Capalbo v. Planning and Zoning Bd. of Appeals of Town of Greenwich

• Decision Date: 02 August 1988
• Docket Number: No. 13353,13353
• Citation: 547 A.2d 528,208 Conn. 480
• Court: Connecticut Supreme Court
• Parties: Frank M. CAPALBO et al. v. PLANNING AND ZONING BOARD OF APPEALS OF the TOWN OF GREENWICH. Frank M. CAPALBO et al. v. Jerry LANDSFELD.

Page 528

547 A.2d 528

208 Conn. 480

Frank M. CAPALBO et al. v. PLANNING AND ZONING BOARD OF APPEALS OF the TOWN OF GREENWICH.

Frank M. CAPALBO et al. v. Jerry LANDSFELD.

No. 13353.

Supreme Court of Connecticut.

Argued June 3, 1988.

Decided Aug. 2, 1988.

John H. Reilly, Asst. Town Atty., for appellants (defendant in each case).

Stewart I. Edelstein, with whom, on the brief, was Jeremiah R. Dineen, for appellees (plaintiffs).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN, GLASS, COVELLO and HULL, JJ.

PETERS, Chief Justice.

The principal issue in this case is whether General Statutes § 8-2 ¹ authorizes a municipality to enact a zoning regulation limiting the number of colors that may be contained in an outdoor advertising sign. The plaintiffs, Frank M. and Caroline Capalbo, appealed to the Superior Court from a decision of the named defendant, the planning and zoning board of appeals of the town of Greenwich (board), denying the plaintiffs a permit to erect their sign. The trial court consolidated this administrative appeal with the plaintiffs' separate action against the defendant Jerry Landsfeld, the Greenwich zoning enforcement officer, for a temporary order of mandamus compelling issuance of the sign permit. After a hearing, the trial court ruled in the plaintiffs' favor. The Appellate Court granted the defendants' petition for certification and, thereafter, this court transferred the appeal to itself pursuant to Practice Book § 4023. We find no error.

The relevant facts are undisputed. On March 20, 1986, the plaintiffs applied to the Greenwich zoning enforcement officer, the defendant Landsfeld, for a permit to erect a freestanding sign on their premises. The proposed sign consisted of a white background with three bands of different colors (red, orange and purple) surrounding a center portion containing black lines representing latitude and longitude. Below, in black, capital, roman letters, were the words "Realty World." By letter dated the same day, the zoning enforcement officer denied the application, stating as the sole reason that the sign contained more than three colors, in violation of § 6-169 of the building zone regulations of the town of Greenwich. ²

The plaintiffs appealed the decision of the zoning enforcement officer to the defendant board. The sole issue they raised before the board was whether § 6-169 of the building zone regulations, limiting the number of colors contained on a sign to three, including black and white, restricted the plaintiffs' use of their federally registered service mark in violation of the Lanham Act, 15 U.S.C. § 1121a. The board denied the appeal, ruling that § 6-169 did not conflict with the Lanham Act.

The plaintiffs then appealed to the Superior Court, claiming that § 6-169 impermissibly restricted the use of their federally registered service mark, violated various state and federal constitutional provisions and fell outside the scope of General Statutes § 8-2, which delegates specific zoning powers to municipalities. The trial court, ruling in the plaintiffs' favor, held that although § 6-169 did not conflict with the Lanham Act, it exceeded the power delegated to the municipality by General Statutes § 8-2, which empowers municipalities to regulate only the "height, size and location" of signs, but does not mention colors. The defendants' appeals contest the validity of this ruling.

I

Initially, we must decide if these appeals are properly before us. The appeal of the trial court's reversal of the board's decision is our first opportunity to consider the effect of the legislature's validating statute, Public Acts 1988, No. 88-79, ³ enacted in response to our recent decisions in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) (Simko I ), and Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (Simko II ). ⁴

In Simko I and Simko II, this court held that the chairman or clerk of the zoning board or commission, and the clerk of the municipality are necessary parties to the initiation of a zoning appeal to the Superior Court and that General Statutes § 8-8(b), as amended by Public Acts 1985, No. 85-284, requires the appellant to cite and serve both. Simko I, supra, 205 Conn. at 418-19, 533 A.2d 879; Simko II, supra, 206 Conn. at 377, 382, 538 A.2d 202; see also Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 69-70, 540 A.2d 59 (1988). Failure to comply strictly with the provisions of § 8-8 (b) renders the appeal subject to dismissal. Simko I, supra, 205 Conn. at 421, 533 A.2d 879; Simko II, supra, 206 Conn. at 383, 538 A.2d 202.

In this case the plaintiffs served the Greenwich town clerk with a copy of their appeal to the Superior Court, but did not cite the clerk as a party to the appeal. Thus, the Simko decisions would appear to subject their appeal to dismissal.

The legislature's recent supplement to § 8-8, however, seeks to save the many appeals invalidated by Simko I and Simko II. Public Acts 1988, No. 88-79. Pursuant to (3)(a) of the validating act, four conditions must exist for a zoning appeal to be validated: (1) it must have been taken on or after October 1, 1985; (2) it must have been taken prior to December 1, 1987; (3) a "final judgment" must not have been rendered prior to the effective date of the act (April 20, 1988); and (4) the appeal must be otherwise valid except that the appellant failed to name the clerk of the municipality as a party to the appeal. Although the plaintiffs' appeal to the Superior Court on June 9, 1986, readily meets the first and second conditions, it raises questions with regard to the third and fourth conditions.

The question concerning the third condition is whether the plaintiffs' appeal can meet its requirement that a "final judgment" must not have been rendered prior to the effective date of the act (April 20, 1988). Before that date, the trial court had rendered its judgment, certification of the defendants' appeal had been granted, and the case had been transferred to this court for final disposition. The defendants contend that the trial court's decision was a "final judgment" and that the act therefore does not validate this appeal. The plaintiffs, on the other hand, argue that a judgment appealed to this court is not "final" until this court rules on it.

"In our construction of the applicable statutory language, our goal is to 'ascertain and give effect to the apparent intent of the legislature.' State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987). In reaching this goal, we consider first whether the language of the statute yields a plain and unambiguous resolution. Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). Any latent ambiguity in the statutory language itself is normally resolved by turning for guidance to the legislative history and the purpose the statute is to serve. State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986)." State v. Champagne, 206 Conn. 421, 428, 538 A.2d 193 (1988).

The term "final judgment" is not "plain and unambiguous." Indeed, as we have noted in the past, the effect of a pending appeal upon an otherwise final judgment is " '[o]ne of the most troublesome problems in applying the rule of finality ...' because in this area ... '[t]here are no technically precise and universally recognized rules....' " Preisner v. Aetna Casualty & Surety Co., 203 Conn. 407, 413-14, 525 A.2d 83 (1987), quoting F. James & G. Hazard, Civil Procedure (3d Ed.1985) § 11.4, p. 592; see also Enfield Federal Savings & Loan Assn. v. Bissell, 184 Conn. 569, 573, 440 A.2d 220 (1981). We therefore turn to the act's legislative history to discern the intended meaning of "final judgment."

The legislative history of the validating act reflects its overarching purpose of ensuring a hearing and decision on the merits for zoning appeals otherwise subject to dismissal on Simko grounds. The principal proponents of the act, in both houses of the General Assembly, clearly articulated this purpose. In the House of Representatives, Representative Richard D. Tulisano explained that "the bill would have the effect of allowing them [the appellants] to have their cases tried on the merits or heard on the merits." H.R.Proc., Wednesday, March 23, 1988, p. 22. In the Senate, Senator Anthony V. Avallone stated: "I believe it is ... appropriate in our system of jurisprudence for the parties to have, wherever appropriate, a hearing on the merits and to have their decisions or their rights effected by a hearing only after it has been heard on the merits, and this bill would effectively do that." S.Proc., April 6, 1988, p. 56. Consistently, Senator Avallone noted that the act would not permit the reopening of cases where there had been a final hearing and judgment on the merits. Id., p. 69. ⁵

In light of this legislative history, and the legislature's undoubted intent to validate zoning appeals that had run into Simko difficulties, we reject the defendants' argument that the legislature meant to exclude cases on timely appeal from the ambit of Public Acts 1988, No. 88-79. ⁶ A functional construction of the term "final judgment" is consistent with usage that we have found appropriate in other cases. "In the absence of universally applicable rules, we have recognized that the relationship between a pending appeal and a judgment depends upon the nature of the issue that is to be addressed. Accordingly, a trial court judgment has been held to be final, despite a pending appeal, insofar as the issue was the triggering of the statute of limitations; Varley v. Varley, 181 Conn. 58, 60-61, 434 A.2d 312 (1980); the continuing validity of interlocutory alimony orders; Saunders v. Saunders, 140 Conn. 140, 146, 98 A.2d 815 (1953); or the applicability of the rules of res judicata. Salem Park, Inc. v. Salem, 149 Conn. 141, 144, 176 A.2d 571 (1961). In [ Enfield Federal Savings & Loan Assn. v. Bissell, supra, 184 Conn. at 573-74, 440...