Kroll v. Steere

• Court: Connecticut Court of Appeals
• Writing for the Court: SPEAR, J.
• Citation: Kroll v. Steere, 60 Conn. App. 376, 759 A.2d 541 (Conn. App. 2000)
• Decision Date: 10 October 2000
• Docket Number: (AC 19276)
• Parties: DONNA L. KROLL ET AL. v. KENNETH W. STEERE

60 Conn. App. 376

759 A.2d 541

DONNA L. KROLL ET AL. v. KENNETH W. STEERE

(AC 19276)

Appellate Court of Connecticut.

Argued May 8, 2000.

Officially released October 10, 2000.

Schaller, Spear and Pellegrino, Js. William C. Kroll, for the appellant (named plaintiff)

Ralph J. Monaco, with whom, on the brief, was Thomas J. Londregan, for the appellee (defendant).

Opinion

SPEAR, J.

The plaintiff Donna L. Kroll¹ appeals from the judgment of the trial court rendered after it granted the motion for summary judgment filed by the defendant, Kenneth W. Steere, the zoning enforcement officer of Groton Long Point Association, Inc., a municipal corporation. The plaintiffs amended complaint alleged that the defendant infringed on her right to free speech, and enforced a sign ordinance against her in a discriminatory and selective manner. The plaintiff raises ten claims in her brief, only three of which warrant review.² She claims that the summary judgment was improper because (1) there is a question of material fact as to whether a "mural" she placed on her property was a sign that was subject to the size limitation of § 3.20³ of the zoning regulations, (2) the sign size limitation improperly infringed on her constitutional right of free speech and (3) the court improperly found that the allegations of her amended complaint regarding selective and discriminatory enforcement of the sign ordinance were inadequate. We affirm the judgment of the trial court as to the first two claims. We reverse the judgment of the trial court on the selective enforcement claim.

We glean the following facts and procedural history from the court's memorandum of decision and the record. The plaintiff owned certain residential property in Groton Long Point. On or about August 1, 1997, the plaintiff placed a twenty square foot piece of plywood against her garage. On the plywood was a painting of two deer with the words, "Who Asked the Deer?" At an earlier time, the officers and directors of Groton Long Point Association, Inc., had recommended the adoption of an ordinance that allowed deer hunting with bows and arrows and shotguns.

The defendant contacted the plaintiff and ordered her to "cease and desist" by removing the alleged mural because it violated § 3.20 of the zoning regulations of Groton Long Point Association, Inc. The plaintiff then commenced an action against the defendant, alleging a violation of 42 U.S.C. § 1983.⁴ The plaintiff claimed that the cease and desist order improperly infringed on her right to freedom of speech pursuant to the United States and Connecticut constitutions, and that the defendant improperly and in a discriminatory manner engaged in selective enforcement of the zoning regulations against her despite the presence of many other signs in Groton Long Point that violated the size limitations of § 3.20. The defendant moved for summary judgment, and the court granted the defendant's motion. This appeal followed.

We first state our standard of review in summary judgment matters. "The standards governing our review of a trial court's decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn. App. 136, 145, 727 A.2d 219, cert. granted on other grounds, 248 Conn. 920, 734 A.2d 569 (1999).

"On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court's] conclusions are legally and logically correct and find support in the facts that appear in the record.... Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995). On appeal, however, the burden is on the opposing party to demonstrate that the trial court's decision to grant the movant's summary judgment motion was clearly erroneous. 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994). Kramer v. Petisi, 53 Conn. App. 62, 66-67, 728 A.2d 1097, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999)." (Internal quotations marks omitted) Tryon v. North Branford, 58 Conn. App. 702, 706-707, 755 A.2d 317 (2000).

I

The plaintiff first claims that there is a question of material fact as to whether her "mural" was a sign that could be precluded by the size limitations of § 3.20 of Groton Long Point Association, Inc., zoning regulations. We disagree.

Our review of the pleadings, affidavits and other documents in the record convinces us that there was no dispute about any of the physical characteristics of the subject piece of plywood and what was painted on it. The court properly concluded that it was a question of law whether the object was a mural or a sign. The plaintiff claimed that it was a "mural," but offered nothing other than her assertion to that effect. The court relied on Webster's New World College Dictionary (3d Ed.), which defines a mural as "a picture, esp. a large one, painted directly on a wall or ceiling, or a large photograph, etc; attached directly to a wall." There is no dispute that the piece of plywood was only placed against the plaintiffs garage wall; it was not a part of the wall. The plywood was movable, and the plaintiff in fact moved it to a different location. We cannot say that the court improperly rejected the plaintiff's claim that the piece of painted plywood was a mural.

Again, resorting to Webster's New World College Dictionary (3d Ed.), the court found that "sign" is defined as "[a] publicly displayed board, placard, etc. bearing information, advertising, a warning, etc." It is undisputed that the plaintiff wanted to convey the message that killing deer was wrong and that she was opposed to it. The word "sign" was not defined in the zoning regulations; therefore, it was proper for the court to adopt the ordinary meaning of the word. See Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 153, 543 A.2d 1339 (1988). We conclude that the plaintiffs claim is without merit.

II

The plaintiff next claims that even if the plywood board is considered a sign, the size limitation improperly infringed on her constitutional right to freedom of speech. She claims in her brief that § 3.20 is "unconstitutional in violation of the first and fourteenth amendments to the United States constitution." We disagree.

The plaintiff briefs and relies on a single case, Ladue v. Gilleo, 512 U.S. 43, 114 S. Ct. 2038, 129 L. Ed.2d 36 (1994). In Gilleo, an ordinance of the city of Ladue, a suburb of St. Louis, Missouri, banned, with ten exemptions, all residential signs. The plaintiff placed an eight and one-half inch by eleven inch sign in one of her windows stating: "For Peace in the Gulf." (Internal quotation marks omitted) Id., 46. Although the sign was within the one square foot size limitation of the city ordinance, it was not within one of the ten exemptions to Ladue's ban on residential signs.⁵ Id., 46-47. The United States Supreme Court held that the ordinance impermissibly violated the plaintiffs first amendment right of free speech. Id., 58-59. The court stated: "It is common ground that governments may regulate the physical characteristics of signs...." Id., 48. The problem in that case was that the city's regulation almost totally banned all residential signs in the interest of minimizing visual clutter and, therefore, its exemptions discriminated on the basis of the sign's content. Id., 55-56.

In contrast, § 3.20 makes no attempt to regulate the content of residential signs. The court correctly noted that "[t]he government has a significant interest in the regulation of signs in order to maintain the safety of vehicular traffic." The plaintiff concedes that her sign was designed to attract the attention of passing motorists. In Gillen, the United States Supreme Court pointed out that "[u]nlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation." Ladue v. Gilleo, supra, 512 U.S. 48. We conclude that the enforcement of § 3.20 of the zoning regulations did not infringe on the plaintiffs constitutional right to freedom of speech.

III

The plaintiff finally claims that the court improperly rendered summary judgment for the defendant on her claim that the defendant selectively enforced § 3.20 ofthe zoning regulations in a discriminatory fashion against her while allowing other signs to remain undisturbed. The court granted summary judgment as to this claim because "[t]his part of the [amended] complaint fails to plead facts which will provide the court with the identification of others similarly situated with which to compare the plaintiffs treatment and does not provide allegations as to the exact nature of the violations." As to this aspect of the summary judgment motion, the court treated it as a motion to strike and ruled that the allegations of the [amended] complaint were insufficient.⁶ When assessing whether the allegations of a complaint are legally sufficient pursuant to a motion to...