Billboards Divinity, LLC v. Commissioner of Transportation
2012 Conn. App. LEXIS 59
Conn. App. Ct.2012Background
- In 1949, permit 1078 allowed two billboards on Bristol property at Route 72 and Divinity Street, within 660 feet of the right-of-way and visible from the highway.
- In 2006, Billboards Divinity, LLC bought the property; NextMedia Outdoors, Inc. held the existing billboards and permit under a long-standing lease that auto-renewed annually.
- Plaintiff terminated the lease in 2006; NextMedia removed the billboards on May 29, 2007, pursuant to its lease rights.
- NextMedia sought to remove permit 1078 from the state inventory, leading the department to cancel the permit on August 23, 2007.
- Plaintiff applied to erect two new billboards on August 24, 2007; the department denied on September 11, 2007, citing zoning as multifamily and a 100-foot proximity to a park, contrary to regulations.
- Plaintiff filed a writ of mandamus on February 1, 2008; the trial court granted summary judgment for defendants in January 2010, and plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the plaintiff’s nonconforming billboard use is a constitutionally protected property right. | Billboards were a prior nonconforming use; NextMedia’s removal does not extinguish that right. | Nonconforming rights require maintenance within regulatory limits; replacement of two new signs is not customary maintenance. | No protected constitutional right; court affirmed summary judgment for defendants. |
| Whether mandamus was proper to compel permit issuance. | Mandamus should compel issuance to continue nonconforming use. | Permit issuance is not ministerial and requires compliance with state/federal rules for nonconforming signs. | Mandamus improper; defendants entitled to summary judgment as a matter of law. |
| Whether replacing removed nonconforming billboards constitutes customary maintenance/repair under grandfather clause. | Replacement of old billboards is permissible maintenance to preserve nonconformity. | Replacement as new signs cannot be treated as maintenance/repair of existing nonconforming signs. | Replacement not protected as customary maintenance; nonconforming use terminated. |
| Whether the state/federal scheme permits new billboards on land zoned multifamily. | Zoning should permit continuation of nonconforming use consistent with grandfather clause. | Sign erection is prohibited in multifamily zones absent industrial/commercial zoning; regulations forbid the proposed project. | Proposed signs violate 23 U.S.C. 131(d) and Conn. Gen. Stat. 13a-123; permit not required. |
Key Cases Cited
- Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1 (2009) (addressing preservation of constitutional claims and preservation requirements)
- U.S. Bank National Assn. v. Iaquessa, 132 Conn. App. 812 (2012) (standard for appellate review of summary judgments)
- Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437 (1996) (claims not addressed or decided in trial court not reviewable on appeal)
- State v. Miller, 186 Conn. 654 (1982) (exceptional circumstances for reviewing unpreserved constitutional claims)
- Gold v. East Haddam, 290 Conn. 668 (2009) (summary judgment standard; need for concrete proof of material facts)