors of speech and expression. Throughout the common law there is a sensitivity to the right of people in their private lives or business lives to express themselves without fear of common-law suits being filed against them or the state taking action against them. For example, the tort of defamation is limited by the rule in our state that an actionable statement must convey an "objective fact" not a "mere opinion." Daley v. Aetna Life Casualty Co., 249 Conn. 766, 795 (1999). Generally speaking one cannot be held liable for fraud or deceit for a statement of opinion and "misrepresentations as to the future (if outside the control of the speaker) are generally not within the scope of legal fraud and deceit." Conn. Law of Torts, Wright, Fitzgerald, Ankerman, § 138, 142; Prosser Keeton on Torts, 5th ed. § 109. Intentional infliction of emotional distress requires more than ordinary verbal insults. Restatement 2d Torts, § 46, comment (d). It was a common-law principle of statutory interpretation of penal statutes that they were to be construed strictly. Interpreting the ambit of the pre-penal code crime of resisting arrest, the court in State v. Newbauer, 2 Conn. Cir. 169, 171, 174 (1963), held that abusive language directed at an officer does not constitute a crime, "the personal abuse (must) hinder the officer or make his (her) job difficult." Id. p. 174.
Flying the national flag of the land from which one's people came certainly is evidence of a strong remaining attachment to that homeland and is a form of speech or expression.
Using these interpretive principles, can it be said that under the authority of § 8-2 of the general statutes, the zoning regulations could be applied so as to apply to the Irish flag that Ceili's wants to fly in front of its Irish pub? And this is a different question from the question of whether, even if pursuant to the state statute the zoning regulations could be applied to national flags, those regulations were properly applied here to bar the display of the flag. This distinction is important to bear in mind and, for the court at least, disposes of the plaintiff's argument that the ZBA usurped the Planning and Zoning Commission's legislative function. In the plaintiff's brief this argument is set forth as follows:
This type of usurpation (generally found in variance cases) is improper: "Our Supreme Court has held on a number of occasions that when a zoning board of appeals authorizes by variance a use not permitted within the specific zoning regulation, it, in effect, amends that regulation and thereby acts illegally and in abuse of its discretion and authority . . . While this appeal does not involve a variance, the effect of the ZBA's decision is the same. Ceili is permitted to fly a flag — a moving sign and a use which is prohibited in this case by Sections 273-59, 273-60(E), and 273-62(A)(1) of the Zoning Regulations. The ZBA's decision opines that `commercial flags' and `national flags' should be dealt with separately.' R-12; p. 2 and attachment ZBA Business Session minutes, pp. 10-11. The fact is they are not treated separately by the Zoning Regulations, and the power to amend the Regulations to treat them separately — to distinguish between them — rests solely with the Guilford Planning and Zoning Commission. See General Statutes, Section 8-2.
But this case does not involve a variance and perhaps even more to the point the predicate for this argument is the assumption that in fact the Irish flag is a permissible subject of regulation for the Town as authorized by § 8-2 of the general statutes.
But if it is not an "advertising sign" under the statute, the flag cannot be subject to the zoning regulations and there can be no question of usurpation of the zoning commission's legislative function. The zoning commission like the ZBA is a "creature of the state" in the exercise of its powers and it must conform its regulations and actions to that authority given to it by the state by means of legislative enactments such as § 8-2. Certainly the zoning commission cannot usurp the state legislature's authority. If the flag is an "advertising sign" then the question still remains as to whether the regulations support the zoning officer's orders.
The question then remains — is the national flag of Ireland an "advertising sign" located as it was on the premises of Ceili's Irish Pub.
The only appellate case where the court discussed the question of whether something could be considered a "sign" for purposes of local zoning regulations, enacted pursuant to the "advertising sign and billboards" language of § 8-2 of the general statutes, appears to be Schwartz v. Planning and Zoning Commission, 208 Conn. 146 (1988). The court in Schwartz noted that: "The relevant facts are not in dispute. In August 1985 National Shopping Centers, Inc. (NSC) filed an application for a site plan approval to erect a thirty-two-foot-high cylindrical structure with wind activated moving parts made of brushed aluminum entitled `Landmark' at the entrance to the Hamden Plaza shopping area located on Dixwell Avenue in Handen." Id. 147. The zoning commission ultimately denied the application on the following substantive grounds "(1) the structure's purpose is to attract attention, therefore it is indeed a sign according to the regulations, and (2) as a sign, it does not meet the requirements of the (zoning) regulations . . ." Id. p. 148. The trial court dismissed the plaintiff's appeal and there was an appeal of this action which was then transferred to the Supreme Court. The plaintiffs who brought the action were "tenants in common doing business as Hamden Plaza." Id. Page 147. The court based its ruling that "Landmark" was not a "sign" by interpreting article II, § 210 of the zoning regulations of the town but also implicitly on the ambit given to the towns by § 8-2 of the general statutes. At page 154 it said that the commission's "expansive construction of the term `sign' . . . to include structures or objects that are clearly sculptures or works of art, is unsupported by the express language of article II, § 210, of the zoning regulations or the zoning enabling act. General Statutes § 210."
The plaintiffs rely on certain broad language in Schwartz to argue that a flag is a "sign" for § 8-2 purposes and subject to regulation. At page 155 the court said: "In addition, General Statutes § 8-2 bestows upon a local zoning commission only the authority to promulgate regulations with regard to, inter alia, `the height size and location of advertising signs and billboards.' (Emphasis added.) The most relevant definitions of `advertise' in Webster's Ninth New Collegiate Dictionary are `to announce publicly esp[ecially] by a printed notice or a broadcast; [and] to call public attention to esp[ecially] by emphasizing desirable qualities so as to arouse a desire to buy or patronize.' The record before this court is devoid of evidence from which one could find that the mere presence of "Landmark" at the entrance of Hamden Plaza will arouse the desire of passersby to patronize the merchants and services available there."
But the court emphasized two separate words "advertising" and "sign" and they must be considered separately and together. The just quoted expansive language of the court is qualified by and must be read in the context of the discussion on the previous page of the opinion which dealt with the concept of "sign" alone. The court said:
"Further, while `Landmark' is a unique sculpture that will no doubt attract attention to itself, it nevertheless does not attract attention to any `use, product, or activity' as required by § 210. As previously mentioned, `Landmark' is a thirty-two foot tall vertical sculpture made of brushed aluminum. Attached to its central support system are a series of cylindrical circular drums that spin or rotate in response to wind currents. `Landmark' contains no lettering, markings, insignia or other distinguishing features that would direct one's attention to Hamden Plaza as a shopping area, or to any specific use, service or activity being conducted there or to any particular products sold at the Hamden Plaza. Under these circumstances, we find that `Landmark' does not fit within the meaning of a `sign' as it is defined by the Hamden zoning regulations." (And, this court might add, within the meaning of sign used in § 8-2 (GSA; the court was giving a global definition of sign and one based on ordinary usage.)
Id. p. 154.
In analyzing a problem like the one before the court one does not get to the "advertising" question until it is decided that the object in issue is a "sign." A national flag like Ireland's, like our own and like "Landmark" "contains no lettering markings, insignia or other distinguishing features that would direct one's attention" to this pub.
In this regard Kroll v. Steere, 60 Conn. App. 376 (2000), is of interest although it does not approach the problem from the perspective of the proper ambit of zoning regulations under state enabling statutes. In that case a deer hunt with guns, bows and arrows etc. was approved to control the deer population. The Krolls placed a twenty-foot square sign on their house picturing two deer with the words " Who asked the deer?" The issue before the trial court was whether this was a "sign" under the zoning regulations. The appellate court upheld the trial court in the following language at page 382.
"Again, resorting to Webster's New World Dictionary (3d ed.) the court found that `sign' as defined as `a publicly displayed board, placard, etc. bearing information, advertising, a warning, etc.' It is undisputed that the plaintiff wanted to convey a message that killing deer was wrong and she was opposed to it. The word `sign' was not defined in the zoning regulations; therefore it was proper for the court to adopt the ordinary meaning of the word." CT Page 6290
(Emphasis added)
The Random House Dictionary says a sign is ". . . 5. a means of conveying information, as a name, direction, warning, or advertisement that is prominently displayed for public view and that consists of letters, or symbols inscribed or mounted on wood, metal, paper, or material; a traffic sign, a store sign, a danger sign."
A national flag in itself conveys no warning or contains no information or message relating to anything outside itself as being the flag of a nation. Of course a flag qua flag can be a "sign" for the purposes of the Guilford zoning regulations and § 8-2 of the general statutes if it contains a message or wording directly related to the operation of the business on which it is located. See for example Medina v. Town of Watertown, 25 Conn. L. Rptr. 149 (1999), where no question was raised as to the applicability of the zoning regulations to the "flag" in question; the issue was whether the prohibition on the "flag" violated the plaintiff's free speech rights — the flag involved there was a commercial flag containing writing on it — the word "open," as in open for business. Based on the foregoing, the court concludes that a national flag is not a "sign."
But even if the operative words "advertising sign" are considered together and not separately, the court still believes there are difficulties with the plaintiffs' position as to the "advertising" portion of the phrase. The plaintiffs, as noted, rely on the Schwartz reference to the definition of "advertise" in Webster's Ninth New International Dictionary and the broad language of that definition. The plaintiffs argue the Irish flag "certainly advertises the (Ceili's Pub) and announces, by its implicit relationship, that the pub is an Irish pub. It identifies and publicizes Ceili's as a bar where one will find traditional Irish atmosphere and decor representative of Irish pub life. By Ceili's own claims, the public will see the flag as notice that the pub honors the Irish Republic's struggle against British rule. The flag welcomes the Irish people, their friends and sympathizers to visit the Pub for food, drink and like-minded companionship."
However, let us look at the language of Schwartz more closely. Immediately preceding the language broadly defining "advertising," the court says at pp. 154-55: "Section 210 (of town's zoning regulations) specifically exempts from the purview of the definition of a `sign' various forms of noncommercial speech including `any flag or insignia of any government or governmental agency, or of any fraternal civic, charitable, or religious organization.'" (Emphasis by court.) This is perhaps dicta but it is used in support of the court's ultimate conclusion in that case. Apart from the constitutional issues raised by the noncommercial designation, what the word noncommercial means is that something is not concerned with or involved in business which would arguably exclude any object so excluded, like a national flag, from any definition of "advertising sign" as that phrase is used by the legislature in § 8-2 of the general statutes. Furthermore, let us look at the factual setting of Schwartz — how expansive a view of "advertising" does it really espouse. The plaintiffs in Schwartz were tenants in common doing business in the plaza. The Landmark sculpture was not erected in an open field by people, one can assume, who were solely determined to add to the aesthetic qualities of Dixwell Avenue in Hamden. The court noted this 32-foot structure attracted attention to itself, 208 Conn. At page 154 and it was located at the entrance to the Hamden Plaza; the court did not disagree with the commission's finding that the purpose of the sculpture was to attract attention, id. p. 148, to a place where things were sold for a profit. But that did not make this sculpture a sign and it, in itself, did not advertise anything or direct people to any particular activity being conducted in the plaza nor did it direct any one's attention to the plaza as a shopping area — just so, here, the Irish flag did not itself announce an Irish pub and any activity or camaraderie that may occur in such establishments. The court concludes that a national flag cannot be considered an "advertising sign" as that phrase is used in § 8-2 of the general statutes which is the enabling statute for the town's zoning regulations. Therefore the decision of the ZBA can be upheld on this ground alone.
See similar comment in Medina to the effect that the American flag cannot be considered a commercial flag when court discussed issue of whether a moving flag was more distracting to drivers. Town engineer testified commercial flags are more distracting because drivers will try to read message on them.
II
The foregoing conclusion rests on the view of the court that the enabling statute (§ 8-2) under which these zoning regulations were passed does not contemplate that national flags can be included within the statutory term "advertising sign." Thus insofar as the ZBA concluded the Irish flag was "not a commercial flag but a national flag and should be dealt with separately" it was correctly interpreting the state legislative mandate so it cannot be said to have acted illegally, arbitrarily and in a manner that usurped the legislative function of the zoning commission or the ZEO — the latter entities can only operate legally within the ambit defined for them in state legislation.
But leaving aside that conclusion, that is the question of legislative mandate, and concentrating on the zoning regulations themselves and their wording as they relate to the subject of "signs" can the decision of the ZBA be faulted insofar as it concluded the regulations themselves do not allow national flags to be considered as "signs." This requires an examination of the regulations keeping the previously mentioned interpretive principles or observations in mind — (1) zoning regulations must be strictly interpreted because they are in derogation of the common law, (2) words in the regulations must be given their ordinary meaning because people must be able to determine with reasonable certainly local governmental ordinances since it affects their lives, and (3) the common law itself is inclined to favor the free flow of speech and expression. The court will now examine the regulations.
Section 273-2 defines signs and has been set forth previously by the court. The word "flag" is used but is not itself defined so as to include or exclude a national flag as compared to, for example, a "flag" at McDonald's picturing the golden arches and/or inviting people to consume cheeseburgers. Section 273-58(A) says "No signs shall be established, constructed, reconstructed, enlarged, extended, moved or structurally altered except in accordance with this article" — that's the universe in regards to "signs" and any "flag" that might be included within the definition of "sign" but it is of no definitional help.
Section 273-59 does not assist the plaintiffs. It says, "No sign may be erected as provided for in this article without a sign permit." It would be assuming the conclusion sought to be reached if it were to be held that this language includes national flags. Subsection C of this same section speaks globally of "measurements" for "signs." It says:
C. Measurements. All dimensions for signs shall be based on measurements to the outside edge of the sign, excluding any structure necessary to support the sign. The area of signs shall be computed from either the outer dimensions of the frame or as the area of a quadrilateral, including the outer edges of all lettering, whichever is greater. CT Page 6293
(Emphasis added.)
The language is not "any" lettering, the word is all lettering — the regulation seems to assume "signs" and "flags" within the definition are devices with verbal communication relating to a particular business, its products, services, and hours of operation. National flags typically do not have lettering.
It is true that subsection H excludes from regulatory requirements "flags, pennants and insignia placed by a governmental unit" and governmental units typically fly the state and American and state flags so why was it found necessary to exclude the latter when they are placed by governmental units if national (or state) flags were not meant to be included in the regulation's definition of signs? On the other hand "flag" is not defined in this subsection.
But the language of these regulations is not always exact. Thus § 273-60, Standards for all Districts, has a subsection B which the ZEO in part relied on in her October 21, 2002 letter requesting all flags — American, Australian and Irish — be removed from the premises. That subsection says:
E. Light and motion. No flashing, intermittent, light reflecting, revolving or moving signs or continuous strip lighting shall be permitted (examples include, but are not limited to, mirrored surfaces, neon lights, pennants, banners, and balloons).
"Flags" are not mentioned. Also it would appear that the purpose of such a regulation would be to prevent the use of light advertising in residential neighborhoods which could be quite distracting. Indeed any moving banner or pennant could along with flashing lights be distracting to traffic. In this regard the court in Medina supra made an interesting observation, however, reflecting on the basis for such regulations as that set forth in subsection B which in turn offers insight as to the meaning that should be given in general to the language of regulations using the word "sign" or "flag." In Medina the plaintiff was prevented from hanging a flag with the word "open" on it in front of her store. The town put on a town traffic engineer to offer a reason why prohibitions are necessary on commercial flags. The court made the following observations about his testimony"
Although Deleppo did testify at one point that an American flag could cause the same type of distraction as a commercial flag, a review of his entire testimony shows that he believes that commercial flags pose a greater danger than governmental flags because drivers spend more time looking at commercial flags as they try to read the message on the flag.
In other words "flags" can be "signs" but not all "flags" are necessarily "signs" if the latter word is to have an intelligible meaning. Given the foregoing, even from an examination of the regulations themselves the court cannot say that the ZBA's decision should be overturned. The burden is of course on the plaintiffs to show the board acted in error although the board's decision and interpretation of the regulations should be overturned if it is found to be unreasonable, arbitrary or illegal. Raymond v. Zoning Board of Appeals, 76 Conn. App. 222, 228-29 (2003). But it must also be kept in mind that a zoning board is entrusted "to decide within prescribed limits and consistent with the exercise of (its) legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply." Munroe v. Zoning Board of Appeals, 75 Conn. App. 796, 801 (2003). However, a "court is not bound by the legal interpretation of the ordinance by the (board) . . . the court determines legislative intent from the language used in the regulations." Northeast Parking, Inc. v. Planning Zoning Commission, 47 Conn. App. 284, 293 (1998). Here the court agrees with the ZBA's interpretation of the regulations, cannot say that body's interpretation was unreasonable. Furthermore, in the exercise of its own interpretative role the Board should be attentive to the language of § 8-2 C.G.S.A. which the court believes requires that these zoning regulations not be interpreted in such a way as to raise serious questions about their compliance and conformity to this state enabling statute.
III
The foregoing is sufficient at least in the court's view to uphold the decision of the ZBA and dismiss the appeal. However, in the interest of completeness, the court will discuss the special defense raised by Ceili that application of the zoning regulations so as to prohibit the display of the flag of the Republic of Ireland violates the First and Fourteenth Amendments to the federal constitution by impermissibly restricting Ceili's right to freedom of expression. The court will now try to discuss the questions involved when such a claim is raised.
The first issue to be addressed is whether the flying of this flag was speech entitled to constitutional protection. The plaintiffs appear to concede at least this much (see page 16 of brief). In Spence v. Washington, 418 U.S. 405, 410 (1973), speaking of the display of the American flag with a superimposed peace symbol, the court said "The court for decades had recognized the communicative connotations of the use of flags . . . In many of their uses flags are a form of symbolism compromising a `primitive but effective way of communicating ideas . . .' and `a short cut from mind to mind.'" Constitutional protection cannot and is not, because we are a free country, limited to displays of the American flag. Constitutional protection for example has been extended to the flying of the red flag. See Stromberg v. California, 283 U.S. 359, 368-70 (1930). Mr. Geoffrey Pothin who spoke for Ceili's at the hearing before the board claimed his flying of the Irish flag at the pub was an exercise in free speech and the court agrees that the flying of this flag was a form of expression entitled to a level of protection under the constitution.
But the level of protection depends on whether the speech or expression sought to be barred or regulated is commercial or noncommercial speech. Commercial speech is even protected under the constitution but it is not entitled to the same level of protection as noncommercial speech. U.S. v. Edge Broadcasting Co., 509 U.S. 418, 426 (1993). Can the flying of this flag in the context of where it was flown be said to be commercial speech? At the Board hearing Mr. Pothin said the flag as such does not advertise anything but "is a personal expression of national identity and relationship." In his earlier response to the ZEO's August 16, 2002 letter ordering that the flag be removed Pothin reiterated these feelings and added "(the flag) is not just commercial speech. It is a message of deep felt ancestral identity." At the September hearing Ceili's lawyer said Mr. Pothin was flying the flag because "he has a special ancestral identity that he feels patriotism, he feels a special kinship to a sister nation."
As counsel for the Board points out commercial speech is "speech that proposes a commercial transaction." Board of Trustees, State University of New York v. Fox, 492 U.S. 469, 483 (1988) (emphasis by court). Also see Central Hudson Gas Co. v. Public Service Commission, 447 U.S. 557, 561 (1979), defined commercial speech as "expression related solely to the economic interests of the speaker and its audience."
There is nothing in the record that would allow the court to doubt the sincerity of Mr. Pothin's assertion that this flag was being flown not for a commercial purpose but as a deeply held attachment to his ancestral homeland Furthermore on the question of whether commercial speech is involved here the court does not believe much mileage can be gained for saying commercial speech is involved by the reference in Pothin's letter response to the ZEO's August 16, 2002 letter to the effect that the flag "is not just commercial speech" and the fact that the flag does fly in front of a pub, a commercial establishment. In Bland v. Fessler, 88 F.3d 729, 738 (CA. 9, 1996), the court said: "Communication that ` does no more than propose a commercial transaction' is commercial speech," (emphasis by this court). Thus the mere fact that what is noncommercial speech appears in a or is related to a commercial context does not transform the noncommercial speech into commercial speech. Cf. Pittsburgh Press Co. v. Human Relations Commission, 413 U.S. 376, 384-85 (1972). (On this question also see discussion in Section I of this decision regarding "advertising.")
Even though speech is noncommercial it can be regulated by state or local government enforcing such things as zoning regulations. The degree of regulation depends on whether what is sought to be enforced is content neutral. The court has renewed these zoning regulations and they are content neutral and applied as such even if only upon an afterthought — see orders in this case not to display the American or Australian flags in second October 21, 2002 letter from ZEO. In Phillips v. Borough of Keyport, 107 F.3d 164, 172 (CA 3, 1977) (enforcement of zoning, land use ordinances), the court said: "state regulations of speech that are not regarded as content neutral will be sustained only if they are shown to serve a compelling state interest in a manner which involves the least possible burden on expression. Regulations of speech that are regarded as content neutral, however, receive `intermediate' rather than `exacting' or `strict' scrutiny." See generally 16A Am.Jur.2d, "Constitutional Law," §§ 459, 460 pp. 460 et seq., on content neutral regulations and tests to be applied to content-based and content-neutral regulations. What is "intermediate scrutiny?" It has been articulated in another Third Circuit case, Mitchell v. Commission on Adult Entertainment Establishments, 10 F.3d 123, 130 (CA 3, 1993):
Reasonable time, place and manner regulations of protected speech are valid if (1) they are justified without reference to the content of the regulated speech; (2) they are narrowly tailored to serve a significant or substantial government interest; and (3) they leave open ample alternative channels of communication.
See also Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1983).
Philips approving and commenting on this language at 107 F.3d pp. 172-73 says:
Thus, when a legislative body acts to regulate speech, it has the burden, when challenged of showing either (1) that its action serves a compelling state interest which cannot be served in a less compelling way or (2) that its action serves a substantial content — neutral, state interest, is narrowly tailored to further that substantial state interest, and leaves adequate alternative channels for the regulated speech.
The burden is on the governmental authority to establish the constitutional propriety of the regulation. It also should be added to all this as noted in § 460 at p. 463 of the 16A Am.Jur.2d article that: ". . . even if the government may constitutionally impose content-neutral prohibitions on a particular manner of speech, it may not condition that speech on obtaining a license or permit from a government official in that official's boundless discretion." See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988).
The court believes that these regulations do not pass constitutional muster under these tests especially if they are interpreted to apply to this Irish flag. As the Board's brief points out the plaintiffs turn to § 273-60A of the regulations for "the requisite `significant governmental interest' served by the allegedly applicable restrictions contained in §§ 273-2 and 273-60E." In § 273-60A the purposes of the town's sign regulations are spelled out:
CT Page 6298 (1) Encourage the effective use of signs as a means of communication in the Town.
(2) Maintain and enhance the aesthetic environment and the town's ability to attract sources of economic development and growth.
(3) Improve pedestrian traffic and safety.
(4) Minimize the possible adverse effort of signs on nearby public property and private property values.
(5) Enable fair and consistent enforcement of these sign restrictions.
If these are the objectives in mind it is difficult to say that the regulations are narrowly drawn or tailored to meet them in a way that is sensitive to free expression rights under the first amendment.
The requirements of the zoning standards are not applied to flags, pennants and insignia placed by a governmental unit or nonprofit organization, § 273-59H. They can apparently fly the American or state flag while private businesses may not be able to do so. Can private homes fly any national flag including ours — are traffic and pedestrian safety concerns different as to flags for homes or government buildings? Is there a different effect on property values of adjacent buildings? When it comes to that why should a government entity be given the right to fly the American or state flag, or for that matter any national flag it desires, while a private citizen cannot fly the flag of the land from whence he or his people came in front of his business? The constitution does not appear to countenance such distinctions. Cf. Stromberg v. California, supra. Furthermore, governmental or nonprofit buildings would be able to fly flags with printing or lettering on them — moving signs by the ZEO's criterion under section E and more distracting to motorists than a national flag like Ireland's which has no lettering.
Section 273-60H allows "informational" signs with writing on them such as "open," "closed," hours of operation — but again see comments of traffic engineer in Medina v. Town of Watertown, supra, which were previously referred to by the court as to the distracting nature of such lettered flags.
So-called temporary signs discussed in § 273-601, J, K and L are apparently exempt from the light and motion requirements of § 273-60E for no ascertainable reason associated with the overall purposes of sign regulation set forth in § 273-60A. Such signs would include, as the Ceili brief notes governmental signs, political signs and even some commercial signs. Temporary signs can be as distracting as any other signs subject to regulation and not regarded as temporary. Subsection (2) of § 273-60I allows the ZEO to even waive the requirement for a written application for a temporary sign apparently in her unfettered discretion. Sections J, K, and M discuss types of temporary signs and their permitted duration as to various types of uses but the whole universe of what might be a "temporary" sign is not covered by the regulations and no definition of what "temporary" means is otherwise set forth; that, one would suppose is left to the absolute discretion of the ZEO.
These regulations seem so vague and overbroad that the third factor set forth in the Third Circuit cases of Mitchell v. Commission on Adult Entertainment, supra, and Philips v. Borough of Keyport, supra, perhaps need not be reached — are there adequate alternative channels for the regulated speech. Why should the citizen under the First Amendment be required to consider alternative means of expression when it is only vague or otherwise flawed regulations that force this option? In any event the suggestion is made that Ceili could paint the flag of the Republic of Ireland on its pub or display it inside the pub as an alternative to what it is barred from doing now.
In the court's view this will not suffice as an adequate alternative for Ceili's and Mr. Pothin. Mr. Pothin has always maintained that he flew this flag on a flagpole outside the establishment as an expression of ancestral and patriotic pride in the land where his people came from. His position is that the flag was not flown just to enhance the business of the pub. Given these strong feelings, which are entitled to constitutional recognition, why should the man be forced to display this flag in the ways suggested — painting it on the building, displaying it inside where business is conducted — actions which would only serve to convey the impression that the flag was displayed solely in conjunction with a profit or business motive. Why should he not have the right to announce his Irish identity and pride to the world at large and why should he be constricted to a more limited display directed at the patrons of Ceili's or prospective patrons? To the court at least the questions provide the answer.
The decision of the ZBA is upheld and the plaintiffs' appeal is dismissed.
The court finds no need to enter the labyrinth of prior restraint law. Certainly towns have the right to impose reasonable restrictions as to the time, manner and location of signs by means of zoning regulations. Cf. Burns v. Barrett, 212 Conn. 176, 192-93 (1989). But this must be done by content-neutral regulations and where non-commercial speech is concerned, as previously discussed, the regulations must be narrowly drawn to achieve their end and provide for alternative means of communication. Also regulations must not give the zoning official boundless discretion as to their enforcement.
The burden is on the government to prove that these latter requirements are met. With this proviso an adequate balance is established between the right of the towns to regulate and the right of the people to express themselves.
What does trouble the court, however, although the decision is not based on this, is the supposition that even if these regulations were found to be facially valid where non-commercial expression is involved, they can be used to stifle that expression by their own verbiage concerning goals of traffic and pedestrian safely, property value protection etc. If noncommercial expression is involved and the government entity has the burden of proving the regulations are narrowly tailored to accomplish appropriate governmental purposes should not the town also have the burden of proving that in any particular case there is a real issue of traffic safety or a threat to property values by testimony or reports from the town traffic engineer or appraisers? Can the regulatory scheme be interpreted as giving prima facie validity to the propriety of the ZEO's application of them, requiring the party affected to prove in a case such as this that in fact no safety or property value issues are presented? Would this burden shifting present prior restraint problems in license and permit situations involving noncommercial speech? Here the court does not have to resolve these issues.
Corradino, J.