Opinion
Nos. CV 98 0354488, CV 99 0367043, CV 99 0360417
January 20, 2004
MEMORANDUM OF DECISION
I. PARTIES
The plaintiffs in this appeal are Brentwood Extension, LLC (Brentwood) and the Outdoor Development Corporation (Outdoor). "Outdoor Development Corporation is one of several entities owned by members of the Barrett family. For many years the Barrett family has been involved in the business of outdoor advertising. [As of 1998,] Bruce A. Barrett, a son of the founder of these enterprises, [was] the president of [Outdoor]." (ROR 0360417, Exhibit Q, Sub-exhibit 8 p. 2.)
The defendants in this appeal are the Zoning Board of Appeals for the City of Bridgeport (ZBA), the Planning and Zoning Commission of the City of Bridgeport (commission), Murphy, Inc. (Murphy), and Dowling Enterprises, Inc. (Dowling). "Murphy, Inc., is also a family business. The principals are Philip and Robert Murphy, cousins, who are descendants of the company's founders. Murphy, Inc., like [Outdoor,] is in the billboard business." (ROR 0360417, Exhibit Q, Sub-exhibit 8 p. 2.)
II. GENERAL STATEMENT OF APPEAL
The plaintiffs, Brentwood and Outdoor, appeal from three zoning decisions.
First, the plaintiffs appeal from the commission's decision to approve Murphy's planning and zoning application to remove a billboard on 1945 State Street Extension, Bridgeport (a/k/a 1943 State Street Extension) (1945 State Street), and replace it with a billboard on 1901 State Street Extension, Bridgeport (1901 State Street). (CV 98 0354488)
Second, the commission denied the plaintiffs' application for a certificate of zoning compliance and the ZBA affirmed that denial. The plaintiffs now appeal from the ZBA's decision. (CV 99 0367043)
Third, the commission approved Murphy's application for a billboard sign permit for 1901 State Street and the ZBA upheld that decision. The plaintiffs now appeal from the ZBA's decision to uphold Murphy's application. (CV 99 0360417)
Although this court's review of each appeal is bound by separate considerations, all three appeals are factually related and can be resolved in one memorandum.
III. PROCEDURAL HISTORY A. The mandamus Action (CV 98 0358189)
On November 16, 1998, the plaintiffs, along with Barrett Outdoor Communications, filed a complaint against Dennis Buckley, Zoning Enforcement Officer (ZEO) for the city of Bridgeport, the commission, and the city of Bridgeport, seeking a mandamus order to compel Buckley to act on their application for a certificate of zoning compliance and application for sign permit. On November 14, 1999, the case was consolidated with the three other cases in this appeal by order of the court, Skolnick, J.
B. The Murphy Commission Appeal (CV 98 0354488)
On February 13, 1998, Murphy submitted an application to the commission for a special permit and site plan approval to relocate its billboard sign from 1945 State Street to 1901 State Street. (ROR 0354488, Exhibit B.) The application was considered at a public hearing held on April 27, 1998, which was continued to June 2, 1998. (ROR 0354488, Exhibit A.) By letter dated June 8, 1998, the commission voted to approve Murphy's application over Brentwood's objection. (ROR 0354488, Exhibit U.) The plaintiffs appeal this decision to the Superior Court.
ISSUE SUBMISSION: Whether the commission erroneously granted Murphy's planning and zoning application for a special permit and site plan approval to remove a billboard sign from 1945 State street and replace a billboard sign on 1901 State Street. (CV 98 0354488) It is submitted that this appeal should be sustained.
C. The Plaintiffs' ZBA Appeal (CV 99 0367043)
On April 27, 1998, Brentwood submitted an application for a certificate of zoning compliance and an application for a sign permit. (Return of Record [ROR] 0360417, Exhibit 1, pp. 6, 8.) The date of the application's denial is at issue, however, the plaintiffs maintain that the first notice of denial came on March 22, 1999 in the form of a letter from William Shaw (Shaw), the city planning engineer. (Supplemental Record [SR] 0367043, Exhibit A.) On April 16, 1999, the plaintiffs appealed from Shaw's denial to the ZBA. (ROR 0360417, Exhibit 1, p. 1.) The ZBA denied the plaintiffs' appeal on June 8, 1999. (ROR 0360417, Exhibit 14.) The plaintiffs then filed a complaint in Superior Court on July 3, 1999 appealing the ZBA's denial.
ISSUE SUBMISSION: Whether the ZBA erred in dismissing the plaintiffs' appeal from the commission's decision to deny the plaintiffs' application for a certificate of zoning compliance. (CV 990367043) It is submitted that this appeal should be sustained.
D. The Murphy ZBA Appeal (CV 99 0360417)
After Murphy's planning and zoning application was approved, Murphy submitted an application for a sign permit and for a permit to erect a sign on 1901 State Street. (ROR 0360417, Exhibit B, p. 5, 6.) On the same day, June 8, 1998, the commission approved Murphy's application. (ROR 0360417, Exhibit B, pp. 5, 6.) On June 10, 1998, the plaintiffs appealed the commission's decision to the ZBA. (ROR 0360417, Exhibit B, p. 1.) At a meeting held on January 12, 1999, the ZBA upheld the commission's decision. (ROR 0360417, Exhibit U, p. 6.)
ISSUE SUBMISSION: Whether the ZBA erred in dismissing the plaintiffs' appeal from the commission's decision to grant Murphy's application for a billboard sign permit for 1901 State Street. (CV 99 0360417) It is submitted that this appeal should be sustained.
IV. FACTS CT Page 57
This administrative appeal involves a dispute over the use of outdoor advertising signs on two pieces of property in Bridgeport, Connecticut: 1945 State Street Extension (a/k/a 1943 State Street Extension) (1945 State Street), and 1901 State Street Extension (1901 State Street). Both lots are zoned Industrial Light (IL). (ROR 0354488, Exhibit B.) The plaintiffs in this appeal are Brentwood Extension, LLC (Brentwood) and The Outdoor Development Corporation (Outdoor). "Outdoor Development Corporation is one of several entities owned by members of the Barrett family. For many years the Barrett family has been involved in the business of outdoor advertising. [As of 1998,] Bruce A. Barrett, a son of the founder of these enterprises, [was] the president of [Outdoor]." (ROR 0360417, Exhibit Q, Sub-exhibit 8 p. 2.) The defendants in this appeal are the Zoning Board of Appeals for the City of Bridgeport (ZBA), the Planning and Zoning Commission of the City of Bridgeport (Commission), Murphy, Inc. (Murphy), and Dowling Enterprises, Inc. (Dowling). "Murphy, Inc., is also a family business. The principals are Philip and Robert Murphy, cousins, who are descendants of the company's founders. Murphy, Inc., like [Outdoor,] is in the billboard business." (ROR 0360417, Exhibit Q, Sub-exhibit 8 p. 2.)
A brief look at the extensive factual background surrounding this case is necessary. The relevant events begin over ten years ago. In 1981, Thomas Mihalov (Mihalov) contracted with Murphy to lease a portion of 1945 State Street to Murphy for purposes of constructing and maintaining a large billboard. The agreement provided for a ten-year lease commencing in July 1982 and expiring on July 31, 1992. (ROR 0360417, Exh. Q, Sub-exh. 8, p. 3.)
At the expiration of Murphy's lease, Mihalov entered into a ten-year lease agreement with Outdoor, one of Murphy's primary competitors. (ROR 0354488, Exh. N; ROR 0360417, Exh. Q, Sub-exh. 8, p. 4.) Subsequent to Mihalov's contract with Outdoor, Mihalov resumed discussions with Murphy and ultimately repudiated the Outdoor contract to allow Murphy and its billboard to remain on the property. (ROR 0360417, Exh. Q, Sub-exh. 8, p. 4.)
As a result of the repudiation, Outdoor brought suit against Mihalov and Murphy. The parties agreed to a bifurcated bench trial, with separate hearings on issues of liability and damages. In its decision on liability dated May 12, 1998, the court, Pittman J., held that Mihalov breached its contract with Outdoor, but did not violate any unfair trade practices and that Murphy was not liable for any of the allegations brought against it. (ROR 0360417, Exh. Q, Sub-exh. 8, pp. 7-13.) In its decision on the issue of damages, the court ordered that Mihalov pay Outdoor $29,500 in lost profits. (Sup. ROR 0354488, Exh. 1, p. 7.) This decision was upheld on review by the Appellate Court. See Outdoor Development Corp. v. Mihalov, 59 Conn. App. 175, 756 A.2d 293 (2000).
The court held that Murphy was not liable for the tort of interference with contract rights, nor did Murphy violate Connecticut Unfair Trade Practices Act (CUTPA). Also, the court held that Outdoor was not itself liable for tortious interference, nor did Outdoor violate CUTPA.
On January 26, 1998, the court, Thim, J., entered a judgment of strict foreclosure against Mihalov in favor of Brentwood. Brentwood Extension LLC v. Mihalov, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 920294842; (ROR 0354488, Exh. A, p. 9.) At the time of strict foreclosure judgment, Murphy remained the owner of the outdoor advertising sign located on 1945 State Street. On March 2, 1998, the court, Skolnick, J., ordered Murphy to remove its sign from the property by June 30, 1998 (120 days from March 2, 1998). Outdoor Development Company v. Buckley, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 980358189 (March 2, 1998, Skolnick, J.). (Plaintiffs' Objection to Motion to Intervene, Exhibit A.)
Four days after Judge Skolnick's order, Murphy filed a petition with the commission for a special permit and site plan approval to remove its sign on 1945 State Street and replace it with a billboard sign on 1901 State Street. (ROR 0354488, Exh. B.) At public hearings on April 27, 1998 and June 2, 1998, Murphy put forth its arguments for approval and Brentwood argued in opposition. (ROR 0354488, Exh. A.) By letter dated April 17, 1998, the commission approved Murphy's application over the plaintiffs' objection. (ROR 0354488, Exh. H.) The plaintiffs appealed the commission's decision to this court. The file bears the docket number CV 98 0354488 and will hereinafter be referred to as the "Murphy commission appeal."
On April 27, 1998 and June 3, 1998, the plaintiffs submitted identical applications with the commission to replace Murphy's billboard. (ROR 0367043, Exh. 1, p. 5-6.) Although the application was ultimately denied, the date of denial is at issue. The defendants argue that the commission denied the plaintiffs' application by letter dated January 28, 1999. The plaintiffs maintain, however, that the original notice was ambiguous, and that the actual notice of denial was not rendered until March 22, 1999. (Supplemental Record [SR] 0367043, Exh. A.) The plaintiffs submitted two notices of appeal to the ZBA. The first notice, a letter, was delivered on February 23, 1999; the second notice, a letter and fully executed petition, was delivered on April 16, 1999. (ROR 0367043, Exh. 1, p. 1, 3.) On June 8, 1999, the ZBA denied the plaintiffs' appeal. (ROR 0367043, Exh. 14.) On July 3, 1999, the plaintiffs appealed the ZBA's decision to this court. This action bears the docket number CV 99 0367043 and will hereinafter be referred to as the "plaintiffs' ZBA appeal."
On November 16, 1998, the plaintiffs, along with Barrett Outdoor Communications, filed a complaint against Dennis Buckley, Zoning Enforcement Officer for the City of Bridgeport, the Commission, and the City of Bridgeport, seeking a mandamus order to compel Buckley to act on their application for a certificate of zoning compliance and application for sign permit. The case bears docket number CV 98 0358189. On November 14, 1999, the case was consolidated with the three other cases in this appeal by order of the court, Skolnick, J.
On June 8, 1998, Murphy filed two applications with the commission for a sign permit and a permit to erect a sign; both were approved on the same day. (ROR 0360417, Exh. B, pp. 5, 6.) The plaintiffs appealed the commission's decision to the ZBA and on January 12, 1999, the ZBA upheld the commission's decision. (ROR 0360417, Exh. U, p. 6.) The matter was then appealed to this court. The action bears the docket number CV 99 0360417 and will hereinafter be referred to as the "Murphy ZBA appeal."
The plaintiffs bring the present consolidated appeal contesting the aforementioned decisions of the commission and the ZBA.
V. JURISDICTION/AGGRIEVEMENT
General Statutes § 8-8(b) provides in relevant part that "any person aggrieved by any decision of a board may take an appeal to the superior court . . ." "`Aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." General Statutes § 8-8(a)(1). "`Board' means a municipal zoning commission, planning commission, combined planning and zoning commission, zoning board of appeals or other board or commission." General Statutes § 8-8(a)(2). "It is well settled that `[p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 410.
"Two broad yet distinct categories of aggrievement exist, classical and statutory." Lewis v. Planning Zoning Commission, 62 Conn. App. 284, 288, 771 A.2d 167 (2001). "Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." Id.
There are two plaintiffs and three appeals before this court. In the plaintiffs' ZBA appeal, the plaintiff, Brentwood, is the owner of 1945 State Street, and is therefore, statutorily aggrieved under § 8-8(b). Additionally, 1945 State Street abuts the 1901 State Street, which is the subject of both the Murphy commission appeal and the Murphy ZBA appeal. Thus, Brentwood is also statutorily aggrieved as to each of these appeals as well.
There is a separate test to determine classical aggrievement. "The fundamental test by which the status of [classical] aggrievement . . . is determined encompasses a well-settled twofold determination. First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Citation omitted; internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 702, 780 A.2d 1 (2001).
According to the record, the plaintiff, Outdoor, has a lease agreement with Brentwood allowing Outdoor to operate its sign on 1945 State Street. (ROR 0360417, Exh. A, p1.) All thee appeals have had the consequences of preventing Outdoor from operating its sign under that lease. Outdoor, therefore, has demonstrated a specific, personal and legal interest in the subject matter of each of the three agency decisions, and its interest has been specially and injuriously affected by the aforementioned decisions. For this reason, the court finds Outdoor to be classically aggrieved.
VI. STANDARD OF JUDICIAL REVIEW A. The Murphy Commission Appeal
"As a general matter, a zoning commission is empowered to determine whether: (1) the proposed use of the property is permitted under the zoning regulations; (2) the standards contained in the regulations are satisfied; and (3) conditions of approval or modifications to the proposal are necessary to protect public health, safety, convenience and property values, as provided for in General Statutes § 8-2." Torrington v. Zoning Commission, 261 Conn. 759, 769, 806 A.2d 1020 (2002).
"On appeal, a reviewing court reviews the record of the administrative proceedings to determine whether the commission or the board has acted fairly or with proper motives or upon valid reasons." Schwartz v. Planning Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988).
"In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal." (Internal quotation marks omitted.) Irwin v. Planning Zoning Commission, 244 Conn. 619, 628, 711 A.2d 675 (1998).
B. The Plaintiffs' ZBA Appeal and the Murphy ZBA Appeal
"Generally, it is the function of a zoning board . . . 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 . . . In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal." (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 697, 784 A.2d 354 (2001).
VII. DISCUSSION
There are three appeals pending before this court. The plaintiffs submitted one memorandum and one reply memorandum in support of all three appeals. The defendants, ZBA, commission, Murphy, and Dowling, also consolidated their objection into one memorandum in opposition to all three appeals.
According to the plaintiffs, one issue is dispositive of all three appeals: if Brentwood was entitled as a matter of law to the issuance of permits to replace the sign on 1945 State Street, then Murphy's planning and zoning application and sign application could not have been approved. The plaintiffs' contention that this case revolves around one issue is an understatement of the complexity of this matter. Each case will be analyzed separately, and in chronological order.
A. The Murphy commission Appeal
On February 13, 1998, Murphy submitted an application to the commission for a special permit and site plan approval to remove its billboard sign on 1945 State Street and replace it with a billboard sign on 1901 State Street. (ROR 0354488, Exh. B.) On June 2, 1998, Murphy's application was approved. (ROR 0360417, Exh. J, Sub-exh. 7, p. 6.) The plaintiffs contend that the commission should not have approved Murphy's application because it was not in compliance with local regulations.
"A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations." (Internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 215, 779 A.2d 750 (2001). On the other hand, "[a] site plan is a plan filed with the zoning commission . . . to determine the conformity of a proposed building, use or structure with specific provisions of the zoning regulations." (Internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning Zoning Commission, 46 Conn. App. 566, 570, 700 A.2d 67, cert. denied, 243 Conn. 935, 702 A.2d 640 (1997). Local zoning boards are charged with interpreting and applying zoning regulations to different situations. A zoning board should not, however, modify or deny a site plan or special permit if it complies with the requirements already set forth in the zoning regulations. Id.; see also RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 468-69, 778 A.2d 61 (2001).
"When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity . . . [Its] function . . . [is] 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." (Internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, supra, 258 Conn. 217.
"As a general matter, a zoning commission is empowered to determine whether: (1) the proposed use of the property is permitted under the zoning regulations; (2) the standards contained in the regulations are satisfied; and (3) conditions of approval or modifications to the proposal are necessary to protect public health, safety, convenience and property values, as provided for in General Statutes § 8-2." Torrington v. Zoning Commission, supra, 261 Conn. 769.
"On appeal, a reviewing court reviews the record of the administrative proceedings to determine whether the commission or the board has acted fairly or with proper motives or upon valid reasons." (Internal quotation marks omitted.). Schwartz v. Planning Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). It is well recognized that "[i]n applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal." (Internal quotation marks omitted.) Irwin v. Planning Zoning Commission, supra, 244 Conn. 628.
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 420.
The members of the commission voting in favor of Murphy's application assigned two reasons for its action.
Reason one: the project, as submitted, complies with the site plan review standards of § 14-2-5 and the special permit standards of § 14-4-4 of the regulationsIn April 1982, Murphy obtained two permits from the Bridgeport building department. One was a sign permit and the other was a permit to erect a sky sign. (SR 0354488, Exh. B.) Sixteen years later, on February 13, 1998, four days after Brentwood became the owner of 1945 State Street, Murphy filed a petition to relocate its sign from 1945 State Street to 1901 State Street. (ROR 0354488, Exh. B.) This petition was granted over the plaintiffs' objection. According to § 15.32.040(B) of the regulations, advertising signs, such as the ones at issue here, maybe no closer than 1000 feet from each other. 1945 State Street and 1901 State Street are immediately adjacent to one another, separated by less than 1000 feet. (ROR 0354488, Exh. A, p. 5.)
Site plan and special permit approval requires first that the proposed use conform with local regulations. Heithaus v. Planning Zoning Commission, supra, 258 Conn. 215-17. The plaintiffs argue the commission violated local regulations because Brentwood had a nonconforming use, and Murphy had no right to relocate its use permits to 1901 State Street. The defendants counter that the plaintiffs did not have nonconforming use rights, and vested rights in the permits, if any, would have run to Murphy, not Brentwood.
The record provides that as of July 1982, Murphy operated a sign structure on 1945 State Street, which is located in the light industrial zone (LI). (SR 0354488, Exh. B.) At that time, advertising signs were a permitted use in this zone. Section 11-9-1(d) of the regulations was amended subsequent to 1982 to require a site plan review and special permit approval. The plaintiffs contend that because the sign on 1945 State Street was in existence and in use at the time the amendments were adopted, the use of the property for outdoor advertising qualifies as a pre-existing nonconforming use. The defendants counter that local regulations preclude this type of use from being labeled nonconforming and what is more, this is not the same type of use that has been classically recognized as nonconforming.
"A [nonconforming] use is merely an existing use the continuance of which is authorized by the zoning regulations . . . Such a use is permitted because its existence predates the adoption of the zoning regulations . . . The plaintiff bears the burden of proving the existence of a nonconforming use." (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, supra, 258 Conn. 693 n. 3. "[T]he rule concerning the continuance of a nonconforming use protects the right of a user to continue the same use of the property as it existed before the date of the adoption of the zoning regulations." (Internal quotation marks omitted.) Helbig v. Zoning Commission, supra, 185 Conn. 306.
Regulations § 3-10-1 states: "Any structure or the use of any structure or land which was conforming or validly nonconforming and otherwise lawful at the enactment date of the Zoning Regulations and is nonconforming under the provisions of the Regulations, or which shall be made nonconforming by a subsequent amendment, may be continued in accordance with the provisions of this Section." Under General Statutes § 8-2(a), local zoning regulations "shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations." Regulations § 3-10-6 states: "Any existing use which is permitted as of right on the enactment date of these Regulations, but which under the provisions of these Regulations is permissible only by special permit, if otherwise lawful, shall not be deemed a nonconforming use." (Emphasis added.)
Here, the evidence demonstrates that the operation of a sign on 1945 State Street was permitted as of right. By subsequent regulation, the use became permitted only after special permit approval, but was otherwise lawful. Regulations § 3-10-6 speaks directly to this type of situation and provides that, where a regulation is amended to require a special permit, and the use is otherwise legal, the use of the property shall not be deemed nonconforming. The defendants correctly point out that the use of 1945 State Street for advertising simply cannot qualify as a nonconforming use under the regulations.
The defendants add that the usual genesis of a nonconforming use is the promulgation of zoning regulations which either prohibit or fail to allow the use in question in the respective zone. This definition, the defendant maintains, must be distinguished from a use, such as the one in the case at bar, which is otherwise permitted in the LI zone, but which requires compliance with zoning regulations by way of a site plan or special permit. According to the defendants, in cases such as this, the use continues to be permitted under the regulations, but permission is subject to the satisfaction of additional regulations.
In Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 710, 535 A.2d 799 (1988), the court defined a nonconformity as "a use or structure prohibited by the zoning regulations . . ." Here, the amendment to § 11-9-1(d) of the regulations did not prohibit the use of a sign structure on 1945 State Street. Instead, it merely required an owner to submit a site plan for approval and acquire a special permit. In the Practice Book's section on land use law and practice, Judge Fuller noted: "[t]here are basically four types of nonconformity: (1) the use of land is nonconforming; (2) nonconforming building or structure; (3) nonconformity as to location of structure; (4) the size or shape of parcel is nonconforming." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 2.2, p. 21. Here, there is no evidence establishing a nonconformity under any of these types. Nevertheless, even if this logic fails, the plaintiffs' use has been deemed conforming by Regulations § 3-10-6. As such, the plaintiff may not rely on any theory premised on a nonconforming use as a basis for reversal of the commission or ZBA.
Although Brentwood did not succeed to nonconforming use rights, it did succeed to other existing rights on the property. The issue is whether the sign permits already on the land ran with the land, and if so, what rights did that give Brentwood in them. It is a fundamental concept of zoning law that land use regulation is concerned with the use of the land and not its ownership. R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 53.8, p. 581-82; see also Builders Service Corp. v. Planning Zoning Commission, 208 Conn. 267, 285, 545 A.2d 530 (1988) (zoning is direct towards the use and not the ownership of property). It is generally accepted that "[z]oning regulates the use of land irrespective of who may be the owner . . ." (Citations omitted; internal quotation marks omitted.) Gangemi v. Zoning Board of Appeals, 255 Conn. 143, 160, 763 A.2d 1011 (2001). Moreover, zoning power should be used to regulate the use rather than the user of the land Id., 165. Our Supreme Court reasoned that, "an essential purpose of zoning regulation is to stabilize property uses." Builders Service Corp. v. Planning Zoning Commission, 208 Conn. 267, 286, 545 A.2d 530 (1988).
Traditional land use permits such as inland, wetlands permits, variances, site plans, special permits and subdivision permits run with the land See, e.g., TWK, LLC v. Meriden Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. CV 97 400324 (January 8, 1999, Meadow, J.T.R.); Griswold Hills of Newington Limited Partnership v. Town Plan and Zoning Commission of the Town of Newington, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 705701 (June 9, 1995, Berger, J.) ( 14 Conn. L. Rptr. 405). Zoning permits run with the land because it is a well established principle that "[z]oning is concerned with the use of specific existing buildings and lots, and not primarily with their ownership." (Internal quotation marks omitted.) Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 484, 408 A.2d 243 (1979). "There is no real difference, in terms of this discussion, amongst any of the land use permits." Griswold Hills of Newington Limited Partnership v. Town Plan and Zoning Commission of the Town of Newington, supra, 14 Conn. L. Rptr. 405. See also TWK, LLC v. Meriden Zoning Board of Appeals, supra, Superior Court, judicial district of New Haven.
The court in these cases cited Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972), and Fromer v. Two Hundred Post Associates, 32 Conn. App. 799, 631 A.2d 347 (1993), for this proposition.
On January 26, 1998, Judge Thim entered a judgment of strict foreclosure in favor of Brentwood. Brentwood Extension LLC v. Mihalov, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 920294842; (ROR 0354488, Exh. A, p. 9.) On March 2, 1998, the court, Skolnick, J., ordered Murphy to remove its sign from the property by June 30, 1998 (120 days from March 2, 1998). Outdoor Development Company v. Buckley, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 0358189 (March 2, 1998, Skolnick, J.) (Plaintiffs' Objection to Motion to Intervene, Exhibit A.) The final law day occurred on June 2, 1998, which signifies the date that Brentwood received legal title to the property. (ROR 0360417, Exh. 1, p. 15.)
Given that these permits ran with the land, the succeeding issue is: what rights did Brentwood acquire when its title to the property vested. In Van Stone's Cypress, the court held that "[a] successor in interest to . . . realty succeeds to the benefits and to the conditions of a land use permit to which the realty is subject." Van Stone's Cypress v. Stratford Zoning Commission, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 292015 (January 8, 1993, Levin, J.). The court continued, when property is transferred, "[t]he new owner stands in the same position as the prior owner." Id. Similarly, another trial court determined that "[t]he terms of the permit do not change because another person or entity steps into the shoes of the initial applicant." Griswold Hills of Newington Limited Partnership v. Town Plan and Zoning Commission of the Town of Newington, supra, 14 Conn. L. Rptr. 405. Moreover, a conforming use "inures to the benefit of a subsequent owner of the land and is not abandoned in the absence of a time limitation in the zoning ordinance." (Internal quotation marks omitted.) TWK, LLC v. Meriden Zoning Board of Appeals, supra, Superior Court, judicial district of New Haven.
The court cited in support of this proposition: R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 53.8, p. 581-82; Fromer v. Two Hundred Post Associates, 32 Conn. App. 799, 805, 631 A.2d 347 (1993) (holding that change of ownership did not affect the validity of an inlands wetlands permit).
1945 State Street is valuable real estate for advertising. It is surrounded by a busy railroad and a major highway. (ROR 0354488, Exh. A, p. 5.) The identity of the applicant seeking billboard permits on this property is, and always has been, irrelevant. The focus of billboard permits is on the use of the land, not the user. Accordingly, when Brentwood became the owner of 1945 State Street, it acquired the same rights as its successor Mihalov had, including the right to erect a fifteen foot by sixty foot sky pole and the right to erect a fifteen foot by sixty foot sky sign.
There is no evidence in the record that Mihalov, the owner of 1945 State Street at the time of the strict foreclosure, sought to abandon, or could have abandoned, his use of the permits on the property. On January 26, 1998, Brentwood acquired the right to use the permits on the property, and consequently, Murphy lost its rights. Although Murphy certainly had the right to apply for new permits to erect a billboard sign on 1901 State Street, it did not have the right to relocate the permits it was issued in 1982 and use those permits on 1901 State Street, which is exactly what it did. (ROR 0354488, Exh. A, p. 5; Exh. B.) The commission should have denied Murphy's application on the ground that § 15.32.040(B) of the regulations prevents two signs from coexisting within 1000 feet of each other. The proper avenue for Murphy to seek approval from the commission for erecting its own billboard at 1901 State Street would be through filing an application for a variance. Thus, the commission violated § 15.32.040(B) of the regulations, and it also violated fundamental principles of land use and zoning law, which prevent land use permits such as this from being transferred when it approved Murphy's plan for relocation of its sign to 1901 State Street.
Both of these legal issues were recognized by a member of the commission who voted in opposition to Murphy's application. The member assigned the following reasons for denying Murphy's application: "(1) the project did not comply with the Site Plan Review standards of Sec. 14-2-5; and (2) There is no need for an additional billboard in an area where one already existing within 500 feet." (ROR 0360417, Exh. J, Sub-exh. 7, p. 6.) By allowing Murphy to relocate its sign to 1901 State Street, the commission not only violated local regulations and acted unfairly and upon invalid reasons, but it also divested Brentwood of the right to use its own property for erecting an advertising sign pursuant to § 15.32.040(B) of the regulations. Based upon the foregoing, the commission's first stated reason is arbitrary and illegal.
Reason two: the use of the premises for the installation of an off-premise advertising billboard is a permitted use in a LI zone
Section 11-9-1(d) of the regulations provides that off-premises signs may be erected in the LI zone by special permit only. Billboards are not permitted as of right in LI zone. Accordingly, Murphy was required to obtain a special permit to erect a new sign on 1901 State Street. The commission's second stated reason implies that Murphy had the opportunity to obtain a permit as of right. This is clearly an erroneous basis for approval. The defendants correctly point out that this court's function is not to indulge in a microscopic search for technical infirmities in the commission's action. Nevertheless, even if the commission did not intend to suggest that Murphy's use was permitted as of right, Murphy's application for a special permit, for the reasons discussed supra, violated local regulations and should not have been approved. The commission's second stated reason is not supported by the law.
The two assigned reasons for approving Murphy's application are not reasonably supported by the record. The commission acted on invalid reasons and its decision is not supported by the law. Accordingly, the plaintiffs' appeal, docket number CV 98 0354488, is hereby sustained.
B. The plaintiffs' ZBA appeal
This appeal concerns the ZBA's decision to uphold the denial of the plaintiffs' application for a certificate of zoning compliance and an application for a sign permit.
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 420.
"Generally, it is the function of a zoning board . . . 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 . . . In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal . . . Moreover, the plaintiffs bear the burden of establishing that the board acted improperly." (Citations omitted; internal quotation marks omitted.) Wood v. Zoning Board of Appeals, supra, 258 Conn. 697-98.
"Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes . . . [A]n agency's factual and discretionary determinations are to be accorded considerable weight . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law . . . These principles apply equally to regulations as well as to statutes." (Citations omitted; internal quotation marks omitted.) Id., 698-99.
Moreover, when the ZBA gives reasons for its decision, its decision "must be sustained if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence . . . to support any such reason [however] must be substantial." (Citations omitted; internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, supra, 258 Conn. 221.
Here, the ZBA gave four reasons for denying the plaintiffs' appeal. (ROR 0367043, Exh. 14.) The plaintiffs contend that Brentwood had an absolute right to have its application approved and the ZBA's reasons for denial were not supported by the record.
Reason one: the application was received beyond the appeal period
Brentwood and Shaw were both required to comply with local procedures and time limitations. The first reason the ZBA espoused for denying the plaintiffs' claim was that the application was received beyond the appeal period. "An appeal . . . to the zoning board of appeals . . . shall be taken . . . within thirty days [of the Commission' denial], by filing with the zoning commission or the officer from whom the appeal has been taken and with said board a notice of appeal specifying the grounds thereof." (Emphasis added.) General Statutes § 8-7. As the zoning enforcement officer (ZEO), Shaw was similarly compelled to act within a limited time frame. Regulations § 14-1-5 provides: "Within 15 days of receiving a complete application, the Zoning Enforcement Officer shall determine whether the proposed development has received all required approvals and/or otherwise conforms to these Regulations and any other pertinent law or regulation, and shall approve or deny the application accordingly in writing. If the application is denied, the writing shall state the reasons for the denial. The writing shall also inform the applicant that the disposition may be appealed to the Zoning Board of Appeals."
On January 28, 1999, William Shaw, the city planning engineer, sent a letter to the plaintiffs' attorney, Charles Campbell, Jr., stating: "the ZBA determined that your client has no vested rights to a new sign use on 1945 State Street Extension and a new sign would require a Special Permit under Sec. 11-9-2c of the Bridgeport Zoning Regulations." (ROR 0367043, Exh. 1, p. 9.) Attorney Campbell responded to this letter seeking clarification, noting:
"Although I assume that your letter was intended to be a denial of the applications, for legal reasons it is important that whatever action you have taken be expressed in a clear and unambiguous manner." (ROR 0367043, Exh. 1, p. 10.) Shaw replied to Attorney Campbell by letter dated February 8, 1999, attempting to clarify the commission's decision. (ROR 0367043, Exh. 1, p. 12.) On February 23, 1999, Attorney Campbell sent a letter to the ZBA stating, "I hereby appeal the January 28, 1999, and/or the February 8, 1999, decision of William A. Shaw `returning' the [petitioner's] Application . . ." (ROR 0367043, Exh. 1, p. 3.) It was not until March 22, 1999, that Shaw stated by letter: "if you believe I erred in my interpretation of the regulations, then it would be proper for you to assume my response to you as a denial of your application . . ." (ROR 0367043, Exh. 11, Sub-exh. 5.) At this time, the plaintiffs submitted another appeal on April 16, 1999, enclosing a fully executed petition to the board.
At this time, the plaintiffs did not, however, submit a fully executed petition to the board.
The ZBA held that the plaintiffs failed to submit their application on time. The record reveals, however, that the plaintiff sent a notice of appeal to the ZBA on February 23, 1999, within thirty days of the Commission's denial on January 28, 1999. General Statutes § 8-7 merely requires that an appealing party file with the commission "a notice of appeal specifying the grounds thereof." Although the defendants argue that the first notice of appeal ought to be disregarded because it did not comply with the "usual procedures of the Bridgeport Zoning Office;" (Defendants' Memorandum, p. 24.), it offers no guideline expounding the "usual procedures." General Statues § 8-7 requires the officer from whom the appeal has been taken (Shaw), to "forthwith transmit to . . . [the ZBA] all the papers constituting the record upon which the action appealed from was taken." In other words, the plaintiffs were not required to submit any papers to the ZBA. According to General Statutes § 8-7, therefore, the plaintiffs adequately notified the ZBA of its appeal.
The ZBA is endowed with liberal discretion and its conclusion can be overturned only if the court determines that the board acted in an unreasonable, arbitrary or illegal manner. Irwin v. Planning Zoning Commission, supra, 244 Conn. 628. The record reveals that the plaintiffs properly appealed from the commission's decision. The ZBA's first reason for denying the plaintiffs' appeal, therefore, is unreasonable, arbitrary and illegal because it is not supported by the record.
Reason two: sign location is in violation of the 1000-foot state regulation
The billboard signs at issue are prohibited from existing within 1000 feet of each other. Sign Ordinance § 15.32.040(B). 1945 State Street and 1901 State Street are adjacent properties. (ROR 0354488, Exh. A, p. 5.) The court found in section VIII, A of this memorandum that Murphy did not have a right to relocate the sign permits issued to 1945 State Street and that Brentwood had a vested right to apply for permits on its property. Murphy should not have been able to move its permits or divest the plaintiffs of their right to replace the existing structure on 1945 State Street. Accordingly, this argument is not supported by the law and must be rejected for reasons discussed more fully supra.
Reason three: applicant had no vested rights in the property at the time of the application
"Connecticut adheres to the title theory of mortgages." Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 201 n. 10, 708 A.2d 1371 (1998). "In Connecticut, a mortgagee has legal title to the mortgaged property and the mortgagor has equitable title, also called the equity of redemption . . . The equity of redemption gives the mortgagor the right to redeem the legal title previously conveyed by performing whatever conditions are specified in the mortgage, the most important of which is usually the payment of money . . . Under our law, an action for strict foreclosure is brought by a mortgagee who, holding legal title, seeks not to enforce a forfeiture but rather to foreclose an equity of redemption unless the mortgagor satisfies the debt on or before his law day." (Citations omitted; internal quotation marks omitted.) Barclays Bank of New York v. Ivler, 20 Conn. App. 163, 166, 565 A.2d 252, cert. denied, 213 Conn. 809, Page 696 568 A.2d 792 (1989). Therefore, "[a]s would be true for any mortgaged property in Connecticut before foreclosure, the [Brentwood's] title was a fee simple subject to defeasance by the defendants' exercise of their equity of redemption . . . Thus, [Brentwood's] title . . . was not absolute." New Milford Savings Bank v. Jajer, 244 Conn. 251, 258, 708 A.2d 1378 (1998).
On April 27, 1998, Brentwood submitted its application for a certificate of zoning compliance and an application for a sign permit. (Return of Record [ROR] 0360417, Exhibit 1, pp. 6, 8.) The final law day was June 2, 1998. (ROR 0360417, Exh. 1, p. 15.) At the time Brentwood submitted its application for zoning compliance, strict foreclosure judgment had already been entered in its name, however, absolute title to the property had not yet vested as the final law day had not yet come. See First National Bank of Chicago v. Luecken, 66 Conn. App. 606, 612-13, 785 A.2d 1148 (2001), cert. denied, 259 Conn. 915, 792 A.2d 851 (2002).
"Our case law has long established that [w]here a foreclosure decree has become absolute by the passing of the law days, the outstanding rights of redemption have been cut off and the title has become unconditional in the [redeeming encumbrancer]." (Internal quotation marks omitted.) First National Bank of Chicago v. Luecken, supra, 66 Conn. App. 612-13.
Nevertheless, Brentwood obtained legal title to 1945 State Street on January 26, 1998, when the judgment of strict foreclosure was entered by Thim, J. "A vested right is one that equates to legal or equitable title to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exception from a demand made by another." (Internal quotation marks omitted.) Oxford Tire Supply v. Commissioner, 253 Conn. 683, 694 n. 15, 755 A.2d 850 (2000). Although Brentwood's legal title to 1945 State Street was subject to the mortgagor's right of redemption at the time it submitted its applications, Brentwood had vested rights to the property at that time because it had obtained a judgment of strict foreclosure. Accordingly, the ZBA's holding was arbitrary, illegal or unreasonable because the ZBA incorrectly concluded that Brentwood did not have a vested right at the time it submitted its applications.
Reason four: The applicant failed to apply for a special permit as required under § 11-9-1d of the regulations
According to the plaintiffs, their application complied with all regulations and as a nonconforming use, it was not required to obtain a special permit and site plan approval under Regulations § 11-9-2. The defendants contend, however, that the plaintiffs did not have a nonconforming use right, nor did they comply with Regulations § 11-9-2(c).
Brentwood wanted to replace the sign structure on 1945 State Street with its own billboard sign. As discussed supra, although Brentwood did not have nonconforming use rights to operate a sign on 1945 State Street, Brentwood did have vested rights to the property at the time it filed its applications. Brentwood's vested rights included the right to erect a billboard sign on its property at 1945 State Street because Brentwood, as Mihalov's successor in interest, was entitled to the benefit of Mihalov's sign permit because permits run with the land and not the user of the land See Griswold Hills of Newington Limited Partnership v. Town Plan and Zoning Commission of the Town of Newington, supra, 14 Conn. L. Rptr. 405; Van Stone's Cypress v. Stratford Zoning Commission, supra, Superior Court, judicial district of Fairfield at Bridgeport. Brentwood's vested rights entitled it to continue to use the property for the same use. Under these facts, it was unnecessary for Brentwood to obtain a special permit. Thus, the ZBA's fourth reason for denying Brentwood's appeal is not supported by the record.
The ZBA issued four reasons for denying the plaintiffs' appeal. This court finds that these reasons are not supported by the record. Accordingly, the plaintiffs' appeal, docket number CV 99 0367043, is hereby sustained.
C. The Murphy ZBA Appeal
This appeal concerns the ZBA's decision to affirm Murphy's sign application for 1901 State Street. The standard of review here is the same as it was in the plaintiffs' ZBA appeal. In other words, the court must "determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." (Internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 420. This court may reverse the ZBA's decision if it finds that the ZBA acted in an unreasonable, arbitrary or illegal manner. Wood v. Zoning Board of Appeals, supra, 258 Conn. 697-98.
The plaintiffs contend that the ZBA should not have upheld the commission's decision to approve the Murphy sign application because it was not in compliance with local regulations. The ZBA assigned four reasons for its denial of the plaintiffs' appeal. (ROR 0360417, Exh. V.)
The four reasons were: (1) The zoning officer's decision to approve the Murphy application was correct as a legal opinion was sought from the city attorney in addition to the applicant receiving common council approval as well as a special permit from the commission; (2) There was no violation of the 1000-foot rule as the Murphy application was for a relocation of a sign located on 1945 State Street Extension to 1901 State Street Extension, and the approved plan showed the sign on 1945 to be removed; (3) Appellant (Barrett) has no vested rights to a new sign use on 1945 State Street Extension and a new sign would require a special permit under § 11-9-26 of the regulations; and (4) The existing sign use on 1945 State Street Extension is not a nonconforming use according to § 3-10-6 of the regulations.
For the same reasons that Murphy should not have been permitted to relocate its sign and permits to 1901 State Street, it likewise should not have been permitted to install a new sign on that site. The commission's decision to approve Murphy's application, therefore, violated the law. See part VIII, A for a more detailed discussion. The plaintiffs' appeal, docket number CV 99 0360417, is hereby sustained.
VIII. CONCLUSION
In summary, Murphy's application for a site plan and special permit to relocate its sign from 1945 State Street to 1901 State Street was erroneously approved. The commission's reasons for approving Murphy's application do not stand up to judicial review. Murphy's application for a sign permit, which was premised on Murphy's erroneous site plan and special permit approval, is likewise not supported by the law. Therefore, the plaintiffs' appeals, docket number CV 98 0354488 and docket number CV 99 0360417 are hereby sustained.
Brentwood also asks this court to sustain its appeal regarding its own request for a special permit and site plan approval to replace the existing sign at 1945 State Street. Brentwood's rights in the property located at 1945 State Street vested when it obtained a judgment of strict foreclosure. At that time, Brentwood became Mihavlov's successor in interest and was thereby entitled to continue to use the property for a billboard sign, as its predecessor's permit ran with the land Thus, the ZBA inappropriately denied Brentwood's applications. Accordingly, the plaintiff's appeal, docket number CV 99 036 70 43 is hereby sustained.
OWENS, JUDGE.