Opinion
FBTCV186078346S
10-20-2019
HIGHLAND STREET ASSOCIATES et al. v. The Honorable James P. REDECKER, Commissioner of Transportation et al.
UNPUBLISHED OPINION
Filed Date October 21, 2019
Alfred J. Jennings, Jr., Judge Trial Referee.
Procedural/Factual Background
This is a declaratory judgment action commenced pursuant to Conn. Gen. Stat. § 4-176 brought by the plaintiffs against the Connecticut Department of Transportation and its Commissioner (at the time this action was commenced) James P. Redecker. The background is that the plaintiff Highland Street Associates ("Highland") is the owner of a piece of real property located at 215 Webster Street in the city of Bridgeport (the "Property") located in close proximity to and south of Interstate 95. The plaintiff Barrett Outdoor Communications, Inc. ("Barrett") is and has been for some time under a long-term agreement with Highland to operate and maintain a certain elevated lighted outdoor sign (sometimes called a "billboard") and the structure supporting the sign (collectively, the "Sign" or "billboard") located at the Property, pursuant to a Permit No. 9841 issued to Barrett by the State of Connecticut Department of Transportation ("DOT"). The Sign consists of two "faces" each being a panel of 900 square feet facing generally toward Interstate 95 upon which advertisements or messages are displayed, and periodically changed. The two faces are supported by multi-element "trestle support" structures, The Property is located in a Residential- Two- and Three-Family Zone (R-BB) of the City of Bridgeport where signs of this nature are not permitted uses, but the City of Bridgeport has recognized the sign as valid nonconforming use in a residential zone. Similarly, the DOT recognizes the Sign as a nonconforming grandfathered sign under Section 13a-123-12 of the Regulations of Connecticut State Agencies and 23 C.F.R. § 750.707. On November 21, 2017 Barrett submitted an application to DOT for an Outdoor Advertising Permit, seeking to rebuild the Sign, replacing the existing support structure with a new "monopole" support structure. DOT denied that application by letter of January 5, 2018 for the reasons that (1) the permit "cannot be issued at this location as the proposed site is in conflict with Section 13a-123-5 of the regulations of Connecticut State Agencies, which requires that signs located adjacent to Interstate Highways be located within an area that is zoned industrial or commercial." and (2) "The existing sign under Permit #9481 does have nonconforming status and will be allowed to be maintained and continued pursuant to Section 13a-123-12 of the Regulations of Connecticut State Agencies and 23 C.F.R. § 750.707. However, to maintain nonconforming status, a billboard structure must remain ‘substantially the same.’ Anything beyond customary maintenance and repair, such as the replacement of the sign with a new structure, is not permissible under Federal and State law."
The plaintiff Barrett by letter of January 22, 2018 requested that DOT reconsider its denial of Barrett’s application for permit. On February 9, 2018 DOT responded by saying it had "reviewed the mater and reaffirms denial [of the requested permit] for the same two reasons cited in its January 5, 2018 denial letter, and also cited the case of Billboards Divinity v. Commissioner of Transportation, 133 Conn.App. 405 (2012), described therein as a case where "... the denial of an application similar to your client’s circumstances was upheld. The Connecticut Appellate Court (Robinson, J.) defined ‘maintenance and repair’ to mean ‘actions taken to perpetuate or restore a presently existing sign (emphasis added). Your client is seeking to remove the existing sign structure and replace it with an entirely new structure. As state and federal laws prohibit the erection of a new outdoor advertising structure at this location, your client’s application for a permit remains denied."
On April 11, 2018 petitioner Barrett filed pursuant to Conn. Gen. Stat. § 4-176 a Petition for Declaratory Rulings that:
(a) Consistent with customary maintenance, the support structure of a grandfathered legally nonconforming outdoor advertising sign can be replaced to allow the sign structure and sign face to continue to exist safely and in good repair;
(b) Where the support structure of such a sign consists of multiple support elements, it can be replaced with a monopole structure that would be safer, less visually obtrusive and distracting, and occupy less area by volume and footprint on the ground than the existing structure, consistent with customary maintenance and also to reduce nonconformity; and to continue and maintain the use and structure unless and until discontinued or abandoned by the landowner.
(c) The owner of land on which a grandfathered, nonconforming outdoor advertising sign exists possesses a vested property right in and to that nonconformity and is entitled to a permit to continue and maintain the use and structure unless and until discontinued or abandoned by the landowner.
Pursuant to Conn. Gen. Stat. § 4-176(e), "Within 60 days after receipt of a petition for a declaratory ruling, an agency in writing shall: (1) Issue a ruling declaring the validity of a regulation or the applicability of the provision of the general statutes, the regulation, or the final decision in question to the specified circumstances, (2) order the matter set for specified proceedings, (3) agree to issue a declaratory ruling by a specified date, (4) decide not to issue a declaratory ruling and initiate regulation-making proceedings, under section 4-168, on the subject, or (5) decide not to issue a declaratory ruling, stating the reason for its action." Section 4-176(i) further provides: "If an agency does not issue a declaratory ruling within one hundred eighty days after the filing of a petition therefor, or within such longer period as may be agreed by the parties, the agency shall be deemed to have decided not to issue such ruling." And Section 4-175 provides: "If a provision of the general statutes, a regulation or a final decision, or a threatened application, interferes with or impairs, threatens to interfere with or impair, the legal rights or privileges of the plaintiff, and if an agency (1) does not take an action required by subdivision (1), (2) or (3) of subsection (e) of section 4-176 within sixty days of the filing of petition for a declaratory ruling, ... the plaintiff may seek in the Superior Court a declaratory judgment as to the validity of the regulation in question, or the applicability of the provision of the general statutes, the regulation, or the final decision in question to specified circumstances."
The plaintiff in this case alleges in the complaint, and the defendants DOT and the Commissioner admit in their Answer, that "To date [August 24, 2018, the date of plaintiff’s Complaint which was more than sixty days from the filing of Plaintiff’s Petition for Declaratory Ruling on April 11, 2018] the defendants have failed, neglected, and/or refused to take any action required by subsection (1), (2) or (3) of subsection (e) of Section 4-176 of the General Statutes with respect to the Petition." Consequently, the plaintiff has commenced this civil action in the Superior Court seeking a three-part declaratory judgment which exactly mirrors the three-part Petition for Declaratory Rulings filed with the DOT on April 11, 2018, quoted above at page 3. Both parties have now moved for summary judgment, the plaintiff seeking a summary judgment that the Sign support structure can be replaced with a monopole and that the plaintiff, as the possessor of a vested property right to the Sign’s status as a nonconforming structure, is entitled to a permit to continue and maintain the use and structure unless and until discontinued or abandoned by the landowner; and the defendants seeking a ruling that the denial of Barrett’s application to rebuild the Sign was proper beyond any genuine issue of material fact because the proposed construction would violate state and federal requirements for the continuance of a grandfathered nonconforming sign; and that plaintiff’s constitutional taking claim fails because there is no constitutional right to do something that would violate the law, nor has there been a regulatory taking.
Applicable Law
The law applicable to the situation presented by the pending motions and objections is a tangled web of Connecticut state and federal statutory and regulatory law which our Appellate Court has spelled out in detail in Billboards Divinity, LLC v. Commissioner of Transportation, 13 Conn.App. 405, cert. denied, 304 Conn. 916 (2012) which both parties have cited. The Appellate Court’s full statement of the applicable law is quoted:
The Highway Beautification Act of 1965, 23 U.S.C. § 131 et seq. (act), was enacted to exert federal control over the erection and maintenance of outdoor advertising signs, displays and devices located within 660 feet of the nearest edge of the right-of-way and visible from the traveled portion of interstate and federal-aid primary highways. 23 U.S.C. § 131(a) and (b). The act requires states to enter into agreements with the federal government to carry out the provisions and the goals of the act or else risk the loss of a portion of their federal highway funding. 23 U.S.C. § 131(b). It is undisputed that the subject property on which the plaintiff sought to erect the replacement billboards is located within 660 feet of a federal-aid primary highway and is visible from that highway; therefore, in determining whether the plaintiff had a clear legal right to the issuance of a permit to erect the replacement billboards, we must first look to the relevant provisions of the act.
Section (d) of the act provides: "In order to promote the reasonable, orderly and effective display of outdoor advertising while remaining consistent with the purposes of this section, signs, displays, and devices whose size, lighting and spacing, consistent with customary use [as] is to be determined by agreement between the several States and the Secretary, may be erected and maintained within six hundred and sixty feet of the nearest edge of the right-of-way within areas adjacent to the Interstate and primary systems which are zoned industrial or commercial under authority of State law, or in unzoned commercial or industrial areas as may be determined by agreement between the several States and the Secretary [of Transportation]. The States shall have full authority under their own zoning laws to zone areas for commercial or industrial purposes, and the actions of the States in this regard will be accepted for the purposes of this Act. Whenever a bona fide State, county, or local zoning authority has made a determination of customary use, such determination will be accepted in lieu of controls by agreement in the zoned commercial and industrial areas within the geographical jurisdiction of such authority ..." 23 U.S.C. § 131(d). Section (d), therefore, clearly limits the erection of signs falling within the provisions of the act solely to areas that are zoned by state or local authorities for commercial or industrial purposes, leaving determinations regarding size, lighting and spacing of signs to be determined in the individual federal-state agreements.
The federal regulations promulgated in support of the act contain a provision addressing the issue of "nonconforming" signs, which it defines as "a sign which was lawfully erected but does not comply with the provisions of State law or State regulations passed at a later date or later fails to comply with State law or State regulations due to changed conditions ..." 23 C.F.R. § 750.707(b). "Changed conditions include, for example signs lawfully in existence in commercial areas which at a later date become noncommercial ..." Id. The regulation authorizes each state to include in its agreement with the federal government a so-called "grandfather clause" to allow for the continuation of nonconforming signs. Id., § 750.707(c). The clause only provides for the continuance of a sign "at its particular location for the duration of its normal life subject to customary maintenance ..." Id.
The federal regulations also set forth criteria necessary to maintain and continue a nonconforming sign. For example, the sign must remain "substantially the same as it was on the effective date of the State law or regulations ..." Id., § 750.707(d)(5). The regulation authorizes each state to "develop its own criteria to determine when customary maintenance ceases and a substantial change has occurred which would terminate nonconforming rights." Id. Further, a nonconforming sign can only continue "as long as is not destroyed, abandoned, or discontinued ..." Id., § 750.707(d)(6). Again, the regulations leave it to the states to "develop criteria to define destruction, abandonment and discontinuance ..." Id., § 750.707(d)(6)(1).
Connecticut entered into an agreement with the federal government pursuant to the act, which led to the enactment of General Statutes § 13a-123. Section 13a-123(a) provides in relevant part: "The erection of outdoor advertising structures, signs, displays or devices within six hundred sixty feet of the edge of the right-of-way, the advertising message of which is visible from the main traveled way of any portion of the National System of Interstate and Defense Highways, hereinafter referred to as interstate highways, the primary system of federal-aid highways or other limited access state highways, is prohibited except as otherwise provided in or pursuant to this section ..." Section 13a-123(c) authorizes the commissioner of transportation to "promulgate regulations for the control of outdoor advertising structures, signs, displays and devices along interstate highways, the primary system of federal-aid highways and other limited access state highways. Such regulations shall be as, but not more, restrictive than the controls required by Title I of the Highway Beautification Act of 1965 and any amendments thereto with respect to the interstate and primary systems of federal-aid highways ... Section 13a-123(e) provides in relevant part: "Subject to regulations adopted by the commissioner and except as prohibited by state statute, local ordinance or zoning regulation signs, displays and devices may be erected and maintained within six hundred sixty feet of primary and other limited access state highways in areas which are zoned for industrial or commercial use under authority of law ..."
Among the regulations promulgated by the commissioner in accordance with § 13a-123(d), is a grandfather clause of the type authorized by 23 C.F.R. § 750.707(c). Section 13a-123-12 of the Regulations of Connecticut State Agencies provides in relevant part that signs legally "erected prior to March 19, 1968, in zoned commercial or industrial areas in actual use ... may be continued ..." The regulation defines "erect" to mean "to construct, build, raise, assemble, place, affix, attach, create, paint, draw, or in any other way bring into being or establish, but it shall not include any of the foregoing activities when performed as an incident to the change of advertising message or customary maintenance or repair of a sign or sign structure." Id., § 13a-123-2(b).
Applying the relevant state and federal statutes and regulations to the undisputed facts of the present case, the plaintiff’s permit application sought to erect new billboards on property that currently is zoned for multifamily use. Because, under both federal and state law, billboards can be erected only in an area zoned as industrial or commercial; 23 U.S.C. § 131(d) and General Statutes § 13a-123(e); any billboards erected on the subject property clearly would violate provisions of both state and federal laws.
The plaintiff nevertheless argues that the billboards it sought to construct were intended to replace the billboards removed by NextMedia. It is undisputed that the prior billboards legally existed before the enactment of the federal-state agreement and, therefore, would have been permitted to continue as nonconforming signs. The plaintiff believes it has the legal right to replace those signs in order to continue with a nonconforming use of its property. Pursuant to the statutory and regulatory scheme set forth previously, however, the plaintiff’s argument has merit only if its erection of new billboards qualifies as "customary maintenance or repair" of the prior nonconforming signs. 23 C.F.R. § 750.707(d)(5) and (6); Regs., Conn. State Agencies § 13a-123-12. "Customary maintenance and repair" is not defined in the regulations; therefore, the term must be construed according to its commonly approved usage. General Statutes § 1-1(a). "If a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary." (Internal quotation marks omitted.) Key Air, Inc. v. Commissioner of Revenue Services, 294 Conn. 225, 235, 983 A.2d 1 (2009). Webster’s Third New International Dictionary (1993) defines "maintenance" as "the labor of keeping something (as buildings or equipment) in a state o repair or efficiency," and it defines "repair" as "restoration to a state of soundness, efficiency, or health." The term "maintenance and repair" as used in reference to nonconforming signs logically refers to actions taken to perpetuate or to restore a presently existing sign. Here, NextMedia lawfully removed the existing, nonconforming billboards from the subject property, apparently without protest by the plaintiff, and the permit for those billboards was terminated. There is no indication that the plaintiff sought to have either the billboards or the permit transferred to its control. Thus, rather than seeking to make repairs to or to maintain an existing, nonconforming billboard, the plaintiff’s application sought a permit to erect two wholly new signs.
The plaintiff has not provided citations to any cases from Connecticut or other jurisdictions in which a property owner was allowed to replace a nonconforming billboard that was lawfully removed from the property, and our research has not revealed any such cases. By contrast, other jurisdictions have found that once nonconforming signs are removed completely, or they have been repaired substantially or altered in some way, any right to the continuation of the nonconformity terminates. See, e.g., Zanghi v. State, 204 App.Div.2d 313, 314, 611 N.Y.S.2d 263 (1994) (plaintiff property owner had no clear legal right to erect new billboard to replace nonconforming billboard removed by plaintiff’s tenant); Meredith Outdoor Advertising, Inc. v. Iowa Dept. of Transportation, 648 N.W.2d 109, 118 (Iowa, 2002) (changes to sign too significant to qualify as customary maintenance so nonconforming use terminated. 133 Conn.App. at 414-19.
The decision in Billboards Divinity was clear cut. The nonconforming billboards had been demolished and completely removed from the subject property. The court therefore found that the proposed construction of replacement billboards at the same site could not be "customary maintenance and repair" of the nonconforming signs, and affirmed the trial court’s denial of a mandamus which would have required that the permit be issued.
In this case, however, the nonconforming billboards continue to exist in their original nonconforming condition. The plaintiff seeks a declaratory ruling in advance that its proposed rebuilding of the billboards with a "monopole" support structure replacing the original multiple piece "trestle" support system amounts to "customary maintenance and repair" thereby preserving the nonconforming status of the billboards and entitling the plaintiff to a permit to do so. The plaintiff seeks a summary judgment that it is entitled to the permit. The defendant DOT seeks a summary judgment that the permit may continue to be properly denied.
Our law applicable of summary judgment is well known. The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact. Dougherty v. Graham, 161 Conn. 248, 250 (1971). Summary judgment is appropriate when "the pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. Miller v. United Technologies Corp., 233 Conn. 732, 744-45 (1995). "Because litigants ordinarily have a constitutional right to have issues of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. He must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Citation and internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 98, 802-3 (2004). "A material fact is a fact that will make a difference in the result of the case ... [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute." Id. At 803.
Discussion
The issue to be decided in this case is whether or not the plaintiff’s proposed deconstruction/reconstruction of its billboard amounts to "customary maintenance or repair" of the billboard. The plaintiff as moving party depends on the December 20, 2018 affidavit of its President Bruce Barrett. The affidavit recites that the billboard in question is permitted as a valid nonconforming sign and attaches as Exhibit 3 a copy of the Application for a permit to rebuild the sign, submitted on DOT’s standard printed form which simply describes the proposed work for which a permit is sought as "Pre-existing structure with two faces. The pole of the structure needs to be replaced." Mr. Barrett’s affidavit expands those fourteen words describing the proposed work as follows:
11. The outdoor advertising sign replacement proposed by Highland and Barrett Outdoor in the application was for the purpose of customary maintenance and repair, in order to allow the sign to continue to exist safely and in good repair. 12. Replacement of outdoor advertising signs and their supporting structures is done routinely in the outdoor advertising industry as part of customary repair and maintenance.
13. As proposed in the Application, the reconstructed sign faces would be of the same size, elevation, location, illumination, and orientation to Interstate I-95, as the existing Sign structure.
14. Pursuant to the Application, the existing multi-element trestle support structure would be replaced with a monopole support structure that would be safer and less visually obtrusive and distracting to drivers on I-95 and more resistant to high wind loads, and would have a much smaller footprint on the ground and smaller overall volume than the existing support structure.
The defendant DOT relies on the February 19, 2019 Affidavit of Steven L. Degan as a Supervising Property Agent of the Department of Transportation, which states, in part:
6. Pursuant to Conn. Gen. Stat. § 13a-123, an owner of a grandfathered nonconforming sign under Section 13a-123-12 of the Regulations of Connecticut State Agencies and 23 C.F.R. § 750.707 is required to have a permit to operate and maintain the existing sign. A sign owner holding such a permit for a grandfathered nonconforming sign may continue to operate the sign subject to customary maintenance and repair for the duration of the sign’s normal life ...
10. In the Application, Barrett proposes to rebuild the sign, replacing the existing support structure with a new support pole ...
13. DOT has allowed and will continue to allow the Sign to exist in its current structure and location subject to customary maintenance and repair. Pursuant to state and federal regulations, existing grandfathered nonconforming signs may continue exist provided they remain substantially the same, subject to customary maintenance and repair for the course of their normal lives.
14. Sign owners wishing to do customary maintenance and repair on signs covered by an existing permit do not need to submit a new application for an outdoor advertising permit to DOT. Only applicants seeking to replace an existing sign with a new sign at new location are required to apply for a new outdoor advertising permit.
15. Removing the existing support structure and sign faces to replace it with an entirely new structure is not customary maintenance and repair of an existing sign.
16. DOT denied the Application because the proposed construction does not meet the definition of customary maintenance and repair under the Connecticut Appellate Court precedent and the proposed construction would violate both Connecticut and federal law.
The affidavits are largely argumentative, and offer opposing opinions on the ultimate issue here at issue, whether or not Barrett’s proposed deconstruction/reconstruction of its billboard amounts to "customary maintenance or repair" of the existing billboard, or does it amount to construction of a whole new billboard? The affidavits offer scant specific facts which would be relevant to that determination, such as: Other than replacing the trestle supports with a monopole support structure, would other component parts of the existing billboard be re-utilized in the reconstructed billboard? Would the existing billboard be totally taken down during the proposed work? Would any parts of the existing billboard other than the trestle supports be removed from the Property? If the existing billboard is to be completely dismantled, how long would it remain in that state before being reconstructed with a monopole support system?
During oral argument counsel for the plaintiff made certain representations as to those issues in response to a question from the court now in retrospect determined to have been inappropriately asked in an argument on a motion for summary judgment. Those statements, being unsworn representations of counsel, cannot be considered in this decision as they fail to comply with the requirements of Practice Book § 17-46.
Both parties have therefore failed to meet their threshold requirement as a moving party seeking summary judgment to bring forward evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute. They have both failed to make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. As the Iowa court said in Meredith Outdoor Advertising, Inc., supra, cited in Billboards Divinity, "The alterations and additions in this case were too extensive to constitute de minimis changes to or a mere continuation of the existing sign ... Our conclusion is aligned with other states that have adopted similar criteria in regulating nonconforming signs. See. e.g. U.S. Outdoor Adver. Co. v. Ind. Dept. Of Transp., 714 N.E.2d 1244, 1265 (Ind.Ct.App. 1999) (finding reconstruction resulted in a substantial change to nonconforming sign, where owner added new sign face and changed dimensions and support posts.) The scant facts presented by the pleadings and the counter affidavits in this case are inadequate for this court to determine whether not there is a material issue of fact as to the requested declaratory judgment. The issues should therefore be determined on a full trial on the merits where presumably the full details and plans and timetable of the proposed deconstruction/reconstruction will be available to the finder of fact.
Order
The Plaintiff’s Motion for Summary Judgment (No. 105) and the Defendants’ Cross Motion for Summary Judgment and Opposition to Plaintiff’s Motion for Summary Judgment (No. 109) are denied.