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Kutcha v. Arisian

Supreme Court of Connecticut

July 24, 2018

KATHLEEN KUCHTA
v.
EILEEN R. ARISIAN

          Argued November 7, 2017

         Procedural History

         Action to enjoin the defendant from violating certain zoning regulations of the city of Milford regulating, inter alia, the posting of signs, and for other relief, brought to the Superior Court in the judicial district of Ansonia-Milford, where Stephen H. Harris was substituted as the plaintiff; thereafter, the case was tried to the court, Stevens, J.; judgment in part for the plaintiff, from which the plaintiff appealed. Affirmed.

          Scott T. Garosshen, with whom was Karen L. Dowd, for the appellant (plaintiff).

          Eileen R. Becker, for the appellee (defendant).

          Palmer, McDonald, Robinson, D'Auria, Mullins and Kahn, Js. [*]

          OPINION

          McDONALD, J.

         ‘‘The outdoor sign or symbol is a venerable medium for expressing political, social and commercial ideas.'' (Internal quotation marks omitted.) Metromedia, Inc. v. San Diego, 453 U.S. 490, 501, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). The primary issue we must resolve in this case is whether General Statutes § 8-2, [1] which authorizes a municipality's zoning commission to regulate the height, size, and location of ‘‘advertising signs and billboards, '' permits a municipality to regulate signs erected on residential property that disparage a commercial vendor.

         The plaintiff, the zoning enforcement officer for the city of Milford, [2] appeals from the judgment of the trial court denying the plaintiff's request for permanent injunctions ordering the defendant homeowner, Eileen R. Arisian, to remove signs on her property that were not in compliance with city zoning regulations and precluding the defendant from occupying the property until she obtained certain certificates required after home improvements had been made to her residence.[3] We conclude that the defendant's signs are not ‘‘advertising signs, '' and, accordingly, the trial court properly concluded that municipal regulation of such signs is outside the scope of the authority granted under § 8-2. We further conclude that the trial court properly exercised its discretion when it declined to issue an injunction precluding the defendant from occupying the subject premises.

         I

         We first address the plaintiff's challenge to the trial court's conclusion that the city's zoning commission lacked authority to regulate the defendant's signs as ‘‘advertising signs'' under § 8-2. The following undisputed facts and procedural history are relevant to this issue.

         The defendant contracted with Baybrook Remodelers, Inc., for certain home improvements. Evidently dissatisfied with Baybrook's performance, the defendant erected three signs on her property. One sign stated: ‘‘I Do Not Recommend BAYBROOK REMODELERS.'' Two signs contained the caption: ‘‘BAYBROOK REMODELERS' TOTAL LAWSUITS, '' with bar graphs underneath the caption reflecting the number of lawsuits to which the contractor purportedly was a party.

         Thereafter, the plaintiff issued an order notifying the defendant that her signs violated city zoning regulations limiting the size, height, and number of signs per street line and ordering her to remove them.[4] See Milford Zoning Regs., art. V, §§ 5.3.3.3 (2) and 5.3.4.1. When the defendant still had not complied months later, the plaintiff commenced the present action, which sought to enjoin the defendant from maintaining the signs that did not comply with the zoning regulations. The defendant asserted a special defense that the city lacked authority to regulate her signs under § 8-2.

         The trial court denied the request for the injunction. The court found that the defendant's signs violated the restrictions on the size, height, and number of signs in the city's zoning regulations. The court nonetheless concluded that the city lacked authority to regulate the signs under § 8-2. It reasoned that the defendant's signs were not ‘‘advertising signs'' as previously defined by this court because they did not promote the sale of goods or services. This appeal followed.

         On appeal, the plaintiff asserts that an ‘‘advertising'' sign, as that term is used in § 8-2 and as that term is commonly defined, means any sign that makes a public announcement. According to the plaintiff, this broad definition is proper because it more fully aligns with the stated purposes of the zoning enabling statute than the narrower one adopted by the trial court. The plaintiff further asserts that this broader definition is proper because a narrower definition may constitute content based regulation in violation of the first amendment to the United States constitution. We disagree.[5]

         The meaning of the term ‘‘advertising signs'' is a matter of statutory construction, to which well settled principles and plenary review apply. Middlebury v. Connecticut Siting Council, 326 Conn. 40, 48, 161 A.3d 537 (2017). ‘‘In seeking to determine that meaning, General Statutes § 1-2z directs us to first consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of a statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .'' (Internal quotation marks omitted.) Gilmore v. Pawn King, Inc., 313 Conn. 535, 542- 43, 98 A.3d 808 (2014).

         In addition to these general principles, we must be mindful when construing § 8-2 that the grant of municipal authority to enact zoning regulations is in derogation of the common law. See City Council v. Hall, 180 Conn. 243, 248, 429 A.2d 481 (1980) (‘‘as a creation of the state, a municipality has no inherent power of its own. . . [and] the only powers a municipal corporation has are those which are expressly granted to it by the state'' [citations omitted]); see also Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 153, 543 A.2d 1339 (1988) (zoning regulations and ordinances are in derogation of common law). As such, this grant of authority ‘‘should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction.'' (Internal quotation marks omitted.) Ugrin v. Cheshire, 307 Conn. 364, 380, 54 A.3d 532 (2012).

         We begin our analysis with the observation that there is no definition of ‘‘advertising signs'' or ‘‘advertise'' anywhere in the General Statutes that provides guidance in the present case. But see General Statutes § 20-206g (a) (defining ‘‘ ‘advertise' '' for purposes of provision limiting advertisements by massage therapists by reference to inclusion of certain terms). However, as the trial court's decision in the present case reflects, this court has previously considered the meaning of this term.

         In Schwartz v.Planning & Zoning Commission, supra, 208 Conn. 153-54, the defendant commission was attempting to apply its zoning regulations to preclude the display of an artistic, cylindrical metal sculpture erected in front of a shopping plaza. We concluded that the sculpture was not a ‘‘sign'' as defined under the town of Hamden's zoning regulations, because, although it would attract the attention of passersby, it did not attract attention to a ‘‘ ‘use, product, service, or activity' '' as provided under the regulation's definition. Id., 154. We also noted, however, that the defendant commission's expansive interpretation was not consistent with the authority granted to it under § 8-2 to regulate ‘‘advertising signs and billboards.'' Id., 154-55. The court first referenced dictionary definitions of ‘‘advertise'' that it deemed most relevant: ‘‘to announce publicly esp[ecially] by a printed notice or a broadcast; [and] to call public attention to esp[ecially] by emphasizing desirable qualities so as to arouse a desire to ...


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