Schwartz v. Planning & Zoning Commission

543 A.2d 1339, 208 Conn. 146, 1988 Conn. LEXIS 170
CourtSupreme Court of Connecticut
DecidedJuly 5, 1988
Docket13223
StatusPublished
Cited by202 cases

This text of 543 A.2d 1339 (Schwartz v. Planning & Zoning Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schwartz v. Planning & Zoning Commission, 543 A.2d 1339, 208 Conn. 146, 1988 Conn. LEXIS 170 (Colo. 1988).

Opinion

Callahan, J.

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 com[148]*148mission’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 Party Plaintiff.” He argued that through mistake and [149]*149inadvertence, 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 Ham-den zoning regulations to a work of art such as “Land[150]*150mark” 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 by Simko 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 Ham-den 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 Hamden and 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 sum[151]*151mon the town clerk of Hamden as a party for all purposes, it does comply with the purpose of the 1985 amendment to General Statutes § 8-8 (b), as interpreted in Simko II, supra, 383, 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, “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.5 Accordingly, 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.

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Bluebook (online)
543 A.2d 1339, 208 Conn. 146, 1988 Conn. LEXIS 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartz-v-planning-zoning-commission-conn-1988.