Highland Street Associates v. Commissioner of Transportation

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HIGHLAND STREET ASSOCIATES
ET AL. v. COMMISSIONER OF
TRANSPORTATION ET AL.
(AC 44330)
Bright, C. J., and Cradle and DiPentima, Js.
Syllabus
The plaintiffs, two entities that, respectively, owned a parcel of real property
and a billboard located on that property, sought a declaratory ruling
from the trial court pursuant to statute (§ 4-175) following the failure
of the defendant Department of Transportation to act on their petition
for a declaratory ruling that they could replace the billboard’s existing
support structure. The billboard, which was located in a residential zone
within 660 feet of a federal highway and had been erected prior to
1968, was a nonconforming grandfathered sign pursuant to the federal
Highway Beautification Act of 1965 (23 U.S.C. § 131 et seq.) and related
state statute (§ 13a-123). In order to replace the billboard’s support
structure, the plaintiffs acknowledged that they would need to remove
the existing billboard for a short period of time. The department denied
the plaintiff’s application for a permit to replace the support structure,
as a new sign was not permitted pursuant to 23 U.S.C. §131 et seq. and
§ 13a-123. The trial court rendered judgment for the plaintiffs, holding
that the proposed replacement of the billboard’s existing support system
constituted permissible maintenance and repair. The court further held
that, pursuant to a zoning statute (§ 8-2), the sign’s preexisting noncon-
forming use was a vested right with which the department and the
defendant Commissioner of Transportation could not interfere. On the
defendants’ appeal to this court, held that the trial court erred in holding
that replacing the billboard’s existing support structure constituted
maintenance and repair pursuant to federal and state law: although, as
a grandfathered nonconforming sign, the billboard could continue to
exist, even though it did not comply with state regulations, and it could
be maintained and repaired without losing its grandfathered status,
replacing the billboard’s existing support system was not customary
maintenance and repair because such construction would substantially
change the billboard and constitute the erection of a new billboard, and
all other jurisdictions confronted with similar facts have held that such
structural replacement constitutes the erection of a new sign and, thus,
the termination of the preexisting sign’s nonconforming usage; more-
over, this court’s determination that reconstructing a billboard with a
new support structure did not constitute customary repair and mainte-
nance was consistent with the purpose of 23 U.S.C. § 131 et seq., as the
policy behind the act was for billboards located in certain zones along
federal highways to cease to exist after they had reached the natural
end of their lives; furthermore, the court’s reliance on § 8-2, which
restricts municipal zoning authorities from interfering with nonconform-
ing uses, was misplaced, as that statute applies only in a zoning context
and this case was governed by federal and state law and regulations,
and, contrary to the plaintiffs’ claim, there was no taking of a vested
property right, as the defendants did not direct the plaintiffs to remove
the billboard.
Argued January 11—officially released June 21, 2022
Procedural History
Action for a judgment declaring, inter alia, that the
plaintiffs may replace the existing support structure
for a certain nonconforming outdoor advertising sign,
brought to the Superior Court in the judicial district of
Fairfield and tried to the court, Hon. Dale W. Radcliffe,
judge trial referee; judgment for the plaintiffs, from
which the defendants appealed to this court. Reversed;
judgment directed.
Anthony C. Famiglietti, assistant attorney general,
with whom, on the brief, were William Tong, attorney
general, and Clare Kindall, solicitor general, for the
appellants (defendants).
Joel Z. Green, with whom was Linda Pesce Laske,
for the appellees (plaintiffs).
Opinion
BRIGHT, C. J. In this declaratory judgment action,
the defendants, the Commissioner of Transportation
(commissioner) and the Department of Transportation
(department), appeal from the judgment of the trial
court rendered in favor of the plaintiffs, Highland Street
Associates (Highland Street) and Barrett Outdoor Com-
munications, Inc. (Barret Outdoor). On appeal, the
defendants claim that the court erred in concluding that
the replacement of a billboard’s existing trestle support
structure with a monopole1 constituted maintenance
and repair under the Highway Beautification Act of 1965
(act), 23 U.S.C. § 131 et seq., and General Statutes § 13a-
123. We agree and, accordingly, reverse the judgment
of the trial court.
The following facts, which are undisputed, and proce-
dural history are relevant to our resolution of this
appeal. Highland Street owns a parcel of real property
located at 215 Webster Street in Bridgeport. Barrett
Outdoor owns and operates a billboard that is located
on the Webster Street property. The billboard consists
of two sign faces that sit atop a trestle support structure
that is affixed to the ground. Advertising messages are
displayed on the sign faces and are changed frequently.
The billboard is located in a residential zone and is also
within 660 feet of Interstate 95, a federal highway. A
permit for the billboard was issued by the department
on May 9, 1966.2 Although a new billboard would not
be a permitted use at this location, because the billboard
at issue was erected prior to 1968, it is undisputed that
it is a nonconforming grandfathered sign under the act
and § 13a-123.
Recently, Barrett Outdoor decided that it wanted to
replace the billboard’s existing trestle support structure
with a new monopole. To that end, in November, 2017,
Barrett Outdoor submitted an ‘‘Application for Outdoor
Advertising Permit’’ to the department.3 The application
identified the billboard as a ‘‘[p]re-existing structure’’
and stated that ‘‘[t]he pole of the structure needs to be
replaced.’’ Dennis Buckley, a Bridgeport zoning official,
signed off on the plaintiffs’ application, attesting that
‘‘the structure described [in the application] is in accor-
dance with all local zoning regulations and ordinances
concerning off-premise advertising.’’
On January 5, 2018, the department denied the plain-
tiffs’ request for a new permit, stating: ‘‘The existing
sign . . . does have nonconforming status and will be
allowed to be maintained and continued pursuant to
[§] 13a-123-12 of the Regulations of Connecticut State
Agencies and 23 C.F.R. § 750.707. However, to maintain
nonconforming status, a billboard structure must
remain ‘substantially the same.’ Anything beyond cus-
tomary maintenance and repair, such as the replace-
ment of the sign with a new structure, is not permissi-
ble under [f]ederal and [s]tate law.’’ (Emphasis added.)
Thereafter, the plaintiffs sent a letter to the depart-
ment asking it to reconsider the denial of their applica-
tion because ‘‘the present use of the premises at 215
Webster Street . . . for an outdoor advertising struc-
ture while nonconforming to the Zoning Regulations of
the City of Bridgeport, is a legally and permitted use
of the premises at 215 Webster Street . . . [and] there
is no contemplated change in the use of the property
by virtue of the application including the replacement
of the structure supporting the existing outdoor adver-
tising sign which, once again, is specifically permitted
under Connecticut law.’’ The department denied that
request, stating that the plaintiffs’ application did not
‘‘request customary maintenance and repair’’ of the bill-
board because ‘‘[the plaintiffs are] seeking to remove
the existing sign structure and replace it with an entirely
new structure.’’ In denying the plaintiffs’ request for
reconsideration, the department specifically relied on
this court’s decision in Billboards Divinity, LLC v.
Commissioner of Transportation, 133 Conn. App. 405,
35 A.3d 395, cert. denied, 304 Conn. 916, 40 A.3d 783(2012), wherein, according to the department’s sum-
mary of the case, this court defined the phrase ‘‘ ‘mainte-
nance and repair’ to mean ‘actions taken to perpetuate
or to restore a presently existing sign.’ ’’ (Emphasis in
original.)
Pursuant to General Statutes § 4-176,4 the plaintiffs
then petitioned the department for a declaratory ruling
that they could replace the billboard’s existing trestle
support structure with a new monopole. After the
department failed to act on the plaintiffs’ petition, the
plaintiffs brought a declaratory judgment action in the
Superior Court, pursuant to General Statutes § 4-175,5
seeking a declaratory ruling that they could replace the
billboard’s existing support structure.
A one day court trial was held on March 10, 2020.6
At the trial, Bruce Barrett, the president of Barrett Out-
door, testified on direct examination that Barrett Out-
door submitted an application for a new permit because
‘‘[w]e were being very protective, we wanted to make
sure if we disassembled this sign and replaced it that
midstream the [department] wouldn’t tell us that we
needed a permit.’’ Barrett also testified on direct exami-
nation that, in order to replace the billboard’s existing
trestle support structure with a new monopole, the
existing sign would need to come down for ‘‘a week
or two weeks whatever time.’’ On cross-examination,
Barrett stated that, once the existing support structure
had been replaced with the monopole, ‘‘[t]he [bill-
board’s] support structure will look different.’’
Matthew Geanacopoulos, a department employee,
testified that an application for a permit was required
only when a sign owner was ‘‘erecting a new structure,’’
and that, if a sign owner simply wanted to perform
maintenance or repair on a billboard, the owner did
not need to submit anything to the department. Geana-
copoulos also testified that the department had denied
the plaintiffs’ application because the plaintiffs had
‘‘applied for a new permit, and their application said
they were going to replace their existing sign,’’ a request
that the department ‘‘interpret[ed] . . . as a new struc-
ture, new sign’’ which was not allowed under state and
federal law.
In a decision dated September 8, 2020, the court,
Hon. Dale W. Radcliffe, judge trial referee, rendered
judgment for the plaintiffs. The court held that (1) the
construction of a monopole in place of the billboard’s
existing trestle support system constituted mainte-
nance and repair because ‘‘the outdoor advertising sign
is slated to remain in the same location, will contain
the same dimensions, and will be adjacent to the same
interstate highway,’’ and (2) pursuant to General Stat-
utes § 8-2, the billboard’s preexisting nonconforming
use was a vested right with which the department could
not interfere. The court also held that this court’s deci-
sion in Billboards Divinity, LLC v. Commissioner of
Transportation, supra, 133 Conn. App. 418–19, was dis-
tinguishable from the plaintiff’s case because the prop-
erty owners in Billboards Divinity, LLC, ‘‘desired to
erect two new billboards, after two nonconforming bill-
boards were removed from the site,’’ whereas in the
present case, ‘‘the issue involves an existing outdoor
advertising sign, which has not been discontinued, or
abandoned.’’ The defendants then appealed.
We begin by setting forth the applicable standard of
review and principles of law that guide our analysis.
Resolving the defendants’ appeal requires us to inter-
pret and apply the provisions of the act and § 13a-123.
‘‘With respect to the construction and application of
federal statutes, principles of comity and consistency
require us to follow the plain meaning rule for the inter-
pretation of federal statutes because that is the rule
of construction utilized by the United States Court of
Appeals for the Second Circuit. . . . If the meaning of
the text is not plain, however, we must look to the
statute as a whole and construct an interpretation that
comports with its primary purpose and does not lead to
anomalous or unreasonable results.’’ (Citation omitted;
internal quotation marks omitted.) Cambodian Bud-
dhist Society of Connecticut, Inc. v. Planning & Zoning
Commission, 285 Conn. 381, 400–401, 941 A.2d 868(2008); see also O’Toole v. Eyelets for Industry, Inc.,
148 Conn. App. 367, 373, 86 A.3d 475 (2014) (plain mean-
ing rule, as set forth in General Statutes § 1-2z, does
not apply when interpreting federal statutes).
Similarly, as to the construction and application of
state statutes, ‘‘[o]ur fundamental objective is to ascer-
tain and give effect to the apparent intent of the legisla-
ture. . . . In other words, we seek to determine, in a
reasoned manner, the meaning of the statutory language
as applied to the facts of [the] case, including the ques-
tion of whether the language actually does apply. . . .
In seeking to determine that meaning . . . § 1-2z
directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered. . . . Furthermore, [t]he legislature is
always presumed to have created a harmonious and
consistent body of law . . . [so that] [i]n determining
the meaning of a statute . . . we look not only at the
provision at issue, but also to the broader statutory
scheme to ensure the coherency of our construction.
. . . Because issues of statutory construction raise
questions of law, they are subject to plenary review on
appeal.’’ (Internal quotation marks omitted.) Robinson
v. Tindill, 208 Conn. App. 255, 264, 264 A.2d 1063, cert.
denied, 340 Conn. 917, 265 A.3d 926 (2021).
‘‘The [act] . . . was enacted to exert federal control
over the erection and maintenance of outdoor advertis-
ing signs, displays and devices located within 660 feet
of the nearest edge of the right-of-way and visible from
the traveled portion of interstate and federal-aid pri-
mary highways. . . . The act requires states to enter
into agreements with the federal government to carry
out the provisions and the goals of the act or else risk the
loss of a portion of their federal highway funding. . . .
‘‘Section (d) of the act provides [in relevant part]: In
order to promote the reasonable, orderly and effective
display of outdoor advertising while remaining consis-
tent with the purposes of this section, signs, displays,
and devices whose size, lighting and spacing, consistent
with customary use [as] is to be determined by agree-
ment between the several [s]tates and the Secretary [of
Transportation], may be erected and maintained within
six hundred and sixty feet of the nearest edge of the
right-of-way within areas adjacent to the Interstate and
primary systems which are zoned industrial or commer-
cial under authority of [s]tate law, or in unzoned com-
mercial or industrial areas as may be determined by
agreement between the several [s]tates and the Secre-
tary [of Transportation]. The [s]tates shall have full
authority under their own zoning laws to zone areas
for commercial or industrial purposes, and the actions
of the States in this regard will be accepted for the
purposes of this [a]ct. Whenever a bona fide [s]tate,
county, or local zoning authority has made a determina-
tion of customary use, such determination will be
accepted in lieu of controls by agreement in the zoned
commercial and industrial areas within the geographi-
cal jurisdiction of such authority. . . . Section (d),
therefore, clearly limits the erection of signs falling
within the provisions of the act solely to areas that are
zoned by state or local authorities for commercial or
industrial purposes . . . .
‘‘The federal regulations promulgated in support of
the act contain a provision addressing the issue of non-
conforming signs, which it defines as a sign which was
lawfully erected but does not comply with the provi-
sions of [s]tate law or [s]tate regulations passed at a
later date or later fails to comply with [s]tate law or
[s]tate regulations due to changed conditions. . . . The
regulation authorizes each state to include in its agree-
ment with the federal government a so-called grandfa-
ther clause to allow for the continuation of nonconform-
ing signs. . . . The clause only provides for the
continuance of a sign at its particular location for the
duration of its normal life subject to customary mainte-
nance. . . .
‘‘The federal regulations also set forth criteria neces-
sary to maintain and continue a nonconforming sign.
For example, the sign must remain substantially the
same as it was on the effective date of the [s]tate law
or regulations. . . . The regulation authorizes each
state to develop its own criteria to determine when
customary maintenance ceases and a substantial
change has occurred which would terminate noncon-
forming rights. . . . Further, a nonconforming sign can
only continue as long as it is not destroyed, abandoned,
or discontinued. . . .
‘‘Connecticut entered into an agreement with the fed-
eral government pursuant to the act, which led to the
enactment of . . . § 13a-123. Section 13a-123 (a) pro-
vides in relevant part: The erection of outdoor advertis-
ing structures, signs, displays or devices within six hun-
dred sixty feet of the edge of the right-of-way, the
advertising message of which is visible from the main
traveled way of any portion of the National System of
Interstate and Defense Highways, hereinafter referred
to as interstate highways, the primary system of federal-
aid highways or other limited access state highways, is
prohibited except as otherwise provided in or pursuant
to this section . . . . Section 13a-123 (c) authorizes
the commissioner . . . to promulgate regulations for
the control of outdoor advertising structures, signs, dis-
plays and devices along interstate highways, the pri-
mary system of federal-aid highways and other limited
access state highways. Such regulations shall be as, but
not more, restrictive than the controls required by Title
I of the [act] and any amendments thereto with respect
to the interstate and primary systems of federal-aid
highways . . . . Section 13a-123 (e) provides in rele-
vant part: Subject to regulations adopted by the com-
missioner and except as prohibited by state statute,
local ordinance or zoning regulation signs, displays and
devices may be erected and maintained within six hun-
dred sixty feet of primary and other limited access state
highways in areas which are zoned for industrial or
commercial use under authority of law . . . .
‘‘Among the regulations promulgated by the commis-
sioner in accordance with § 13a-123 (d), is a grandfather
clause of the type authorized by 23 C.F.R. § 750.707 (c).
. . . The regulation[s] [also define] erect to mean to
construct, build, raise, assemble, place, affix, attach,
create, paint, draw, or in any other way bring into being
or establish, but it shall not include any of the foregoing
activities when performed as an incident to the change
of advertising message or customary maintenance or
repair of a sign or sign structure.’’ (Citations omitted;
emphasis added; footnote omitted; internal quotation
marks omitted.) Billboards Divinity, LLC v. Commis-
sioner of Transportation, supra, 133 Conn. App. 414–
17.
On appeal, the defendants claim that the court erred
when it concluded that replacing the billboard’s existing
support structure with a new monopole constituted
customary repair and maintenance. We agree.
It is undisputed that the billboard in question is a
grandfathered nonconforming sign, given that, although
it is located in an area zoned for residential use, it
existed prior to the enactment of the applicable state
regulations. As a grandfathered nonconforming sign,
the billboard is allowed to continue to exist even though
it does not comply with state regulations. 23 C.F.R.
§ 750.707 (d); Regs., Conn. State Agencies § 13a-123-
12. The billboard also can be maintained and repaired
without losing its grandfathered status. 23 C.F.R.
§ 750.707 (d) (5); Regs., Conn. State Agencies § 13a-123-
2 (b). Any alteration beyond maintenance and repair,
however, terminates the continuation of the billboard’s
grandfathered status and transforms the billboard into
a new sign that must comply with the state regulations.
See Billboards Divinity, LLC v. Commissioner of
Transportation, supra, 133 Conn. App. 416. Specifically,
although § 13a-123-4 of the Regulations of Connecticut
State Agencies prohibits the erection of new signs in
protected areas, § 13a-123-12 permits signs erected
prior to March 19, 1968, to remain in place as noncon-
forming uses, and § 13a-123-2 excludes from the defini-
tion of ‘‘ ‘erect,’ ’’ ‘‘activities when performed as an inci-
dent to the change of advertising message or customary
maintenance or repair of a sign or sign structure.’’ Con-
sequently, consistent with federal law, the plaintiffs’
billboard maintains its grandfathered status so long as
the plaintiffs’ activities related to it are limited to cus-
tomary maintenance and repair of the sign or the sign
structure.
In Billboards Divinity, LLC v. Commissioner of
Transportation, supra, 133 Conn. App. 418, this court
specifically addressed the meaning of ‘‘ ‘customary
maintenance and repair’ ’’ as used in the federal and
state regulations. In Billboards Divinity, LLC, the
plaintiff filed an application with the department for a
permit to reconstruct two grandfathered nonconform-
ing billboards as to which its tenant had cancelled the
permits and removed from the property. Id., 408. The
department denied the plaintiff’s application because
the property where the billboards were to be rebuilt
was a residential zone and, thus, a prohibited area. Id.,408–409. The plaintiff appealed, claiming that it had a
right to continue with a nonconforming use of its prop-
erty and that the tenant’s removal of the previous bill-
boards had not extinguished that use. Id., 410.
This court determined that, ‘‘[p]ursuant to the statu-
tory and regulatory scheme set forth [in the act and
state law] . . . the plaintiff’s argument has merit only
if its erection of new billboards qualifies as ‘customary
maintenance or repair’ of the prior nonconforming
signs.’’ Id., 418. Noting that ‘‘ ‘[c]ustomary maintenance
and repair’ is not defined in the regulations [and] there-
fore, the term must be construed according to its com-
monly approved usage,’’ the court held that ‘‘[t]he term
‘maintenance and repair’ as used in reference to non-
conforming signs logically refers to actions taken to
perpetuate or to restore a presently existing sign.’’
(Emphasis added.) Id. Given that interpretation, the
court held that the plaintiff’s proposed construction
of new billboards to replace the previously existing
billboards was not maintenance and repair because,
‘‘rather than seeking to make repairs to or to maintain
an existing, nonconforming billboard, the plaintiff’s
application sought a permit to erect two wholly new
signs.’’ Id., 418–19.
The plaintiffs argue, as the trial court held, that Bill-
boards Divinity, LLC, is distinguishable from the pres-
ent case because, in Billboards Divinity, LLC, the bill-
boards had been removed and the permits cancelled,
whereas here, the billboard is still standing and the
permit remains valid. We conclude that any factual dif-
ferences between the present case and Billboards
Divinity, LLC, are not material to our analysis. It is
undisputed in the present case that the existing bill-
board and support structure must be taken down in
order to replace the billboard’s existing trestle support
structure with the new monopole. When the billboard
is put back up, now supported by the new monopole,
the billboard is a new sign. See id. The erection of a new
sign, even when that construction is done to replace a
previously existing billboard and even though the owner
has never stated an intention to abandon the permit to
use a sign at that location, is not maintenance and repair
because such construction is not an action taken to
‘‘perpetuate or to restore a presently existing sign,’’
given that the ‘‘presently existing sign’’ no longer exists.
Id. Thus, as was the case in Billboards Divinity, LLC,
‘‘rather than seeking to make repairs to or to maintain
an existing, nonconforming billboard, the plaintiff’s
application sought a permit to erect [a] wholly new
[billboard].’’ Id., 419. Such construction is not mainte-
nance and repair according to that term’s commonly
understood usage, and the trial court therefore erred
in holding that replacing the billboard’s existing support
structure with a new monopole was maintenance and
repair under the act and § 13a-123.
Moreover, replacing the billboard’s existing support
system with a new monopole is not customary mainte-
nance and repair because such construction would sub-
stantially change the billboard. Under the federal regu-
lations, a billboard can be maintained and repaired only
to the extent that the sign remains substantially the
same as it was when the sign was grandfathered in as
a nonconforming sign. See 23 C.F.R. § 750.707 (d) (‘‘[i]n
order to maintain and continue a nonconforming sign
. . . (5) [t]he sign must remain substantially the same
as it was on the effective date of the State law or regula-
tions’’). Reconstructing the billboard in the present case
with a monopole in place of its existing support struc-
ture would result in a billboard that is substantially
different in how it is constructed from the grandfath-
ered nonconforming billboard. Indeed, the president of
Barrett Outdoor testified at trial that replacing the tres-
tle support structure with a monopole involved disas-
sembling the sign, with the end result being that the
billboard’s support structure would look different after
the trestle structure was replaced with a monopole.
Thus, because replacing the billboard’s existing support
system with a monopole would result in a substantially
different sign, such construction is not customary main-
tenance and repair.
We also are not persuaded by the plaintiffs’ argument
that the billboard will be substantially the same after the
trestle support structure is replaced with a monopole
because the dimensions, location, and positioning of
the sign portion of the billboard structure will be
unchanged. The plaintiffs have not cited, nor have we
found, any cases from Connecticut or any other jurisdic-
tions in which a property owner was permitted to main-
tain their nonconforming use by replacing a billboard’s
existing support structure with a new and different
support structure.7 To the contrary, our research has
revealed that all of the other jurisdictions that have
been confronted with facts similar to those here have
held that replacing a billboard’s existing support struc-
ture with a new support structure goes beyond mainte-
nance and repair and instead constitutes the erection
of a new sign, at which point the preexisting sign’s
nonconforming use is terminated and the relevant state
regulations relating to the construction of the sign
apply. See, e.g., Tucson v. Whiteco Metrocom, Inc., 194
Ariz. 390, 397–98, 983 P.2d 759 (App. 1999) (replacement
of billboard’s existing twin I beam support structure
with new unipole structure was not reasonable repair);
U.S. Outdoor Advertising Co. v. Indiana Dept. of
Transportation, 714 N.E.2d 1244, 1255 (Ind. App. 1999)
(reconstructing billboard’s existing support system by
removing wooden supports and replacing them with
steel supports was not maintenance and repair); Mere-
dith Outdoor Advertising, Inc. v. Iowa Dept. of Trans-
portation, 648 N.W.2d 109, 118 (Iowa 2002) (increase
in billboard’s size and number of posts supporting sign
was ‘‘too extensive to constitute de minimis changes
or a mere continuation of the existing sign’’); Zanghi
v. State, 204 App. Div. 2d 313, 314, 611 N.Y.S.2d 263(1994) (reerecting billboard that tenant had removed
constituted ‘‘change in existing use’’ and terminated
sign’s nonconforming use); Park Outdoor Advertising
Co. v. Commonwealth Dept. of Transportation, 86 Pa.
Commw. 506, 508, 510, 485 A.2d 864 (1984) (new bill-
board was erected when wooden frame and two support
posts were changed to metal frame and one support
post); cf. State Dept. of Roads v. World Diversified, Inc.,
254 Neb. 307, 315, 576 N.W.2d 198 (1998) (converting
existing billboard into electronic billboard constituted
maintenance and repair when ‘‘updates occurred upon
the original frame of the sign [and] the sign remained in
the same location on the same support posts’’ (emphasis
added)). Significantly, we have located no cases that
have held to the contrary since this court noted in
Billboards Divinity, LLC, that ‘‘other jurisdictions have
found that once nonconforming signs are removed com-
pletely, or they have been repaired substantially or
altered in some way, any right to the continuation of
the nonconformity terminates.’’ (Emphasis added.) Bill-
boards Divinity, LLC v. Commissioner of Transporta-
tion, supra, 133 Conn. App. 419. Consistent with the
holdings in other jurisdictions and our decision in Bill-
boards Divinity, LLC, we conclude that replacing the
billboard’s preexisting support structure and then
installing the newly built structure constitutes both a
substantial repair or alteration of the billboard and the
erection of a new billboard, all of which is well beyond
the customary maintenance and repair permitted by the
act, § 13-123, and the corresponding regulations.8
Our conclusion that reconstructing a billboard with
a new support structure does not constitute customary
maintenance and repair is also consistent with the pur-
pose of the act. The policy behind the act was for bill-
boards located in certain zones along our nation’s fed-
eral highways to cease to exist after those billboards
had reached the natural end of their lives. In fact, 23
C.F.R. § 750.707 (c), the provision of the Code of Federal
Regulations that provides for the grandfathering of non-
conforming signs, explicitly provides: ‘‘This clause only
allows an individual sign at its particular location for
the duration of its normal life subject to customary
maintenance.’’ See Billboards Divinity, LLC v. Com-
missioner of Transportation, supra, 133 Conn. App.
415–16; see also Redpath v. Missouri Highway &
Transportation Commission, 14 S.W.3d 34, 39 (Mo.
App. 1999) (act was ‘‘intended to reduce the number
of signboards crowding the highways’’); National
Advertising Co. v. Bradshaw, 48 N.C. App. 10, 19–20,
268 S.E.2d 816 (‘‘obvious purpose of the [act was] to
gradually phase out signs . . . which existed at the
time of enactment but which tended to harm the public
interest and welfare by causing ugliness, distraction,
and safety hazards’’), appeal dismissed, 301 N.C. 400,
273 S.E.2d. 446 (1980). Accepting the plaintiffs’ argu-
ment would mean that a sign owner could circumvent
that purpose and extend forever the nonconforming
use by essentially rebuilding a nonconforming sign
more than fifty years after it was built and then replacing
various parts of the sign as needed until the sign bears
no resemblance to its original structure, save for its
size and dimensions. We will not interpret the statutes
and regulations to reach such an anomalous and unrea-
sonable result, and thus decline to interpret the act and
§ 13a-123 as permitting the reconstruction of billboards
with wholly new support structures. See Cambodian
Buddhist Society of Connecticut, Inc. v. Planning &
Zoning Commission, supra, 285 Conn. 400–401; see
also Raftopol v. Ramey, 299 Conn. 681, 703, 12 A.3d
783 (2011) (‘‘We often have stated that it is axiomatic
that those who promulgate statutes . . . do not intend
to promulgate statutes . . . that lead to absurd conse-
quences or bizarre results. . . . Accordingly, [w]e con-
strue a statute in a manner that will not . . . lead to
absurd results.’’ (Citations omitted; internal quotation
marks omitted.)).
We further conclude that the court’s reliance on § 8-
2 to hold that the plaintiff could replace the billboard’s
existing support structure with a new monopole with-
out the billboard losing its nonconforming status is
misplaced. The court reasoned: ‘‘It is well settled in
this jurisdiction that preexisting nonconforming uses
of land involve vested rights. Section 8-2 of the General
Statutes restricts municipal zoning authorities from
interfering with nonconforming uses.’’ After discussing
several of our Supreme Court’s cases applying § 8-2 and
the restrictions on a municipality’s ability to eliminate
a nonconforming use, the court concluded: ‘‘It cannot
be found, based on the evidence adduced at trial, and
applicable Connecticut case law, that the proposed
change in the support structure forfeits the right of the
property owner to continue the lawful nonconforming
use of 215 Webster Street.’’ Relying on this same analy-
sis, the plaintiffs argue that ‘‘[t]he policies of the [act]
and [§ 13a-123], and the regulations promulgated pursu-
ant to those statutes, provide protections to sign owners
that are consistent with the constitutional protections
that apply in the zoning context.’’ We fail to see how
§ 8-2 or the cases cited by the court are relevant to the
legal issues involved in this case.
Section 8-2 provides in relevant part that municipal
zoning regulations shall not ‘‘[p]rohibit the continuance
of any nonconforming use, building or structure
existing at the time of the adoption of such regulations.’’
There are no municipal zoning regulations at issue in
the present case. This case is governed by state and
federal law, specifically the act, § 13a-123, and the
appropriate state and federal regulations, not by munici-
pal zoning law. Accordingly, § 8-2, which only applies
in the zoning context, does not apply here.
Given that § 8-2 has no application in the present
case, the court’s reliance on cases that have applied § 8-
2 to municipal actions directed toward nonconforming
uses is misplaced. Indeed, none of the cases relied on
by the court involved billboards, the act, § 13a-123, or
any of the applicable regulations.
Finally, we are not persuaded by the plaintiffs’ claim
that the defendants’ denial of their request to replace
the sign’s existing support structure with a monopole
constituted ‘‘a taking of a vested property right’’ without
just compensation. Section 13a-123 (g) (2) provides in
relevant part that the commissioner may ‘‘acquire by
purchase, gift or condemnation, and shall pay just com-
pensation upon the removal of [grandfathered] outdoor
advertising structures, signs, displays.’’ (Emphasis
added.) In the present case, the defendants have not
directed the plaintiffs to remove their sign. In fact, to
the contrary, the defendants have recognized the sign’s
grandfathered status and have made it clear that the
sign does not need to be taken down and that the plain-
tiffs can continue to operate and maintain it, albeit
within the confines of § 13a-123-12 of the regulations.
There can be no regulatory taking when a sign owner
has not been told to take down a sign and, conversely,
is explicitly allowed to continue operating the existing
sign. See Lamar Co., LLC v. Arkansas State Highway &
Transportation Dept., 386 S.W.3d 670, 676 (Ark. App.
2011) (plaintiff’s takings claim was premature when
defendant had not ordered plaintiff to remove bill-
boards); U.S. Outdoor Advertising Co. v. Indiana Dept.
of Transportation, supra, 714 N.E.2d 1264 (‘‘[t]he ques-
tion of taking and compensation is not properly before
this [c]ourt because the signs have not yet been
removed’’; additionally, no authority exists to support
assertion that denial of permit amounts to order for
removal of sign). Accordingly, we conclude that the
plaintiffs’ takings claim misses the point, given that the
defendants have not directed the plaintiffs to take down
their sign and have instead said only that the plaintiffs
may not remove the sign to reconstruct it with a new
and different support structure.
The judgment is reversed and the case is remanded
with direction to render judgment for the defendants.
In this opinion the other judges concurred.
1
A monopole is a singular pole that is used to support a billboard or other
advertising structure.
2
This permit has been in effect since its issuance in 1966 and was still
in effect at the time of this appeal.
3
Highland Street also signed the application.
4
General Statutes § 4-176 provides in relevant part:
‘‘(a) Any person may petition an agency, or an agency may on its own
motion initiate a proceeding, for a declaratory ruling as to the validity of
any regulation, or the applicability to specified circumstances of a provision
of the general statutes, a regulation, or a final decision on a matter within
the jurisdiction of the agency. . . .
‘‘(e) Within sixty days after receipt of a petition for a declaratory ruling,
an agency in writing shall: (1) Issue a ruling declaring the validity of a
regulation or the applicability of the provision of the general statutes, the
regulation, or the final decision in question to the specified circumstances,
(2) order the matter set for specified proceedings, (3) agree to issue a
declaratory ruling by a specified date, (4) decide not to issue a declaratory
ruling and initiate regulation-making proceedings, under section 4-168, on
the subject, or (5) decide not to issue a declaratory ruling, stating the reasons
for its action. . . .
‘‘(i) If an agency does not issue a declaratory ruling within one hundred
eighty days after the filing of a petition therefor, or within such longer period
as may be agreed by the parties, the agency shall be deemed to have decided
not to issue such ruling. . . .’’
5
General Statutes § 4-175 (a) provides in relevant part: ‘‘If a provision
of the general statutes, a regulation or a final decision, or its threatened
application, interferes with or impairs, or threatens to interfere with or
impair, the legal rights or privileges of the plaintiff and if an agency . . .
is deemed to have decided not to issue a declaratory ruling under subsection
(i) of said section 4-176, the petitioner may seek in the Superior Court a
declaratory judgment as to the validity of the regulation in question or the
applicability of the provision of the general statutes, the regulation or the
final decision in question to specified circumstances. . . .’’
6
Both parties filed motions for summary judgment, but the court, Hon.
Alfred J. Jennings, judge trial referee, denied the motions.
7
We note, as this court did in Billboards Divinity, LLC, that we ‘‘need
not decide at this time whether the complete replacement of a nonconform-
ing sign that was destroyed by accident, natural disaster, or foul play would
constitute customary maintenance and repair of the destroyed sign so as
to permit the continuation of the nonconforming use.’’ Billboards Divinity,
LLC v. Commissioner of Transportation, supra, 133 Conn. App. 419 n.5.
8
At oral argument before this court, the plaintiffs’ counsel argued that
the department has the authority to regulate only the sign face itself and
that the department cannot regulate a sign’s support structure. Section 13a-
123 (c) is directly to the contrary and makes clear that the department has
the authority to regulate both the sign face and the sign’s support structure
as they are, essentially, one and the same. See General Statutes § 13a-123
(c) (‘‘[t]he commissioner may promulgate regulations for the control of
outdoor advertising structures, signs, displays and devices along interstate
highways’’ (emphasis added)).