Schwartz v. Planning and Zoning Com'n of Town of Hamden

• Decision Date: 05 July 1988
• Docket Number: No. 13223,13223
• Citation: 543 A.2d 1339,208 Conn. 146
• Court: Connecticut Supreme Court
• Parties: Irene SCHWARTZ, et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF HAMDEN.

Page 1339

543 A.2d 1339

208 Conn. 146

Irene SCHWARTZ, et al. v.PLANNING AND ZONING COMMISSION OF the TOWN OF HAMDEN.

No. 13223.

Supreme Court of Connecticut.

Argued April 13, 1988.

Decided July 5, 1988.

Syllabus by the Court

The plaintiffs appealed to the trial court from a decision of the defendant planning and zoning commission of the town of Hamden denying their application for site plan approval to permit them to erect, at the entrance to a shopping plaza, a thirty-two foot high cylindrical structure made of brushed aluminum.That court dismissed the appeal holding, as the commission had held, that the structure was a "sign" within the meaning of the Hamden zoning regulations and, as such, did not conform to the regulation applicable to signs.On the plaintiffs' appeal, held:

1.The commission's claim that the town clerk was not served with the appeal was unavailing; although the citation did not direct the sheriff to summon the town clerk as a party for all purposes, it did direct the sheriff to serve the clerk with copies of the complaint and of the appeal citation and was legally sufficient to comply with the applicable statute(§ 8-8).

2.The commission and the trial court erred in holding that the structure was a "sign"; the structure did not attract attention to any use, product, service or activity as required by the regulation defining signs, and its placement at the entrance to the shopping area did not automatically transform it from a work of art into a sign.

Harriette K. Dorsen, pro hac vice, with whom were John Siegal, pro hac vice, Peter M. Sipples and, on the brief, Susan L. Jacobs, for appellants(plaintiffs).

Hugh I. Manke, Town Attorney, with whom, on the brief, was Edan F. Calabrese, for appellee(defendant).

Theodore M. Space, J. Russell Versteeg, Marcia D. Seeler and Wayne S. Henderson, of the Massachusetts Bar, filed a brief for Wadsworth Atheneum as amicus curiae.

Martin Margulies and Philip D. Tegler filed a brief for Connecticut Civil Liberties Union Foundation as amicus curiae.

Before SHEA, CALLAHAN, GLASS, COVELLO and HULL, JJ.

CALLAHAN, Associate Justice.

The plaintiffs, Irene Schwartz, David W. Bermant, Robert L. Bermant as trustee, Lois Zenkel and Richard J. Schwartz, as tenants in common doing business as Hamden Plaza, have filed the instant appeal from a judgment of the Superior Court dismissing their appeal from a decision of the planning and zoning commission of the town of Hamden(commission), wherein their application for a site plan approval was denied.The trial court found that a thirty-two foot high, brushed aluminum cylindrical structure entitled "Landmark" was a sign within the meaning of article II, § 210, of the Hamden zoning regulations, and as such, did not conform to the applicable regulations concerning signs.Consequently, the trial court held that the commission did not act illegally, arbitrarily or in abuse of its discretion in so finding and dismissed the plaintiffs' appeal.We find error.

The relevant facts are not in dispute.In August, 1985, National Shopping Centers, Inc.(NSC), filed an application for a site plan approval to erect a thirty-two foot high cylindrical structure with wind activated moving parts made of brushed aluminum entitled "Landmark" at the entrance to the Hamden Plaza shopping area located on Dixwell Avenue in Hamden.The commission held a public hearing on NSC's application and thereafter denied it.NSC appealed the commission's decision to the Superior Court claiming that its application to erect "Landmark" fully complied with the Hamden zoning regulations.On March 18, 1986, the trial court, Foti, J., remanded the matter to the commission for a rehearing because the initial public hearing was not transcribed or recorded.¹

The rehearing was held on June 3, 1986, and the commission again denied the application on the following basis: "(1) the structure's purpose is to attract attention, therefore it is indeed a sign according to the regulations [and](2) as a sign, it does not meet the requirements of the regulations, including Article 754, parts A and F."NSC again appealed to the Superior Court claiming that the commission had acted illegally, arbitrarily and in abuse of its discretion when it concluded that "Landmark" was a sign and that, as such, it failed to comply with the Hamden zoning regulations.In addition, NSC claimed that by denying its application, the commission had violated its constitutional rights to due process as guaranteed by the fifth and fourteenth amendments to the United States constitution and article first, § 11, of the Connecticut constitution, ² and to free expression as guaranteed by the first amendment to the United States constitution and article first, § 4, of the Connecticut constitution.

Prior to the appeal being heard, plaintiff's counsel filed a "Motion for Joinder and to Amend Name of PartyPlaintiff."He argued that through mistake and inadvertence, NSC was improperly named as owner of the shopping center property.Therefore, he sought to amend the appeal to designate the true owners as the plaintiffs in the appeal.The motion was granted by the trial court on March 2, 1987, and the plaintiffs filed a revised appeal, which is the subject matter of the instant appeal.³

The trial court dismissed the plaintiffs' revised appeal, holding that "Landmark" was a sign which failed to comply with the Hamden zoning regulations governing signs.In addition, the court held that the constitutional issues raised by the plaintiffs amounted to a per se attack on the ordinance itself, which is more properly raised not in an appeal, but rather in an independent proceeding.The plaintiffs' petition for certification to the Appellate Court was granted, and thereafter the appeal was transferred to this court, pursuant to Practice Book§ 4023.

The pivotal issue in this appeal is whether "Landmark" is a sign within the meaning of article II, § 210, of the Hamden zoning regulations, and therefore subject to the provisions governing signs under article VII, § 750 et seq. thereof.If we answer the question in the affirmative as did the commission and the trial court, the plaintiffs then claim that the application of the Hamden zoning regulations to a work of art such as "Landmark" violates the plaintiffs' constitutional right to freedom of expression under the first amendment to the United States constitution and article first, § 4, of the Connecticut constitution.⁴

Prior to addressing the substantive merits of the appeal, we must first address the jurisdictional issue posited by the defendant's motion to dismiss filed in this court on April 8, 1988.The commission moves to dismiss the appeal based upon this court's decision in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879(1987)(Simko I ), as affirmed bySimko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202(1988)(Simko II ).Specifically, the commission argues that "[t]he town clerk was not served with the appeal or the revised appeal in this matter; the clerk was merely given notice of the suit by the sheriff 'leaving with and in the hands of' the clerk the appeal and citation.In this way the sheriff attempted to serve the Planning and Zoning Commission of the Town of Hamden by using the town clerk as the Commission's agent for service of process....By Simko standards this service was legally insufficient."We disagree.

The instant appeal is factually distinguishable from Simko I and Simko II.In this case the appeal citation specifically directed the sheriff to serve, with true and attested copies of the complaint and the appeal citation, both the chairman or clerk of the planning and zoning commission of the town of Hamdenand the clerk of the town of Hamden.In addition, it is undisputed that, in fact, the sheriff, pursuant to the direction and authority contained within the citation, properly and timely served both the chairman of the commission and the clerk of the town of Hamden.Although the citation did not direct the sheriff to summon the town clerk of Hamden as a party for all purposes, it does comply with the purpose of the 1985amendment to General Statutes § 8-8(b), as interpreted in Simko II, supra, 383, 538 A.2d 202, which was "to ensure that the municipality will receive adequate notice [of the appeal] and have sufficient opportunity to be heard and protect the interests of the public where necessary."In addition, as we stated in Simko II, supra, 382, 538 A.2d 202, "the clerk of the municipality is a statutorily mandated, necessary party to the proper institution of an appeal and must properly be served with true and attested copies of the appeal."(Emphasis added.)Here, the service by the sheriff, who was acting pursuant to the lawfully issued citation, was legally sufficient.⁵Accordingly, the commission's motion to dismiss is denied.

Turning to the substantive merits of the appeal, the plaintiffs first argue that the commission, as well as the trial court, erred in determining that "Landmark" was a "sign" within the meaning of article II, § 210, of the Hamden zoning regulations.Specifically, the plaintiffs argue that "Landmark" is a sculpture, a work of art, which does not "attract attention to any use, product, service or activity" at the Hamden Plaza shopping area.To the contrary, the commission argues that the obvious purpose of "Landmark" is to attract attention to the Hamden Plaza shopping area and away from other shopping centers in the area.Therefore, the commission claims that "Landmark" is clearly a sign within the meaning of the regulation.We agree with the plaintiffs.

Generally, it is the function of a zoning board or commission 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.The trial court had...