Opinion
No. CV06 401 63 12 S, CV06 401 84 53 S
January 25, 2008
MEMORANDUM OF DECISION
Fairfield Commons, LLC is the owner of property located at 1250 Kings Highway, Fairfield. The parcel consists of approximately 3.6 acres (156,775 sq. ft.) and is located in a Designated Commercial District.
The property is bounded by the Metro North Railway to the west, and a Super Stop Shop to the south. On the westerly side of the property, adjacent to Kings Highway Cutoff and the entrance to the Stop Shop, an outdoor advertising sign owned by the Lamar Company of Connecticut, LLC is situated.
The billboard, which has stood on the property since the 1950s, is the subject of a lease agreement (Ex. 1), between Lamar Companies and the Estate of F. Francis D'Addario. The lease covers a span of fifteen (15) years, September 1, 2001 through August 31, 2016, and includes a provision for an extension for an additional five years.
This lease shall be for a term of fifteen (15) years from September 1, 2001 and ending August 31, 2016, unless sooner terminated as hereinafter provided.
"Following the original term of the lease, the term hereof shall he extended for an additional term of five (5) years upon the same terms and conditions unless the LESSEE shall give to LESSOR written notice of nonrenewal at least sixty (60) days prior to the end of the original term."
On January 23, 2006, Fairfield Commons, LLC filed an application (ROR 5) with the Fairfield Town Plan and Zoning Commission, seeking a special permit in order to construct a 36,000 square foot retail building on the property. Utilization of the property for retail purposes is a permitted use in a Designated Commercial District.
Section 12.4.26, Zoning Regulations, Town of Fairfield.
A previous application in 2005, which sought approval of a shopping center was denied by the Zoning Commission, based upon concerns regarding the location of the proposed driveway (ROR 14, p. 304).
On March 14, 2006, the Fairfield Town Plan and Zoning Commission held a public hearing concerning Fairfield Commons, LLC's special permit application, along with an application for Coastal Site Plan Review. The bulk of the testimony concerned traffic near the site, particularly the ingress and egress to Kings Highway Cutoff.
On April 11, 2006, the commission discussed the special permit application in depth (ROR 18). During the course of the discussion, it was stated that Fairfield Commons, LLC had agreed to remove the billboard, and that the special permit application would be conditioned upon the removal of the structure.
The commission voted, 6-1, to approve the special permit application, subject to ten (10) conditions (ROR 16, p. 1-2). One of the conditions, Condition 5, reads: "The existing billboard shall be removed."
Notice of the decision was published in the Fairfield Citizen News on April 14, 2006 (ROR 22).
Lamar Company of Connecticut, LLC appealed, seeking the removal of the condition applicable to its billboard (CV06 4016312 S). Named as defendants in the appeal are the Fairfield Town Plan and Zoning Commission, and Fairfield Commons, LLC.
Subsequent to the March 14, 2006 public hearing, and the April 11, 2006 commission action, counsel for Fairfield Commons, LLC learned that the billboard located at 1250 Kings Highway Cutoff is the subject of a long-term lease (Ex. 1). At the time of the public hearing and the commission's voting session, Fairfield Commons, LLC believed that the billboard was subject to a month-to-month lease.
Fairfield Commons, LLC proceeded to initiate discussions with Lamar, in order to determine whether arrangements for the immediate removal of the billboard could be negotiated. The attempt proved futile.
After the unsuccessful discussions with Lamar, Fairfield Commons, LLC on June 8, 2006, submitted a second application to the Fairfield Town Plan and Zoning Commission.
This application (ROR 1) sought the removal of Condition 5 from the commission's April 11, 2006 site plan and special permit approval. The application acknowledged that representatives of Fairfield Commons, LLC were mistaken, when they informed the commission that the billboard could be removed, because the lease with Lamar could be terminated.
The commission held a public hearing on August 8, 2006, concerning the application to remove Condition 5. At the hearing, counsel for Fairfield Commons, LLC acknowledged that the condition had been agreed to, based upon the erroneous belief that the structure could be removed. He also acknowledged the commission's right to impose the condition. (ROR 6, p. 2.)
At the August 8 hearing it was suggested that the commission might amend Condition 5, to require that it became effective upon the termination of the lease between Fairfield Commons, LLC and Lamar (ROR 6, p. 9).
At the continued hearing on September 26, 2006, the commission received information, stating that the continued presence of the billboard would not create a traffic safety danger (ROR 11, p. 4-7). No one testified in opposition to the application.
On October 10, 2006, the commission defeated a motion to approve the application seeking removal of Condition 5. Three commissioners voted in favor of the motion, and four were opposed. (ROR 13, p. 2.) The commission gave no reasons for its action.
Notice of the decision was published in the Fairfield Citizen News on October 13, 2006. An appeal of the decision by Fairfield Commons, LLC followed (CV06 4018453 S).
Because both appeals concern the same property, and the same special permit application, they were consolidated for purposes of trial.
LAMAR COMPANY OF CONNECTICUT, LLC IS AGGRIEVED BY THE APPROVAL OF THE SPECIAL PERMIT WITH CONDITION FIVE (5) AND HAS STANDING TO CHALLENGE THE CONDITION BY WAY OF APPEAL
A party claiming aggrievement must satisfy a well-established two-fold test: 1) the party must show that it has a specific personal and legal interest in the subject matter of the decision, as distinct from a general interest such as concern of all members of the community as a whole, and 2) the party must demonstrate that its specific personal interest has been specifically and injuriously affected by the action of the commission. Primerica v. Planning Zoning Commission, 211 Conn. 85, 93 (1989); Mystic Marinelife Aquarium, Inc. v. Gill, 175, Conn. 483, 493 (1978).
Aggrievement is jurisdictional, and a prerequisite for maintaining an appeal. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 307 (1991). The question of aggrievement, is one of fact. Hughes v. Town Planning Zoning Commission, 156 Conn. 505, 508 (1968).
Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest has been affected. Pomazi v. Conservation Commission, 220 Conn. 476, 483 (1991); O'Leary v. McGuinness, 140 Conn. 80, 83 (1953). Whether a party holds legal title to property, or even whether a party has a legally enforceable interest in the property, does not control the determination of aggrievement. Antenucci v. Hartford Roman Catholic Dioceses Corporation, 142 Conn. 349, 355 (1955); DeBonaventura v. Zoning Board of Appeals, 24 Conn.App. 369, 376 (1991). Even the holder of a security interest may be aggrieved. Goodridge v. Zoning Board of Appeals, 58 Conn.App. 760, 767 (2000).
As the lessee (Ex. 1) of an interest in 1250 Kings Highway Cutoff, Lamar Company of Connecticut, LLC has a specific and personal interest in the property. A lessee of an interest in real property has been found to be an aggrieved party, assuming that the interest has been specifically and injuriously affected. Primerica v. Planning Zoning Commission, supra, 94; Michel v. Planning Zoning Commission, 28 Conn.App. 314, 324-25 (1992).
Because the location of the billboard at 1250 Kings Highway Cutoff is a lawful nonconforming use of the property, and Condition 5 seeks to terminate Lamar's lease with Fairfield Commons, LLC, it is found that Lamar's interest has been specifically and injuriously affected.
It is therefore found that Lamar is aggrieved by the decision of April 11, 2006, from which its appeal arises.
The defendant Fairfield Town Plan and Zoning Commission claims, notwithstanding its status as an aggrieved party, that Lamar lacks standing to challenge the specific condition, Condition 5, because the condition is only binding upon Fairfield Commons, LLC, the applicant for the special permit.
This claim is without merit.
While aggrievement and standing are related concepts, there are certain subtle distinctions. Aggrievement is concerned with whether one's interest in property has been affected by an agency's decision, while standing is concerned with whether the party making a claim is the real party in interest. Richards v. Planning Zoning Commission, 170 Conn. 318, 323 (1976); Loew v. Falsey, 144 Conn. 67, 74 (1956).
Claims of lack of standing are usually raised in connection with whether a party has a sufficient interest to apply, in zoning matters. The standard for whether a party has standing to apply in a zoning situation is less stringent than that applied in cases of aggrievement. Gladys v. Planning Zoning Commission, 256 Conn. 249, 257 (2001).
In Richards, several factors were identified for consideration, when a claim of lack of standing to apply for site plan approval is made: 1) whether the applicant is in control of the property, 2) whether the applicant is in possession of the property or enjoys rights of possession, 3) whether the use applied for is consistent with the applicant's interest in the properly, and 4) the extent of the interest of the other person in the property. Richards v. Planning Zoning Commission, supra, 223-24.
Lamar's ownership of the Billboard in question, its long-term lease with Fairfield Commons, LLC, and the condition of special permit approval eliminating the billboard, provide ample evidence to supply the necessary standing to challenge Condition 5.
The Fairfield Town Plan and Zoning Commission has cited no authority for the proposition that one with a leasehold interest, who has been found to be aggrieved by the action of an agency, lacks standing to challenge the action.
It is found that Lamar Company of Connecticut, LLC has standing to challenge the condition attached to the special permit, requiring removal of the billboard.
FAIRFIELD COMMONS, LLC IS AGGRIEVED BY THE REFUSAL OF THE FAIRFIELD TOWN PLAN ZONING COMMISSION TO REMOVE CONDITION FIVE (5) FROM THE SPECIAL PERMIT APPROVAL AND MAY CHALLENGE THE CONDITION IN ITS APPEALFairfield Commons, LLC, as owner of the property at 1250 Kings Highway, Fairfield, and the party bound by the terms of the lease agreement between Lamar and the Estate of F. Francis D'Addario, has a specific personal and legal interest in the subject matter of the removal of Condition 5 from the special permit issued on April 11, 2006 (Ex. 1, 2, 3 4).
The refusal of the Fairfield Town Plan and Zoning Commission to remove the condition has specifically and injuriously affected that interest.
It is therefore found that Fairfield Commons, LLC is aggrieved by the decision of the commission from which its appeal emanates.
The commission claims, however, that Fairfield Commons, LLC cannot challenge the validity of Condition 5 in this appeal, because it did not appeal from the decision of April 11, 2006, granting the special permit application with conditions. It argues that an applicant who agreed to a condition imposed by a zoning agency, cannot collaterally attack that condition in a later proceeding. Upjohn v. Zoning Board of Appeals, 224 Conn. 96 (1992).
This claim fails to resonate.
The record reveals that representatives of Fairfield Commons, LLC believed that they had the ability to remove the billboard, a lawful nonconforming use. They represented to the commission that the billboard was subject to removal, and Condition 5 was attached to the special permit as a result.
Only later did they realize the long-term nature of the lease arrangement (Ex. 1), and their inability to comply with Condition 5, absent the consent and cooperation of Lamar.
In Upjohn, the landowner in a zoning enforcement proceeding attempted to challenge a condition imposed years earlier, in connection with the approval of a wastewater treatment plant. One of the conditions imposed when the approvals were voted in February of 2003, required the applicant to submit a plan, with a timetable, for the elimination of future sludge production and the removal of existing sludge from the site.
Because the owner had failed to comply with the condition, in May of 1986, a cease and desist order was issued.
As a general rule, when a party has a statutory right of appeal, he may not bring an independent action to test the issue which would be examined in the appeal. Carpenter v. Planning Zoning Commission, 176 Conn. 581, 598 (1979).
The court in Upjohn, however, did not hold that a condition can only be attacked by way of a direct appeal under all circumstances. Instead, the court held: "We have ordinarily recognized that the failure of a party to appeal from the action of a zoning authority renders the action final, so that corrective action is no longer subject to review by a court." Upjohn Co. v. Zoning Board of Appeals, supra, 102.
The Upjohn court reasoned that a property owner could not accept the benefits of obtaining an approval with conditions, then challenge the validity of one of the conditions years later in an enforcement proceeding. The Appellate Court, when confronted with this issue, has reached the same conclusion. Spectrum of Connecticut, Inc. v. Planning Zoning Commission, 13 Conn.App. 159, 163 (1988).
The facts presented here do not involve a situation in which a condition was challenged only after it was violated, and the municipality sought to enforce it. Nor is it governed by those cases in which courts have refused to sanction a deliberate bypass of an available administrative remedy, before resorting to court action. Greenwich v. Kristoff, 180 Conn. 575, 518 (1980).
Instead, Fairfield Commons, LLC, before acting on the special permit, sought to eliminate Condition 5 by asking the zoning authority which imposed the condition, to reconsider. The application to remove the condition was made within two months after it was imposed, and the basis of the application was a mistake concerning the terms of the operative lease agreement.
It was appropriate, for the commission to be given an opportunity to remove the condition, prior to initiating legal action, and Fairfield Commons, LLC should not be disadvantaged for pursuing that course.
Furthermore, Fairfield Commons, LLC is a named defendant in the action brought by Lamar — a direct appeal from the granting of the special permit. The condition at issue, has been challenged, by way of a direct appeal.
Therefore, Fairfield Commons, LLC may properly challenge Condition 5 as part of this appeal.
STANDARD OF REVIEW — SPECIAL PERMIT
When acting upon an application for a special permit, a planning and zoning commission sits in an administrative capacity, not in a legislative or quasi-judicial capacity. A.P.W. Holding Corporation v. Planning Zoning Board, 167 Conn. 182, 184-85 (1974); Farina v. Zoning Board of Appeals, 157 Conn. 420, 422 (1969).
A special permit allows a property owner to use property in a manner expressly permitted by the zoning regulations. A permit is required, because the nature of the proposed use is such that its exact location and mode of operation must be regulated, because of unique factors. CT Page 1349 Whisper Wind Development Corporation v. Planning Zoning Commission, 32 Conn.App. 514, 519 (1993). Although a commission has no discretion but to approve an application for a special permit if the regulations and statutes are satisfied; Westport v. Norwalk, 167 Conn. 151, 155 (1974); the special permit process is not purely ministerial. A municipal land use agency has a right to interpret its regulations, to determine whether general standards concerning health, safety and welfare, contained in the regulations, have been satisfied. Irwin v. Planning Zoning Commission, 244 Conn. 619, 627 (1998).
On factual questions, a court cannot substitute its judgment for that of the zoning agency. Timber Trails Corporation v. Planning Zoning Commission, 222 Conn. 380, 401 (1992). The burden is on the party challenging the action to show that the commission acted unreasonably, or illegally. Baron v. Planning Zoning Commission, 23 Conn.App. 255, 257 (1990).
Special permits, including conditions, are authorized pursuant to § 8-2 of the General Statutes. The agency is limited to imposing conditions authorized by the zoning regulations themselves, and those authorized by § 8-2 which are necessary to protect the public health, safety, convenience and property values. Housatonic Terminal Corporation v. Planning Zoning Board, 168 Conn. 304, 307 (1975).
Section 8-2, C.G.S.-". . . The regulations . . . may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit . . . subject to standards set forth in the regulations, and conditions necessary to protect the public health, safety, convenience and property values . . ."
When a commission has stated reasons for its decision, a reviewing court is charged only with determining whether any of the assigned reasons are reasonably supported by the record. Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 111 (1996). However, the failure of a commission to state reasons for its decision is not fatal. Where no reasons have been stated as the collective reasons of the agency, a court should search the record to determine whether it contains a basis for the decision reached. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369 (1988); Parks v. Planning Zoning Commission, 178 Conn. 657, 662 (1979).
Conclusions reached by the commission must be upheld, if they are supported by substantial evidence in the record. Substantial evidence is enough evidence to justify, if the trial were to a jury, the refusal to direct a verdict where the conclusion to be drawn is one of fact. Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 541 (1987). The possibility of drawing two inconsistent conclusions does not prevent a decision from being supported by substantial evidence. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993).
CONDITION FIVE (5) IS VOID, IN THAT ITS FULFILLMENT IS BEYOND THE CONTROL OF BOTH THE APPLICANT AND THE COMMISSION
Requiring that the existing billboard "shall be removed" by Fairfield Commons, LLC is a condition of the special permit approval which cannot be satisfied, without the approval and consent of Lamar. The applicable lease runs until 2016, and contains no provisions for termination at an earlier date.Section 2.23.5 of the Fairfield Zoning Regulations (p. 10), provides that approval of a site plan shall be ". . . conditioned upon completion of the proposed use in accordance with the Zoning Regulations within a period of two (2) years from the date of . . . approval."
Three extensions of one year each are possible, but are within the discretion of the commission. Therefore, the proposed use must be completed within two years of approval or the determination of a judicial appeal, with a maximum of three additional years available by way of extensions.
See § 2.23.6 (F 10) and § 25.7 (p. 74).
By imposing Condition 5 on Fairfield Commons, LLC's special permit approval, the commission imposed a requirement with which the property owner could not comply. When a commission makes approval of an application subject to a condition, the control of which is not in the control of either the commission or the applicant, the condition is void. Carpenter v. Planning Zoning Commission, supra, 592-93. Conditions which are impossible to satisfy are unreasonable, and may not be imposed by a zoning authority. Vaszausakas v. Zoning Board of Appeals, 215 Conn. 58, 65 (1990).
This principle has been applied where a municipal agency conditions a change of zoning classification upon future action by agencies over which the zoning commission has no control, unless the necessary action appears to be a probability. Stiles v. Town Council, 159 Conn. 212k 221 (1970); Luery v. Zoning Board, 150 Conn. 136, 145 (1962).
Here, the Lamar Company of Connecticut, LLC, was not a party to the special permit application. It holds a valid and enforceable leasehold interest in the property until 2016. Use of the portion of the parcel for outdoor advertising purposes constitutes a valid nonconforming use.
There is no basis for finding that Lamar has agreed to acquiesce to Condition 5, as its appeal of the granting of the special permit demonstrates.
Therefore, both appeals must be sustained, to the extent that they have challenged the validity and enforceability of Condition 5 as adopted by the Fairfield Town Plan and Zoning Commission.
THE EXISTING BILLBOARD IS NOT IMMUNE FROM REGULATION IN THE SPECIAL PERMIT PROCESS, DUE TO ITS STATUS AS A PREEXISTING NONCONFORMING USE
In order to qualify as a nonconforming use, two characteristics must be present: 1) the use must be a lawful use, and 2) it must have been in existence at the time the zoning regulation making the use nonconforming was enacted. Helicopter Associates, Inc. v. Stanford, 201 Conn. 700, 712 (1986); Bianco v. Darien, 157 Conn. 548, 558-59 (1969). The billboard which is the subject of Condition 5 has been situated in its present location since the 1950s, and satisfies this test.
Nonconforming uses are given express statutory protection. Section 8-2 of the General Statutes provides: ". . . regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations."
Where a nonconformity exists, it is a vested right, and adheres to the land itself. Because a nonconforming use in a property right, any statute or ordinance which takes away that right is an unreasonable manner, or in a manner not grounded on the public welfare, is invalid. Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 484 (1979).
The Town of Fairfield cannot through its zoning ordinances or regulations, the exercise of its legislative powers, reduce or eliminate a lawful nonconforming use. However, Condition 5 was imposed as part of the special permit process, a process which permits a property owner to use his property in a way which conforms to the regulations, subject to reasonable conditions authorized by the applicable regulations and statutes.
Lamar and Fairfield Commons, LLC cite Beckish v. Planning Zoning Commission, 162 Conn. 11 (1971), in support of their claim that the billboard, as a valid nonconforming use, cannot be regulated.
This contention is not well taken.
Unlike the situation in Beckish, the billboard which the Fairfield Town Plan and Zoning Commission seeks to regulate is a part of the property which is governed by the special permit.
Beckish involved an attempt to extend an existing nonconforming use in a building, to include the remaining unoccupied floor space in the same building. The special permit was granted, subject to the removal of two free standing signs located outside the building. The applicant challenged the imposition of those conditions.
The court determined that the conditions were invalid, and that the issue of the freestanding exterior signs was not properly before the commission, and could not be addressed in an application involving only the interior of a building where an existing nonconforming use existed. Beckish v Planning Zoning Commission, supra, 16.
Here, the special permit application concerns Fairfield Commons LLC's entire parcel, including the portion of the property on which the billboard is located. Fairfield Commons, LLC is seeking to improve and develop its property in conformance with the zoning regulations, while the Beckish applicants were attempting to expand a nonconforming use in an already existing building.
Although nonconforming uses must be respected, their continuation is not favored. It is a general principle of zoning that nonconforming uses should be abolished, or reduced to conformity as quickly as the fair interests of the parties will permit. Hyatt v. Zoning Board of Appeals, 162 Conn. 379, 383-84 (1972). In no case, should they be allowed to increase. Salerni v. Schevy, 140 Conn. 566, 570 (1954).
Fairfield Commons, LLC seeks to utilize the existing zoning regulations, and the special permit process provided by those regulations, to erect a new 36,000 square foot building, which will be used for retail purposes. The property is described as "a gateway to our Downtown Business District." (ROR 5, p. 2.)
Given these circumstances, consideration by the Fairfield Town Plan and Zoning Commission of a nonconforming structure situated on the property, is necessary, appropriate, and authorized pursuant to § 8-2 of the General Statutes, and the applicable municipal regulations. It is also consistent with the policy concerning the elimination or reduction of nonconforming uses to conformity, as the interest of the parties permit. Hyatt v. Zoning Board of Appeals, supra.
Therefore, although the condition as approved by the Fairfield Town Plan and Zoning Commission is void, the commission has jurisdiction to consider the nonconforming billboard, when evaluating Fairfield Commons LLC's special permit application.
CT Page 1353
ELIMINATING THE CONDITION WHICH MANDATED REMOVAL OF THE BILLBOARD DOES NOT AFFECT THE VALIDITY OF THE SPECIAL PERMIT, APPROVED BY THE COMMISSION
Counsel for Fairfield Commons, LLC conceded, during the September 26, 2006 public hearing, in which the removal of Condition was sought, that the commission had the authority to impose conditions involving the billboard (ROR 11, p. 6). He based this statement on aesthetic considerations.The commission, in denying the application to eliminate Condition 5, failed to state any collective reason or reasons for its decision. The court is, therefore, required to search the record to determine whether substantial evidence exists, to sustain the decision reached by the commission.
It is also necessary to determine whether the elimination of Condition 5, is sufficient to invalidate the issuance of the special permit.
This involves an analysis of the significance of Condition 5, in the context of the overall project.
The court has reviewed both the record compiled when the special permit was issued, and the hearing which was conducted concerning Fairfield Commons LLC's attempt to remove Condition 5.
The review reveals no evidence which would support a finding that the billboard poses a traffic safety hazard.
Fairfield Commons, LLC presented evidence at the September 28, 2006 hearing, in support of its contention that the billboard did not constitute a menace or a danger in the area of traffic safety. The testimony revealed that the billboard poses no impairment to the site line for traffic entering and leaving the property, and it is situated 35 feet from where any obstruction would occur. (ROR 11, p. 4-5.)
Although an agency is not required to believe any witness, even an expert; Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697 (1980); the records compiled during all of the hearings produced no evidence, lay or expert, to support any condition concerning the billboard based upon any alleged traffic safety problem.
However, there is substantial evidence in the record, from which the commission could impose conditions concerning the billboard, pursuant to § 27.4.1 of the Fairfield Zoning Regulations.
That regulation provides:
The proposed use, buildings and structures shall conform to the following standards:
27.4.1 the location, type, character, and size of use and buildings and structures shall be in harmony with and conform to appropriate and orderly development of the Town and the neighborhood and not hinder or discourage appropriate development and use of its property or impair its value.
There is substantial evidence in the record, to indicate concern for the architectural features of the proposed construction, and the relationship of the proposed development to surrounding properties. (ROR 14, p. 7-11.) The commission was fully justified in considering and evaluating the nonconforming billboard, in that context, as acknowledged by counsel for Fairfield Commons, LLC.
However, a review of the record also unambiguously reveals that consideration of the billboard, for aesthetic purposes, was not central to the decision concerning the issuance of the special permit to Fairfield Commons, LLC.
The only significant discussion concerning the billboard occurred during the commission's voting session (ROR 17, p. 18). The applicant had agreed to remove the billboard, based upon the mistaken belief that it was subject to a month-to-month lease.
The commission member who raised the issue was even unsure as to whether the billboard should be included in the conditions attached to the special permit.
The fact that Condition 5 is void, as unenforceable, is not sufficient, therefore, based upon the facts and information contained in the record, to void a special permit which is otherwise fully compliant with the applicable regulations.
The commission may, therefore, regulate the billboard through conditions. However, it must recognize and respect the rights of Lamar to utilize the nonconforming structure until 2016.
CONCLUSION CT Page 1355
Both appeals are SUSTAINED, to the extent that they seek to invalidate Condition 5 of the special permit issued by the Fairfield Town Plan and Zoning Commission to Fairfield Commons, LLC.Since the invalidity of Condition 5 does not affect the decision to issue the special permit, both matters are remanded to the defendant Fairfield Town Plan and Zoning Commission for further action.
The commission is ordered to grant the special permit, without the invalid condition, Condition 5.
Because regulation of the billboard is permissible, however, based upon the record compiled in all public hearings, the commission may require removal of the billboard as a condition of issuing the special permit. However, it may do so only to the extent that it does not interfere with the right of Lamar to maintain and utilize the billboard, through the term of its existing lease (Ex. 1).
The commission, on remand, may either grant the special permit without any reference to the billboard, or it may condition the special permit on removal of the billboard, following the expiration of the existing leasehold interest of Lamar.
Such a condition would not be void, and would be upheld, given the desire of Fairfield Commons, LLC to construct a 36,000-square-foot building for retail use.
The billboard's status as a lawful preexisting nonconforming use may not be utilized to prevent its removal, as agreed to by the property owner, following the expiration of Lamar's lease.