III LLC v. Hartford Planning and Zoning Commission (2013)

MEMORANDUM OF DECISION

I

On August 15, 2012, the plaintiff, Independent Outdoor III, LLC (Independent), instituted this action seeking a review of the defendant city of Hartford planning and zoning commission (commission)'s July 24, 2012 denial of an application to amend the Hartford zoning regulations (regulations) to reduce the required separation of digital billboards along interstate highways in Hartford from 650 feet to 500 feet.¹  Independent maintains that the commission's existing regulations conflict with and are preempted by General Statutes § 13a–123 ² and hence deprive Independent from using this technology on its nonconforming billboards.   On January 30, 2013, the commission filed this motion to dismiss, maintaining that Independent is not aggrieved and that the action should be dismissed.

II

A

General Statutes § 8–8(b) provides in relevant part:  “[A]ny person aggrieved by any decision of a board ․ may take an appeal to the superior court for the judicial district in which the municipality is located ․” “First, the party claiming aggrievement must 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 establish that this specific, personal and legal interest has been specially and injuriously affected by the decision.”  Hall v. Planning Commission, 181 Conn. 442, 444, 435 A.2d 975 (1980).  “One who claims to be aggrieved in a zoning matter must demonstrate that he has a specific, personal and legal interest in the subject matter of the decision ․ To have standing to apply for a permit, a nonowner must have substantial interests in the subject property ․ The question of aggrievement is essentially one of standing.”  (Citations omitted;  internal quotation marks omitted.)  Gladysz v. Planning & Zoning Commission, 57 Conn.App. 797, 804, 750 A.2d 507 (2000), rev'd on other grounds, 256 Conn. 249, 773 A.2d 300 (2001).  “When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant's action has invaded ․ Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved.”  (Citations omitted;  internal quotation marks omitted) Steeneck v. University of Bridgeport, 235 Conn. 572, 579, 668 A.2d 688 (1995).  “[I]t is not possible to extract a precise comprehensive principle which adequately defines the necessary interest which a nonowner must possess in order to have standing to apply for a special permit or a variance.   The decisions have not been based primarily on whether a particular applicant could properly be characterized as an optionee or a lessee, but, rather, on whether the applicant was in fact a real party in interest with respect to the subject property.   Whether the applicant is in control of the property, whether he is in possession or has a present or future right to possession, whether the use applied for is consistent with the applicant's interest in the property, and the extent of the interest of other persons in the same property, are all relevant considerations in making that determination.”  Richards v. Planning & Zoning Commission, 170 Conn. 318, 323, 365 A.2d 1130 (1976).

B

1

In a stipulation of facts dated April 9, 2013 (stipulation), the parties acknowledge that Independent has two billboard leases for properties in Hartford which abut the interstate highway.   One such lease, effective May 21, 2010 for a twenty-year term, allows Independent to own and operate a billboard at 1390–1400 Park Street, which is within 250 feet of I–84. The static billboard on that site is approximately 500 feet from another billboard.   The second lease, effective November 9, 2005 through February 20, 2028, allows Independent to own and operate three billboards on Weston Street, which is within 250 feet of I–91. The three billboards on this site are approximately 500 feet from another billboard.   If the proposed amendment had been adopted, Independent could have applied for a special permit to convert the static billboards to digital format.

2

The commission argues that Independent cannot prove classical aggrievement because the effect of the denial on Independent is no different than that on other entities in the community and further, it was not harmed by the decision to deny.   It maintains that Independent had no vested interest in the proposed amendment, merely by proposing it, or, for that matter, in the existing regulation, citing Marmah, Inc. v. Greenwich, 176 Conn. 116, 120–21, 405 A.2d 63 (1978) (court noted in reviewing whether town used legislative power appropriately that “[a] landowner does not have a vested right in the existing classification of his land” and that “[o]n the contrary, the enabling acts which authorize the enactment of zoning ordinances provide for the amendment of such ordinances”).   Further, it asserts that Independent is not aggrieved because it does not own the land upon which the billboards are located, referring to the definition in General Statutes § 8–8(a) that an “ ‘[a]ggrieved person’ means a person aggrieved by a decision of a board ․ In the case of a decision by a ․ planning and zoning commission ․'aggrieved person' includes any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.”

“This court has not set forth a precise standard that defines the required interest a nonowner must possess in order to become an aggrieved party under §§ 8–8 and 8–9.   Rather, we have held that the extent to which a party with an interest in the property other than that of an owner is aggrieved depends upon the circumstances of each case, because the concept of standing is a practical and functional one designed to ensure that only those parties with a substantial and legitimate interest can appeal an order.”  Primerica v. Planning & Zoning Commission, 211 Conn. 85, 93, 558 A.2d 646 (1989).   In that case, the applicant proposing a change to the zoning regulations sold the property after the case had been appealed to the trial court but retained certain leasehold interests.   The court found that the retained interest satisfied the specific, personal and legal interest required throughout the appeal proceedings.  Id., 94–95.   In the present case, as noted, Independent had a twenty-year lease for the Park Street property and a twenty-three-year lease for the Weston Street property.   Certainly that qualifies Independent as a party with a specific interest in the decision which is different from that of the community at large.   Following the commission's logic to the end, as all zoning regulations affect the community and as no one has a vested right, no one would be allowed to appeal.   Such is not the law.   In Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 899 A.2d 26 (2006), the court found that a party which had an oral agreement to enter into a lease if the commission approved the application was sufficient to establish aggrievement.   The court held:  “DiBonaventura [v. Zoning Bd. of Appeals, 24 Conn.App. 369, 370–71, 588 A.2d 244, cert. denied, 219 Conn. 903, 593 A.2d 129 (1991) ] is instructive inasmuch as it stands for the proposition that a landowner and a nonowner developer need not have a written, legally enforceable agreement when other facts, such as the existence of a credible, oral agreement, establish that the developer has a specific, personal stake in the property.”   Moutinho v. Planning & Zoning Commission, supra, 278 Conn. 668–69.   Of course, Independent has much more than simply an oral agreement to enter into a lease.   Its static billboards on long-term leased land do not meet the current 650–foot spacing requirement found in the regulations.   It has pled, and the parties have stipulated to, sufficient facts to meet the two prongs of classical aggrievement.  Lucas v. Zoning Commission, 130 Conn.App. 587, 591, 23 A.3d 1261 (2011).   The denial certainly causes injury to Independent's specific, personal and legal interest.   Whether Independent will be successful on the merits of this appeal is different than whether Independent has standing to bring this appeal.   As such, the commission's motion is denied.

Berger, J.

FOOTNOTES

FN1. Section 1007(7)(h) of the regulations states:  “Notwithstanding the foregoing, an existing static outdoor advertising sign may be converted to a changeable electronic sign at a radius not less than six hundred and fifty (650) feet from another static or changeable electronic outdoor advertising sign.”.  FN1. Section 1007(7)(h) of the regulations states:  “Notwithstanding the foregoing, an existing static outdoor advertising sign may be converted to a changeable electronic sign at a radius not less than six hundred and fifty (650) feet from another static or changeable electronic outdoor advertising sign.”

FN2. General Statutes § 13a–123 states 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, and except that those outdoor advertising signs, displays and devices which are more than six hundred sixty feet off the nearest edge of the right-of-way, located outside of urban areas, visible from the main traveled way of the system and erected with the purpose of their message being read from such main traveled way are prohibited ․“(c) 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 ․“(e) The following types of signs, displays and devices may, with the approval of and subject to regulations adopted by the commissioner, be permitted within the six-hundred-sixty-foot area of interstate, primary and other limited access state highways, except as prohibited by state statute, local ordinance or zoning regulation:(1) Directional and other official signs or notices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders and scenic and historical attractions which are required or authorized by law;  (2) signs, displays and devices advertising the sale or lease of the property upon which they are located;  (3) signs, displays and devices advertising activities conducted on the property on which they are located ․ Subject to regulations adopted by the commissioner and except as prohibited by state statute, local ordinance or zoning regulation signs, displays and devices may be erected and maintained within six hundred sixty feet of primary and other limited access state highways in areas which are zoned for industrial or commercial use under authority of law or located in unzoned commercial or industrial areas which areas shall be determined from actual land uses and defined by regulations of the commissioner.   The regulations of the commissioner in regard to size, spacing and lighting shall apply to any segments of the interstate system which traverse commercial or industrial zones wherein the use of real property adjacent to the interstate system is subject to municipal regulation or control, or which traverse other areas where the land use, as of September 21, 1959, was clearly established under state law as industrial or commercial.“(f) Notwithstanding the provisions of subsections (a) and (e) of this section, signage that may be changed at intervals by electronic or mechanical process or by remote control shall be permitted within six hundred sixty feet of the edge of the right-of-way of any interstate, federal-aid primary or other limited access state highway, except as prohibited by state statute, local ordinance or zoning regulation, provided such signage (1) has a static display lasting no less than six seconds, (2) achieves a message change with all moving parts or illumination moving or changing simultaneously over a period of three seconds or less, and (3) does not display any illumination that moves, appears to move or changes in intensity during the static display period ․“(h) Licenses or permits for outdoor structures, signs, displays or devices adjacent to interstate, primary federal-aid or other limited access state highways issued by the Commissioner of Emergency Services and Public Protection in accordance with chapter 411 shall be consistent with regulations and standards adopted under this section.”.  FN2. General Statutes § 13a–123 states 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, and except that those outdoor advertising signs, displays and devices which are more than six hundred sixty feet off the nearest edge of the right-of-way, located outside of urban areas, visible from the main traveled way of the system and erected with the purpose of their message being read from such main traveled way are prohibited ․“(c) 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 ․“(e) The following types of signs, displays and devices may, with the approval of and subject to regulations adopted by the commissioner, be permitted within the six-hundred-sixty-foot area of interstate, primary and other limited access state highways, except as prohibited by state statute, local ordinance or zoning regulation:(1) Directional and other official signs or notices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders and scenic and historical attractions which are required or authorized by law;  (2) signs, displays and devices advertising the sale or lease of the property upon which they are located;  (3) signs, displays and devices advertising activities conducted on the property on which they are located ․ Subject to regulations adopted by the commissioner and except as prohibited by state statute, local ordinance or zoning regulation signs, displays and devices may be erected and maintained within six hundred sixty feet of primary and other limited access state highways in areas which are zoned for industrial or commercial use under authority of law or located in unzoned commercial or industrial areas which areas shall be determined from actual land uses and defined by regulations of the commissioner.   The regulations of the commissioner in regard to size, spacing and lighting shall apply to any segments of the interstate system which traverse commercial or industrial zones wherein the use of real property adjacent to the interstate system is subject to municipal regulation or control, or which traverse other areas where the land use, as of September 21, 1959, was clearly established under state law as industrial or commercial.“(f) Notwithstanding the provisions of subsections (a) and (e) of this section, signage that may be changed at intervals by electronic or mechanical process or by remote control shall be permitted within six hundred sixty feet of the edge of the right-of-way of any interstate, federal-aid primary or other limited access state highway, except as prohibited by state statute, local ordinance or zoning regulation, provided such signage (1) has a static display lasting no less than six seconds, (2) achieves a message change with all moving parts or illumination moving or changing simultaneously over a period of three seconds or less, and (3) does not display any illumination that moves, appears to move or changes in intensity during the static display period ․“(h) Licenses or permits for outdoor structures, signs, displays or devices adjacent to interstate, primary federal-aid or other limited access state highways issued by the Commissioner of Emergency Services and Public Protection in accordance with chapter 411 shall be consistent with regulations and standards adopted under this section.”

Berger, Marshall K., J.