Opinion
No. CV 08-4035450-S
July 28, 2010
MEMORANDUM OF DECISION OF MOTION FOR SUMMARY JUDGMENT
This is an action by the owner of property in Bristol containing an outdoor advertising billboard to obtain approval from the Connecticut Department of Transportation of its application for permission to replace it. The plaintiff claims that defendants have denied the application on the mistaken belief that the billboard was in violation of the Town of Bristol's zoning regulations.
On January 29, 2010, the defendant moved for summary judgment claiming that the proposed location was in an area zoned for multi-family housing and within 100 feet of a park and permitting the proposed billboard would violate state and federal law. The plaintiff alleges that its application was for a new billboard to replace a billboard that had been torn down and which had existed prior to the enactment of 23 U.S.C. § 131 and General Statutes § 13a-123.
-I-
In accordance with Title 1 of the Highway Beautification Act of 1965, 23 U.S.C. § 131, states may enter into agreements with the federal government to regulate outdoor advertising, including billboards in areas adjacent to Interstates and primary highways. Connecticut's agreement is found at General Statutes § 13a-123, which provides in relevant part: "(a) 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 . . ."
23 U.S.C. § 131(d) 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 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. 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. Nothing in this subsection shall apply to signs, displays, and devices referred to in clauses (2) and (3) of subsection (c) of this section."
Since it is undisputed that any sign built on the subject property would violate the provisions of these sections; the key issue becomes whether a billboard may be erected as a nonconforming use.
-II-
Section 750.707 of title 23 of the Code of Federal Regulations governs nonconforming signs and provides in relevant part:
(a) General. The provisions of § 750.707 . . . apply to nonconforming signs located in commercial and industrial areas within 660 feet of the nearest edge of the right-of-way which come under the so-called grandfather clause contained in State-Federal agreements . . .
(b) Nonconforming Signs. A nonconforming sign is 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. Change conditions include, for example, signs lawfully in existence in commercial areas which at a later date become noncommercial, or signs lawfully erected on a secondary highway later classified as a primary highway.
(c) Grandfather Clause. At the option of the State, the agreement may contain a grandfather clause under which criteria relative to size, lighting, and spacing of signs in zoned and unzoned commercial and industrial areas within 660 feet of the nearest edge of the right-of-way apply only to new signs to be erected after the date specified in the agreement. Any sign lawfully in existence in a commercial or industrial area on such date may remain even though it may not comply with the size, lighting, or spacing criteria. This clause only allows an individual sign at its particular location for the duration of its normal life subject to customary maintenance. Preexisting signs covered by a grandfather clause, which do not comply with the agreement criteria have the status of nonconforming signs.
Connecticut has enacted regulations in conformity with the federal law. Section 13a-123(c) provides: "The commissioner may 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 or the national standards of the Secretary of Commerce in respect to the interstate highways, in effect November 13, 1958, and any amendments thereto."
Among those regulations is a grandfather clause such as that referred to by § 750.707(c) of title 23 of the Code of Federal Regulations. Section 13a-123-12 of the Regulations of Connecticut State Agencies provides that "[s]igns erected prior to March 19, 1968 . . . may be continued . . ." According to § 13a-123-2(b) of the Regulations of Connecticut State Agencies, "`[e]rect' means 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." (Emphasis added.) Therefore, unless the construction of the proposed billboard constitutes customary maintenance or repair, it would be erected after March 19, 1968 and not meet the requirements to continue as a nonconforming sign.
Section 750.707(d) of title 23 of the Code of Federal Regulations provides guidance as to maintenance and continuance of a nonconforming use:
In order to maintain and continue a nonconforming sign, the following conditions apply . . . (5) The sign must remain substantially the same as it was on the effective date of the State law or regulations. Reasonable repair and maintenance of the sign, including a change of advertising message, is not a change which would terminate nonconforming rights. Each State shall develop its own criteria to determine when customary maintenance ceases and a substantial change has occurred which would terminate nonconforming rights.
(6) The sign may continue as long as it is not destroyed, abandoned, or discontinued. If permitted by State law and re-erected in kind, exception may be made for signs destroyed due to vandalism and other criminal or tortious acts.
(i) Each state shall develop criteria to define destruction, abandonment and discontinuance. These criteria may provide that a sign which for a designated period of time has obsolete advertising matter or is without advertising matter or is in need of substantial repair may constitute abandonment or discontinuance. Similarly, a sign damaged in excess of a certain percentage of its replacement cost may be considered destroyed.
Connecticut has enacted no statute or regulation defining customary maintenance or destruction. Other jurisdictions have held, however, that complete destruction of a sign terminates the nonconforming use. Likewise, courts have interpreted "customary maintenance and repair" to exclude newly built replacement signs, along with less extensive modifications and repairs. "Grandfathered signs . . . lose their exemption once they are destroyed by noncriminal, nontortious acts, and a state would violate the federal regulation and the Highway Beautification Act by permitting a nonconforming replacement sign." Chancellor Media Whiteco Outdoor Corp. v. Dept. of Transportation, 796 So.2d 547, 549 (2001). See also Zanghi v. State, 204 A.D.2d 313, 611 N.Y.S.2d (1994) (relying on state statute substantially similar to federal regulation, court found that after tenant removed sign without permission, landowner's newly erected sign was not protected nonconforming use and must be removed); Ozarkland Enterprises, Inc. v. Missouri Highway and Transportation Commission, 84 S.W.3d 483 (Mo. 2002) (changing sign poles from wood to steel terminated nonconforming use); Whiteco Metrocom Corp. v. Kentucky, 14 S.W.3d 24 (Ky. 1999) (billboard lost nonconforming use after repair following substantial wind damage).
-III-
In the present case, the previous billboard was built in 1949, and therefore falls within the required period to remain in use as a nonconforming sign. That sign was removed and destroyed, and the plaintiff wants to build a new sign to replace it. There is no allegation that the sign was destroyed due to vandalism or any other criminal or tortious act. Consequently, any rebuilt sign would fail to maintain a nonconforming use under § 750.707(d)(6) of title 23 of the Code of Federal Regulations. Furthermore, as a variety of jurisdictions have found, the construction of an entirely new sign is not "customary maintenance or repair." Consequently, the proposed sign would be erected after 1968 and therefore not fall under the nonconforming sign regulation.
Plaintiff has failed to provide any argument regarding 23 U.S.C. § 131, § 13a-123 or any of the relevant state and federal regulations, and instead argues that the billboard constitutes a nonconforming use under General Statutes § 8-2, which provides in relevant part: "[Municipal zoning regulations] shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations." The plaintiff's reliance on that statute is misplaced, and its discussion of nonconforming use and abandonment in zoning cases is inapposite to the present case, which is governed by 23 U.S.C. § 131, § 13a-123 and the appropriate regulations, and not by any regulation or action by a municipality or zoning board of appeals.
It is concluded that the defendant is not required to issue a permit for a new billboard, and the defendant's motion for summary judgment is granted.