HomeMy WebLinkAboutAppeal - denied TOWN OF SOUTH WINDSOR Application# 9�5 71-0,3
APPLICATION FOR Date t 3C�3
ZONING BOARD OF APPEALS Receipt# ?f q 0
IMPORTANT.- This application must be submitted to the Planning Department by the second Thursday of the
preceding month to insure being heard at the next meeting.
ALL ITEMS MUST BE ANSWERED AND ALL SUPPLEMENTS MUST BE SUBMITTED.
1. The application and supplements must be filed in duplicate,typed or printed in ink.
2. A Class D or better survey of the property in question must be submitted with the application showing
streets, lot lines,building lines, zone boundary lines, dimensions, and buildings present or proposed and
buildings on adjacent properties and distance from subject property.
3. If a variance is being requested, a legal description and deed of the property must be submitted with the
application. This description can be obtained from the land records.
4. The sign from the Planning Department must be displayed on the property at least 10 days prior to the public
hearing in a location visible from all abutting streets.
• The applicant, or a representative must be present for the public hearing. The time, date and place of
the hearing will be advised by mail.
• Inquiries on this application may be directed to the Planning Department at the South Windsor
Town Hall. -
5. No application shall be a complete application unless it shall be in such form and contain such
information as necessary for a fair determination of the issues. Incomplete applications may be
denied.
M('1. Applicant: / ,wi `
J1
2. Mailing Address: 1 CI 1 f � l `',/��I C�
C--7
3. Telephone#: cw? 1 I
4. Owner of record of property in question: Off � o)
5. Location of property in question: q O L
t uC (\ <o7
Assessor's Map# ` Peel# Z. Z OPC'.f)
spocc-
6. Is applicant a corporation or co-partnership? (If corporation, submit a list of officers. If co-partnership,
submit a list of owners).
7. Please indicate if the applicant is owner, lessee, or prospective tenant:
8. Check one of the following:
( ) Request Variance to Section of the Zoning Regulations to allow
( ) State hearing under Section of the General Statutes for
( An appeal from the Zoning Officer's decision involving S
9. Is this a request for a sign variance? If yes, complete and submit the sign checklist information.
10.If application is for a variance to Section 3.12,are there any liquor outlets within the restricted area,
(500 feet)? YES or NO If yes, submit a list of liquor outlets,their locations and distances from the
property in question.11.Is this property within 500 feet of another town line? �ld
12.Is this property within the Connecticut Water Aquifer area? Yes or No. If yes, application must be filed
with the Connecticut Water Company by the applicant.
13.If requesting a variance state clearly the unusual hardship or exceptional difficulty on the property that
prompts this application and indicate why other options are unacceptable. Use a separate sheet of paper if
necessary.
I hereby declare that the data&information contained herein is accurate to the best of my knowledge.
Dated this / U day of ��� Year
Applicant: 4
j� (Signature)
OWNER: %��l
(Signature)
Approved: Denied-
Revised 12/04/98
To:
Marcia Banach, Town Planner, Town of South Windsor
Robert Warren, Chairman, South Windsor Zoning Board of
Appeals
From: Jerry McGuire, 139 Newmarker Road, South Windsor
Re: Highway sign in backyard of 24 Jessica Drive
I am in receipt of the town attorney' s opinion dated Feb.
27 that the sign referenced above is not in violation of
Section 17 of the town' s zoning ordinances regarding signs.
Based on my discussions with Ms. Banach last summer, I
anticipate the zoning enforcement officers will concur with
this opinion.
Thus, in expectation of an official ruling the sign is not
a sign subject to zoning enforcement, I would like to refer
this matter to the Zoning Board of Appeals.
It is my understanding the board is to meet in early April.
If possible, I would like this matter to be heard at that
meeting. As this issue started in mid-July of last year, my
hope is that it can be resolved quickly, especially now
that we finally have the opinion from the town attorney.
I plan on presenting my case and response to the attorney' s
opinion at that meeting.
In advance of hearing, Mr. Warren and the other members of
the Board of Appeals are welcome to visit my house so they
can fully appreciate the view that I (and my neighbors)
have of the sign in question.
Please know that I attempted to download an "official"
appeal form from the town' s website but was unsuccessful.
Please advise if I need to act further to have this matter
heard by the Zoning Board of Appeals .
Sincerely,
Jerry McGuire
CYY 7Y6/
To: SouthWindsor Zoning Board of Appeals
Re: Appeal of Zoning Enforcement Officer's ruling regarding highway sign in backyard
of 24 Jessica Drive
Enclosed please find more materials to supplement the previously submitted appeal in the
above-referenced matter.
They include:
1. Copy of original complaint letter submitted 7/2002
2. Copy of town attorney's opinion of 2/2003
3. Copy of zoning enforcement officer's ruling sign is"me orabilia"and not
subject to rules regarding signs
4. Photo of sign
6- -MAksh-em M. 111W11111d"
Again, I extend an invitation to all members of the board to visit my house so they can
gain an appreciation for the view that I and my neighbors have daily of this highway sign.
u.
J Mc uire
9 Ne arker Road
South indsor, CT 06074
644-7461
Zoning Enforcement Officer
Town of South Windsor
Town Planner
Town of South Windsor
South Windsor,CT 06074
Re: 24 Jessica Drive
The following is a formal complaint by the undersigned that the large blue highway sign
with white lettering standing in the backyard of 24 Jessica Drive commemorating the
1999 University of Connecticut men's basketball national championship—a sign that
formerly stood near Exit 68 on Interstate 84 in Tolland—is in violation of the town
ordinances concerning signs in residential zones. It is clearly visible to our homes as well
of those of our neighbors.
We believe the presence of this sign stands in violation of many of the provisions set
forth in Section 17 of South Windsor's Zoning Regulations.
This sign negatively affects both the aesthetics and property value of this neighborhood.
Additionally,the sign is a potential traffic hazard: drivers heading north on Newmarker
Road or turning west onto Debbie Drive from Newmarker can easily see the sign and
could be distracted by it. The sign will be much more visible when the leaves fall,thereby
exacerbating the negative effects listed above.
All the undersigned are longtime residents of South Windsor. We are very much aware
that the town vigoriously enforces regulations concerning decks, sheds,fences,pools,
numbers on houses,etc. The sign in question,in our opinion, is the most egregious
violation of town regulations that we have seen in our neighborhood.
This sign was made by the state of Connecticut's Department of Transportation highway
sign division. It was created for the express purpose of being seen and read at a distance
by drivers and passengers traveling at 65 mph on I-84 approaching Exit 68. It did not stop
being a sign when it was planted in the backyard of 24 Jessica Drive. It can be easily seen
and read by many more people than just the residents and guests at 24 Jessica Drive.
Many signs are created to honor championship sports teams, and there are many avid
sports fans who live in our town. Surely it is not in the town's best interest to have similar
commemorative signs sprouting up throughout our neighborhoods.
We would like the town to take action, enforce the well-reasoned and well thought-out
provisions of Section 17,and initiate action toward removal of this sign.
Sincerely,
Jerry McGuire Tim Howe Pete Lisowski
139 Newmarker Road 205 Debbie Drive 147 Newmaker Road
South Windsor, CT South Windsor, CT South Windsor,CT
To: South Windsor Zoning Board Of Appeals
Re: Highway Sign in backyard of 24 Jessica Drive
Please be advised the following disagree with the Zoning Enforcement Officer and Town
Attorney's opinion in this matter and are parties to the attached appeal:
Tim Howe,205 Debbie Drive, South Windsor
Pete Lisowski, 147 . , South Windsor
Gretchen Bickford, Town Clerk, South Windsor
Deborah W. Reid, Recording Secretary, South Windsor Zoning Board
of Appeals
This is to serve notice that I have appealed the recent decision
of the South Windsor Zoning Board of Appeals against me to the
state Superior Court.
The matter is Application No. 2571-03-Jerry McGuire, 24 Jessica
Drive, Open Space Zone, in which the board voted that the highway
sign in the backyard of 24 Jessica Drive is not a sign and
therefore not subject to regulations set forth in section 17 of
the South Windsor zoning ordinances regarding signs in
residential zones.
The docket number of my appeal in Hartford Superior Court is
CV030827332.
I would like to make it known that I will request mediation as
outlined under section 8-8a of the Connecticut General Statutes.
My desire is that the owner of 24 Jessica Drive move the sign to
another part of his property and turn it around so that it is
facing inward toward his property (it currently is facing
outward) , and that he cover the back of the sign in some manner
so that it is not visible from my property.
It came up during discussions on this matter that if the sign
were put in the front of 24 Jessica Drive, it would be a sign
subject to regulation. Apparently this vote says the sign is not
a sign because of what it is, but because of where it is. It is
this conclusion that I disagree with.
Sincrely
r McGuire
39 ewmarker Road
South Windsor, CT
p R C
- E
W TER UPC UNOS NSTABLE
TO OF S UTH INDSOR
AND N INDI FERENT PERSON
MEMORANDUM FEB 2r2003
SOUTH WjNDSOR NNNiNG DEPT.
TO: Marcia Banach, Director of Planning
Joy O'Connor, Zoning Enforcement Officer
FROM: Barry D. Guliano
Town Attorney
DATE: February 27, 2003
RE: Whether Display of Purported Sign Pertaining to UConn
Athletics is a Violation of the South Windsor Zoning
Regulations
On July, 22, 2003, the South Windsor Planning Department received a
formal written complaint from three residents who charged that a "large blue
highway sign with white lettering, standing in the backyard of 24 Jessica Drive,
commemoratingthe 1999 University of ty Connecticut Men s Basketball National
Championship—a sign that formerly stood near Exit 68 on Interstate 84 in
Tolland—is in violation of the Town ordinances concerning signs in residential
zones." The complaining residents live behind or to the side of the subject
property, such that the sign can be seen from their backyards. You have asked
for my legal opinion as to whether the structure is a violation of the Town's
zoning regulations concerning signs in residential zones.
It is my understanding that the structure in question was obtained by
the owner of 24 Jessica Drive, Dan Polo, during a charity auction. He bid
$1,500 for the structure at the annual UConn sports memorabilia auction. The
proceeds from the auction, which included everything from players'jerseys to
signs, to pieces of the gym floor from the Final Four, are allegedly used to pay
for athletic scholarships. The structure in question was one of a pair of
highway signs that had been displayed on Interstate 84, one in each direction
just before Exit 68, where travelers would get off the highway to reach the
UConn campus.
Mr. Polo has placed the structure in his backyard near his garage and
next to a full-court basketball court which he recently constructed. The
structure cannot be seen from the road in front of Mr. Polo's house (Jessica
Drive), but it can be seen from a portion of Debbie Drive, a roadway to the side
of his house, several hundred feet away. It can also be seen between the trees
from some portions of Newmarker Road, which runs behind the Polo property.
The structure can most-definitely be seen from the homes and backyards of the
complaining neighbors, at least one of whom has a pool in his backyard from
which the structure is clearly visible.
The South Windsor Planning and Zoning Commission is empowered to
regulate signs by Section 8-2 of the Connecticut General Statutes, which
specifically allows zoning commissions to regulate "the height, size and location
of advertising signs and billboards." But the regulation of signs has produced
a great deal of litigation over the years because of the competing interests
between a municipality's police powers and a resident's freedom to use and
decorate their property and their first amendment rights of expression.
2
In general, it has been held that a town may regulate signs through its
zoning laws where it is regulating only "height, size and location" of signs.
Municipal regulation of signs has been held to be unlawful, however, where it
is extended to include the color of signs, Capalbo v. Planning & Zoning Board
of Anneals of Town of Greenwich, 208 Conn. 480, 490-492 (1988), or the
content of signs. See Linmark Associates Inc v Willingboro Township, 431
U.S. 85 (1977); Virginia State Board of Pharmacy v Virginia Citizens Consumer
Council, Inc., 425 U.S. 748 (1976). Distinctions have also been made between
commercial signs and non-commercial signs, which may involve first
amendment rights.
It has generally been held that the municipality must base its regulation
of signs on some rationale involving its police powers, which are limited to
regulating the public health or safety. There has been a continual battle as to
whether regulation solely for the purposes of aesthetics is a valid rationale
under a town's police powers. Connecticut courts have generally held that
municipalities cannot regulate signs or any other zoning matter based upon
aesthetics, except in certain very limited situations not relevant to the present
case. This is because Connecticut statute arguably does not provide for such
jurisdiction and aesthetics are very subjective. One person's "thing of beauty"
is another person's "hideous eyesore."
. The fact that aesthetic considerations may have influenced the zoning
commission in enacting regulations does not, however, make them invalid as
3
long as other considerations were also involved which relate to the town's
police powers. Murphy. Inc. v. Town of Westport, 131 Conn. 292, 296-299
(1944). The United States Supreme Court has further held that regulations
pertaining to the size of signs are related to the police powers because signs
"take up space, may obstruct views, distract motorists, displace alternative
uses of land and create other problems." Thus, while aesthetics and protecting
property values may not be valid purposes for sign regulations, such
regulations are allowable where they can also be shown to serve the purpose of
protecting public health or safety. City of Ladue v. Gilleo, 510 U.S. 1037
(1994).
The South Windsor Zoning Regulations provide numerous regulations
pertaining to signs in Section 17. At Section 17.1, the purpose of the sign
regulations is stated to be
to permit such signs that will not, by their reason, size, location,
construction, or manner of display endanger the public safety of
individuals; confuse, mislead or obstruct the vision necessary for
traffic safety; or otherwise endanger public health, aesthetics,
property values, and safety; and to permit and regulate signs in
such a way as to support free speech and complement. land-use
objectives set forth in the Town Planning and Zoning Regulations
and Town Plan of Development for the Town of South Windsor,
Connecticut.
The regulations further describe their applicability and effect in the
following:
The effect of this regulation is to permit signs in all residential,
commercial and industrial zones subject to the standards and
permit procedures set forth in this regulation; to allow certain
4
signs that are small, unobtrusive, and incidental to the principal
use of the respective lots on which they are located, subject to the
requirements of this regulation but without a requirement for
permits; to provide for temporary signs without commercial
messages in limited circumstances in the public right of way; to
prohibit all signs not expressly permitted by this regulation; and to
provide for the enforcement of the provisions of this regulation.
At Section 17.8, the regulations describe the types of signs which will be
permitted in various zones. Specifically, in Section 17.8.2, the types of
permitted signs in single-family residence zones are described. These would
apply in the present case, as the area in question is zoned for single family
residences.
Before looking further at the specific regulations pertaining to signs
within this zone, however, it is necessary to determine whether or not the
structure in question is a "sign" as defined within the regulations. A zoning
commission has some discretion in defining what is a "sign" for purposes of the
zoning regulations, but is generally held to strict construction of that definition,
considered in the context of the enabling statute, Section 8-2 of the
Connecticut General Statutes, which refers to "advertising signs."
The opinions in two cases, one by the Connecticut Supreme Court and
one by the Connecticut Appellate Court, shed light upon the types of factors to
be considered in determining whether a structure is a "sign" for purposes of
zoning regulation. In Schwartz v. Planning & Zoning Commission of Town of
Hamden, 208 Conn. 146 (1988), the Connecticut Supreme Court held that a
32-foot high aluminum cylindrical structure displaying the word "Landmark"
5
located at the entrance to a shopping center known as Hamden Plaza was a
sculpture or work of art and not a sign subject to regulation. The court in
Schwartz first noted that zoning regulations and ordinances must be strictly
construed and not extended by implication because they are in derogation of
common law. Id. at 153. The zoning regulation in question defined a sign to
include "any object, device, display or structure which is used for attracting
attention to any use, product, service or activity, . . . ." The Supreme Court
ruled that the structure did not fit within this definition because, although it
was a unique sculpture that would no doubt attract attention to itself, it
nevertheless did not attract attention to any "use, product, service or activity"
as defined in the regulation. The court, thus, ruled that the local commission's
finding that the sculpture violated zoning regulations pertaining to signs was
unsupported and, therefore, arbitrary and unreasonable.
In Kroll v. Steere, 60 Conn. App. 376 (2000), the Connecticut Appellate
Court held that a 20 square foot mural of a deer which was posted to oppose a
local ordinance on deer hunting was considered a sign subject to regulation
under a zoning ordinance prohibiting signs larger than 1 square foot. The
Court found that the painting, which included the phrase, "Who asked the
deer?" was a sign within the meaning of the zoning regulation because "it is
undisputed that the plaintiff wanted to convey the message that killing deer
was wrong and that she was opposed to it." Id. at 382.
6
The common theme in both of these decisions is that the courts will not
be bound by strict conventional considerations in defining a sign. In both
cases cited above, the courts looked at the "purpose" of the sign to determine
whether it was meant to convey a specific message or was designed to attract
attention to a specific use, product, service or activity.
Applying the analysis of the Schwartz and Kroll cases to the present
case, it is my opinion that the structure would be found to constitute sports
memorabilia rather than a sign, since its purpose is no longer to convey a
specific message to the public. The South Windsor Zoning Regulations define
"sign" as
any device, fixture, placard, or structure that uses any color, form,
graphic, illumination, symbol, logo, or writing to advertise,
announce the purpose of or identify the purpose of a person or
entity, or to communicate information of any kind to the public.
Flags, banners, streamers or any material, rigid or flexible,
displayed to convey a message, meaning or attraction to the public
are considered signs in the meaning above. Federal, State and
local municipal flags are exempt. (emphasis added)
There has been no suggestion that the structure in question "advertises a
person or entity" or "announces a purpose or identity of a person or entity."
Thus, whether the structure in question is a "sign" depends on whether its
purpose is "to communicate information of any kind to the public." There is no
question that the structure served this precise purpose when it was placed by
the State on Interstate 84. At that time, it was meant to communicate specific
7
information to the public relating to championships won by various UConn
teams. The question is whether it still serves this purpose.
The structure in question was purchased at a charitable auction of
UConn supporters for substantially more than its market value as a sign. It is
being displayed in a residential backyard which cannot even be seen from the
public street on which the owner's house is located. It can be seen at times
during the year from a public street located several hundred feet away, but its
location certainly does not support any claim that its use is for the purpose of
communicating information to the public on those streets. It also can be seen
from the houses and yards of several neighbors, but this once again does not
support any claim that its use is for the purpose of communicating information
to the general public.
These facts strongly suggest that the sign's purpose is no longer to
convey information to the public, but that its real value is as apiece of sports
memorabilia. The fact that it is being displayed in one's backyard would not
change its function as sports memorabilia. It does, however, support the
argument that the purpose of the structure is not to convey a message to the
public, where that message would be better conveyed on the front lawn of the
property or in some more conspicuous place on the property.
By way of example, sports collectors pay hundreds and even thousands
of dollars for autographed baseballs, footballs and basketballs. A recent
record-breaking home run baseball allegedly netted its owner a million dollars.
8
Clearly, that ball was previously a baseball, but it would be absurd to suggest
that the individual who purchased the ball will be using it to play baseball or
give to his or her child to have a game of catch with some neighborhood
children. Its purpose has obviously changed to that of sports memorabilia, to
be displayed and admired.
Unfortunately, much of the letter of complaint filed by the neighbors
shows a common misunderstanding of zoning law. The fact that a neighbor
chooses to decorate or display things on his property that may be aesthetically
unpleasing or may even lower the property values of a neighboring property is
not relevant to whether a municipality can restrict an owner's use of his
property. It may well be that the presence of this large bright blue structure is
annoying, disruptive and upsetting to the neighbors, but this alone does not
empower the Town to act.
The cases which have considered this area of law have long noted that
one person's "thing of beauty" is another person's "hideous eyesore," and
neither the courts nor municipalities should interfere with matters of taste.
Residents are allowed to decorate their homes as they see fit, within certain
specific parameters. One could make the same claims as those appearing in
the complaint letter if the owner at 24 Jessica Drive were to paint his home a
hideous color or group of colors. This would clearly affect the aesthetics of the
neighborhood and quite possibly even lower land values to surrounding
properties. This is a classic example, however, of where the Town is powerless
9
to regulate the activity of property owners, except under very limited
circumstances not relevant to the present case.
Not far from the sign in question is a large barn which the property
owner has painted bright pink. No doubt there are many neighbors who find
this offensive and would argue that this may affect resale values of their
property. The Town, however, has no jurisdiction or power to regulate such a
situation unless the Town can demonstrate that it constitutes a legitimate
safety or health hazard. Aesthetics, annoyance and land values do not
determine when and whether the Town may act. A neighbor may find
annoyance in the activities of neighborhood children, or neighborhood animals,
or lawn decorations, but this does not empower the Town to act to prohibit
such things, unless they raise legitimate public health or safety concerns, at
least not in the residential zone in which the current structure is located.
For- the reasons cited above, it is my opinion that the structure in the
backyard at 24 Jessica Drive does not fall within the definition of "sign" as it
appears in the South Windsor Zoning Regulations because the structure's
purpose is not "to communicate information of any kind to the public." It is my
opinion that the structure constitutes sports memorabilia, and not a "sign,"
and therefore is not subject to the sign regulations at Section 17 of the South
Windsor Zoning Regulations.
In providing this legal opinion, I must emphasize that I believe that this
is the most likely finding by a court if presented with this set of facts. It must
10
be made clear, however, that the opposite argument, i.e., that the structure
was once a sign and is still a sign, subject to regulation, is not a frivolous or
totally unreasonable argument. While a court could find that the structure is a
sign subject to regulation, it is my opinion that this is a much less likely result
than a finding as outlined in this opinion. The residents may also have civil
remedies if they can convince a court that the sig
n constitutes a private
nuisance.
BDG/mpg
11
10'NN 8f�
G
O-Psou� ?d
1540 SULLIVAN AVENUE • SOUTH WINDSOR, CT 06074
soa•Co� TELEPHONE (860) 644-2511
March 4, 2003
Mr. Jerry McGuire
139 Newmarker Road
South Windsor, CT 06074
SUBJECT: 24 Jessica Drive
UCONN Memorabilia
Dear Mr. McGuire:
This letter is in reference to the large "University of Connecticut" memorabilia that is present at the
subject location. The South Windsor Planning Department concurs with Town Attorney Barry Guliano's
opinion that there are no zoning violations concerning the sign in a residential zone. Enclosed is the
Town Attorneys opinion.
Sincerely,
� �(, 0
Joy L. O'Connor
Zoning Enforcement Officer
cc: Director of Planning
Town Attorney
Mr. Tim Howe
Mr. Pete Lisowski
towX 84t
n 0 �•
1540 SULLIVAN AVENUE• SOUTH WINDSOR,CT 06074-2786
���OSOR•co�'�� AREA CODE 860/644-2511
FAX$60/644.3781
March 19,2003
Mr.Daniel Polo
24 Jessica Drive
South Windsor,CT 06074
Dear Mr.Polo:
RE:ZBA APPLICATION SUBMITTED BY JERRY MCGUIRE
The enclosed Zoning Board of Appeals application has been filed. A public hearing has been
scheduled for Thursday, April 3, 2003 at 7:30 PM in the Council Chambers of the Town Hall. I
enclosed a copy of the legal notice for you as well..
Sincerely,
t
Michele R.Lipe,AICP
Assistant Director of Planning
ML
cc: Zoning Board of Appeals file
v `�
s
•. 1540 SULLIVAN AVENUE• SOUTH WINDSOR, CT 06074
'�OsoR-c°`' TELEPHONE (860) 644-2511
July 17, 2003
CERTIFIED#70020510000081151928
Mr. Jerry McGuire
139 Newmarker Road
South Windsor, CT 06074
Re: Appl. #2571-03—Jerry McGuire,24 Jessica Drive,A-30 Open Space zone.
Dear Mr. McGuire:
At the meeting of the South Windsor Zoning Board of Appeals held on July 10, 2003, the Board
denied your appeal from the Zoning Enforcement Officers decision that a sign violation does not
exist in the backyard of property located at 24 Jessica Drive,A-30 Open Space zone.
The Board agreed with the Town Attorney's opinion that this memorabilia is not considered to be a
sign.
Very truly yours,
Robert Warren, Chairperson
Zoning Board of Appeals
RW:dr
cc: Building Department
June 18, 2003
Via e-mail
To: Michelle Light, Assistant Director of Planning, Town of South
Windsor
Re: Zoning Board of Appeals Appeal No. 2571-03
This is to request an extension of the 65-day period for the Town of
South Windsor Zoning Board of Appeals to act in the above-referenced
matter.
It is my understanding that by requesting this extension, the board can
vote on this matter at its regularly scheduled July 10, 2003 meeting.
If that understanding is incorrect and the board must vote on this
matter before that date, please contact me.
Also, please be advised that it is unlikely that this appeal will be
withdrawn and that (unfortunately) a vote will be needed to bring this
matter to a conclusion.
Jerry McGuire
139 Newmarker Road
South Windsor, CT
644-7461
O
C
W
L
Town of South Windsor General Map N
Connecticut ROAD NAMES
*--11,11
Date Printed: April 22,2003 PARCELS
0 500 Feet
Property boundaries are derived from the Town of South Windsor Tax Assessor maps,digitized at a scale of 1 inch=100 feet,and include the same data limitations and disclaimer as the Assessors maps.
All other data portrayed is representation only and,due to inherent mapping limitations,should be used as a guide only. The intent of this map is to present a graphical representation of property boundarie
and selected data,and the map is subject to change as more accurate surveys may disclose. Property boundaries mapped as of June 4,2001.
Zoning Enforcement Officer �`
Town of South Windsor OCODO
cs, �J RECEIVED
Town Planner JUL 2 2 2002
Town of South Windsor
South Windsor, CT 06074 SOUTH WINDSOR PLANNING DEPT.
Re: 24 Jessica Drive
The following is a formal complaint by the undersigned that the large blue highway sign
with white lettering standing in the backyard of 24 Jessica Drive commemorating the
1999 University of Connecticut men's basketball national championship—a sign that
formerly stood near Exit 68 on Interstate 84 in Tolland—is in violation of the town
ordinances concerning signs in residential zones. It is clearly visible to our homes as well
of those of our neighbors.
We believe the presence of this sign stands in violation of many of the provisions set
forth in Section 17 of South Windsor's Zoning Regulations.
This sign negatively affects both the aesthetics and property value of this neighborhood.
Additionally,the sign is a potential traffic hazard: drivers heading north on Newmarker
Road or turning west onto Debbie Drive from Newmarker can easily see the sign and
could be distracted by it. The sign will be much more visible when the leaves fall,thereby.
exacerbating the negative effects listed above.
All the undersigned are longtime residents of South Windsor. We are very much aware
that the town vigoriously enforces regulations concerning decks, sheds,fences,pools,-
numbers on houses,etc. The sign in question,in our opinion,is the most egregious
violation of town regulations that we have seen in our neighborhood.
This sign was made by the state of Connecticut's Department of Transportation highway
sign division.-It was created for the express purpose of being seen and read at a distance
by drivers and passengers traveling at 65 mph on I-84 approaching Exit 68. It did not stop.
being a sign when it was planted in the backyard of 24 Jessica Drive. It can be easily seen
and read by many more people than just the residents and guests at 24 Jessica.Drive.
Many signs are created to honor championship sports teams,and there are many avid
sports fans who live in our town. Surely it is not in the town's best interest to have similar
commemorative signs sprouting up throughout our neighborhoods.
We would like the town to take action,enforce the well-reasoned and well thought-out
provisions of Section 17,and initiate action toward removal of this sign.
Sincerely,
e McGuire 4(
Tun Howe ete Lisowski
139 Newmarker Road 205 Debbie Drive 147 Newmarker Road
South Windsor, CT South Windsor, CT South Windsor, CT
` f
( 6t ' IJi YC Cit�� Z ia�f�lt6t ftryE '��fti 'dl ��\
' ' ® ? blyll[ �S ,,f� Q�ikiAL INQUIRER ° O O �+ o n n
g
n ociscontent. IVe�g�ibu,CbA. c' lyard clay
By Joe Ax
Journal Inquirer
SOUTH WINDSOR—Daniel Polo is an
unabashed University of Connecticut sports
fan..
Y
"I follow,pretty much all.UConn sports,
he says.
If people-have any doubt of that, they can
head over to his Jessica Drive house, where
he has mounted to the back of his house a '
giant blue highway sign commemorating sev-
eral UConn championship teams —a piece
Y
of memorabilia that has irked at least one --- -
.,
neighbor.
It also raises a question that's harder to
answer than it seems:What,exactly,qualifies
as a sign? N<<, u,
The sign was auctioned off as part of an
• a
q
annual UConn sports memorabilia auction ""'
The proceeds from the auction which
includes everything from jerseys to signs to
pieces of the gym floor from the Final Four, "
are used to pay athletic scholarships, Polo
says
The sign,which cost Polo$1,500,was one
of pair that stood off Interstate 84, one in
each direction, just before Exit 68, where
travelers get off the highway to reach the
UConn campus. It celebrates the university
as the home of several regional and national
championship teams, including field hockey,
men's and women's soccer, and, of course, Adrian Keating Journal Inquirer
men's and women's basketball. This UConn sign adorns a back yard on Jessica Drive in South'Windsor.
F,very time.a UConn team wins a regional
or national title,however,the university com- regulations. pose of a person or entity,or to communicate One neighbor of Polo's, however,, has
missions new signs and replaces the old ones. Zoning regulations clearly prohibit that information of any kind to the public,:' already made up his mind.
At Polo's house, the sign is next to a bas- type of sign in a single-family residence The question is whether the sign in ques- "Your back yard isn't your dorm room or
ketball court, where Polo's two sons and zone. But what isn't clear is whether the our rec room," says the neighbor, who can
daughter play. tion attempts to communicate any informa- Y Y g
g P Y UConn sign meets the zoning regulations' lion to the public or whether it's simply see the sign from his yard.He adds that other
"I thought it would look good out there definition of a sign. memorabilia. neighbors also have expressed dismay at the
with the basketball court,"he says. Whenis a sign not a sign? sign.
But Polo's neighbors don't necessarily Banach asked Town Attorney Barry
agree. According to those regulations, a sign is Guliano to examine that question but, But Polo, for one,is surprised to hear that
Though Polo says none of them has "any device,fixture,placard,or structure that because no formal complaint has been regis- any
has a problem.
approached him about the sign, at least one uses any color,'form,,graphic, illumination, tered, Guliano will not issue his opinion as a' "The way I look at it, it's sports memora-
has called Town Planner Marcia Banach to symbol,' logo,' or writing to advertise, matter of policy. Banach is waiting to see if bilia," he says. "I never thought it would
;-4P„fife,rha rnir_ arrvnnP wichec to file a formal complaint. bother anybody."
MEMORANDUM FEB 272003
SOUTH WINDSOR NNNIND DEpT
TO: Marcia Banach, Director of Planning
Joy O'Connor, Zoning Enforcement Officer
FROM: Barry D. Guliano
Town Attorney
DATE: February 27, 2003
RE: Whether Display of Purported Sign Pertaining to UConn
Athletics is a Violation of the South Windsor Zoning
Regulations
On July, 22, 2003, the South Windsor Planning Department received a
formal written complaint from three residents who charged that a "large blue
highway sign with white lettering, standing in the backyard of 24 Jessica Drive,
commemorating the 1999 University of Connecticut Men's Basketball National
Championship—a sign that, formerly stood near Exit 68 on Interstate 84 in
Tolland—is in violation of the Town ordinances concerning signs in residential
zones." The complaining residents live behind or to the side of the subject
property, such that the sign can be seen from their backyards. You have asked
for my legal opinion as to whether the structure is a violation of the Town's
zoning regulations concerning signs in residential zones.
It is my understanding that the structure in question was obtained by
the owner of 24 Jessica Drive, Dan Polo, during a charity auction. He bid
$1,500 for the structure at the annual UConn sports memorabilia auction. The
proceeds from the auction, which included everything from players' jerseys to
signs, to pieces of the gym floor from the Final Four, are allegedly used to pay
for athletic scholarships. The structure in question was one of a pair of
highway signs that had been displayed on Interstate 84, one in each direction
just before Exit 68, where travelers would get off the highway to reach the
UConn campus.
Mr. Polo has placed the structure in his backyard near his garage and
next to a full-court basketball court which he recently constructed. The
structure cannot be seen from the road in front of Mr. Polo's house (Jessica
Drive), but it can be seen from a portion of Debbie Drive, a roadway to the side
of his house, several hundred feet away. It can also be seen between the trees
from some portions of Newmarker Road, which runs behind the Polo property.
The structure can most-definitely be seen from the homes and backyards of the
complaining neighbors, at least one of whom has a pool in his backyard from
which the structure is clearly visible.
The South Windsor Planning and Zoning Commission is empowered to
regulate signs by Section 8-2 of the Connecticut General Statutes, which
specifically allows zoning commissions to regulate "the height, size and location
of advertising signs and billboards." But the regulation of signs has produced
a great deal of litigation over the years because of the competing interests
between a municipality's police powers and a resident's freedom to use and
decorate their property and their first amendment rights of expression.
2
In general, it has been held that a town may regulate signs through its
zoning laws where it is regulating only "height, size and location" of signs.
Municipal regulation of signs has been held to be unlawful, however, where it
is extended to include the color of signs, Capalbo v. Planning 8v Zoning Board
of Appeals of Town of Greenwich, 208 Conn. 480, 490-492 (1988), or the
content of signs. See Linmark Associates, Inc. v. Willingboro Township, 431
U.S. 85 (1977); Virginia State Board of Pharmacy v Virginia Citizens Consumer
Council, Inc., 425 U.S. 748 (1976). Distinctions have also been made between
commercial signs and non-commercial signs, which may involve first
amendment rights.
It has generally been held that the municipality must base its regulation
of signs on some rationale involving its police powers, which are limited to
regulating the public health or safety. There has been a continual battle as to
whether regulation solely for the purposes of aesthetics is a valid rationale
under a town's police powers. Connecticut courts have generally held that
municipalities cannot regulate signs or any other zoning matter based upon
aesthetics, except in certain very limited situations not relevant to the present
case. This is because Connecticut statute arguably does not provide for such
jurisdiction and aesthetics are very subjective. One person's "thing of beauty"
is another person's "hideous eyesore."
- The fact that aesthetic considerations may have influenced the zoning
commission in enacting regulations does not, however, make them invalid as
3
long as other considerations were also involved which relate to the town's
police powers. Murphy, Inc. v. Town of Westport, 131 Conn. 292, 296-299
(1944). The United States Supreme Court has further held that regulations
pertaining to the size of signs are related to the police powers because signs
"take up space, may obstruct views, distract motorists, displace alternative
uses of land and create other problems." Thus, while aesthetics and protecting
property values may not be valid purposes for sign regulations, such
regulations are allowable where they can also be shown to serve the purpose of
protecting public health or safety. City of Ladue v. Gilleo, 510 U.S. 1037
(1994).
The South Windsor Zoning Regulations provide numerous regulations
pertaining to signs in Section 17. At Section 17.1, the purpose of the sign
regulations is stated to be
to permit such signs that will not, by their reason, size, location,
construction, or manner of display endanger the public safety of
individuals; confuse, mislead or obstruct the vision necessary for
traffic safety; or otherwise endanger public health, aesthetics,
property values, and safety; and to permit and regulate signs in
such a way as to support free speech and complement. land-use
objectives set forth in the Town Planning and Zoning Regulations
and Town Plan of Development for the Town of South Windsor,
Connecticut.
The regulations further describe their applicability and effect in the
following:
The effect of this regulation is to permit signs in all residential,
commercial and industrial zones subject to the standards and
permit procedures set forth in this regulation; to allow certain
4
signs that are small, unobtrusive, and incidental to the principal
use of the respective lots on which they are located, subject to the
requirements of this regulation but without a requirement for
permits; to provide for temporary signs without commercial
messages in limited circumstances in the public right of way; to
prohibit all signs not expressly permitted by this regulation; and to
provide for the enforcement of the provisions of this regulation.
At Section 17.8, the regulations describe the types of signs which will be
permitted in various zones. Specifically, in Section 17.8.2, the types of
permitted signs in single-family residence zones are described. These would
apply in the present case, as the area in question is zoned for single family
residences.
Before looking further at the specific regulations pertaining to signs
within this zone, however, it is necessary to determine whether or not the
structure in question is a "sign" as defined within the regulations. A zoning
commission has some discretion in defining what is a "sign" for purposes of the
zoning regulations, but is generally held to strict construction of that definition,
considered in the context of the enabling statute, Section 8-2 of the
Connecticut General Statutes, which refers to "advertising signs."
The opinions in two cases, one by the Connecticut Supreme Court and
one by the Connecticut Appellate Court, shed light upon the types of factors to
be considered in determining whether a structure is a "sign" for purposes of
zoning regulation. In Schwartz v. Planning & Zoning Commission of Town of
Hamden, 208 Conn. 146 (1988), the Connecticut Supreme Court held that a
32-foot high aluminum cylindrical structure displaying the word "Landmark"
5
located at the entrance to a shopping center known as Hamden Plaza was a
sculpture or work of art and not a sign subject to regulation. The court in
Schwartz first noted that zoning regulations and ordinances must be strictly
construed and not extended by implication because they are in derogation of
common law. Id. at 153. The zoning regulation in question defined a sign to
include "any object, device, display or structure which is used for attracting
attention to any use, product, service or activity, . . . ." The Supreme Court
ruled that the structure did not fit within this definition because, although it
was a unique sculpture that would no doubt attract attention to itself, it
nevertheless did not attract attention to any "use, product, service or activity"
as defined in the regulation. The court, thus, ruled that the local commission's
finding that the sculpture violated zoning regulations pertaining to signs was
unsupported and, therefore arbitrary and unreasonable.
In Kroll v. Steere, 60 Conn. App. 376 (2000), the Connecticut Appellate
Court held that a 20 square foot mural of a deer which was posted to oppose a
local ordinance on deer hunting was considered a sign subject to regulation
under a zoning ordinance prohibiting signs larger than 1 square foot. The
Court found that the painting, which included the phrase, "Who asked the
deer?" was a sign within the meaning of the zoning regulation because "it is
undisputed that the plaintiff wanted to convey the message that killing deer
was wrong and that she was opposed to it." Id. at 382.
6
The common theme in both of these decisions is that the courts will not
be bound by strict conventional considerations in defining a sign. In both
cases cited above, the courts looked at the "purpose" of the sign to determine
whether it was meant to convey a specific message or was designed to attract
attention to a specific use, product, service or activity.
Applying the analysis of the Schwartz and Kroll cases to the present
case, it is my opinion that the structure would be found to constitute sports
memorabilia rather than a sign, since its purpose is no longer to convey a
specific message to the public. The South Windsor Zoning Regulations define
"sign" as
any device, fixture, placard, or structure that uses any color, form,
graphic, illumination, symbol, logo, or writing to advertise,
announce the purpose of or identify the purpose of a person or
entity, or to communicate information of any kind to the public.
Flags, banners, streamers or any material, rigid or flexible,
displayed to convey a message, meaning or attraction to the public
are considered signs in the meaning above. Federal, State and
local municipal flags are exempt. (emphasis added)
There has been no suggestion that the structure in question "advertises a
person or entity" or "announces a purpose or identity of a person or entity."
Thus, whether the structure in question is a "sign" depends on whether its
purpose is "to communicate information of any kind to the public." There is no
question that the structure served this precise purpose when it was placed by
the State on Interstate 84. At that time, it was meant to communicate specific
7
information to the public relating to championships won by various UConn
teams. The question is whether it still serves this purpose.
The structure in question was purchased at a charitable auction of
UConn supporters for substantially more than its market value as a sign. It is
being displayed in a residential backyard which cannot even be seen from the
public street on which the owner's house is located. It can be seen at times
during the year from a public street located several hundred feet away, but its
location certainly does not support any claim that its use is for the purpose of
communicating information to the public on those streets. It also can be seen
from the houses and yards of several neighbors, but this once again does not
support any claim that its use is for the purpose of communicating information
to the general public.
These facts strongly suggest that the sign's purpose is no longer to
convey information to the public, but that its real value is as a piece of sports
memorabilia. The fact that it is being displayed in one's backyard would not
change its function as sports memorabilia. It does, however, support the
argument that the purpose of the structure is not to convey a message to the
public, where that message would be better conveyed on the front lawn of the
property or in some more conspicuous place on the property.
By way of example, sports collectors pay hundreds and even thousands
of dollars 'for autographed baseballs, footballs and basketballs. A recent
record-breaking home run baseball allegedly netted its owner a million dollars.
8
Clearly, that ball was previously a baseball, but it would be absurd to suggest
that the individual who purchased the ball will be using it to play baseball or
give to his or her child to have a game of catch with some neighborhood
children. Its purpose has obviously changed to that of sports memorabilia, to
be displayed and admired.
Unfortunately, much of the letter of complaint filed by the neighbors
shows a common misunderstanding of zoning law. The fact that a neighbor
chooses to decorate or display things on his property that may be aesthetically
unpleasing or may even lower the property values of a neighboring property is
not relevant to whether a municipality can restrict an owner's use of his
property. It may well be that the presence of this large bright blue structure is
annoying, disruptive and upsetting to the neighbors, but this alone does not
empower the Town to act.
The cases which have considered this area of law have long noted that
one person's "thing of beauty" is another person's "hideous eyesore," and
neither the courts nor municipalities should interfere with matters of taste.
Residents are allowed to decorate their homes as they see fit, within certain
specific parameters. One could make the same claims as those appearing in
the complaint letter if the owner at 24 Jessica Drive were to paint his home a
hideous color or group of colors. This would clearly affect the aesthetics of the
y neighborhood and quite possibly even lower land values to surrounding
properties. This is a classic example, however, of where the Town is powerless
9
j
to regulate the activity of property owners, except under very limited
circumstances not relevant to the present case.
Not far from the sign in question is a large barn which the property
owner has painted bright pink. No doubt there are many neighbors who find
this offensive and would argue that this may affect resale values of their
property. The Town, however, has no jurisdiction or power to regulate such a
situation unless the Town can demonstrate that it constitutes a legitimate
safety or health hazard. Aesthetics, annoyance and land values do not
determine when and whether the Town may act. A neighbor may find
annoyance in the activities of neighborhood children, or neighborhood animals,
or lawn decorations, but this does not empower the Town to act to prohibit
such things, unless they raise legitimate public health or safety concerns, at
least not in the residential zone in which the current structure is located.
For the reasons cited above, it is my opinion that the structure in the
backyard at 24 Jessica Drive does not fall within the definition of "sign" as it
appears in the South Windsor Zoning Regulations because the structure's
purpose is not "to communicate information of any kind to the public." It is my
opinion that the structure constitutes sports memorabilia, and not a "sign,"
and therefore is not subject to the sign regulations at Section 17 of the South
Windsor Zoning Regulations.
In providing this legal opinion, I must emphasize that I believe that this
is the most likely finding by a court if presented with this set of facts. It must
10
. J '
be made clear, however, that the opposite argument, i.e., that the structure
was once a sign and is still a sign, subject to regulation, is not a frivolous or
totally unreasonable argument. While a court could find that the structure is a
sign subject to regulation, it is my opinion that this is a much less likely result
than a finding as outlined in this opinion. The residents may also have civil
remedies if they can convince a court that the sign constitutes a private
nuisance.
BDG/mpg
11
r
SOW N 8,4
70-wn Olesoa;,%
m �
1540 SULLIVAN AVENUE • SOUTH WINDSOR, CT 06074
�OSOR-c° TELEPHONE(860) 644-2511
March 4, 2003
Mr. Jerry McGuire
139 Newmarker Road
South Windsor, CT 06074
SUBJECT: 24 Jessica Drive
UCONN Memorabilia
Dear Mr. McGuire:
This letter is in reference to the large"University of Connecticut°memorabilia that is present.at the
subject location. The South Windsor Planning Department concurs with Town Attorney gang Guliano's
Town Attorneys opinion.
opinion that there are no zoning violations concerning the sign in a residential zone. Enclosed is the
Sincerely,
� �(, 0
Joy L. O'Connor
Zoning Enforcement Officer
cc: Director of Planning
Town Attorney
Mr. Tim Howe
Mr. Pete Usowski
To.
Marcia Banach, Town Planner, Town of South Windsor
Robert Warren, Chairman, South Windsor Zoning Board of
Appeals
From: Jerry McGuire, 139 Newmarker Road, South Windsor
Re: Highway sign in backyard of 24 Jessica Drive
I am in receipt of the town attorney' s opinion dated Feb.
27 that the sign referenced above is not in violation of
Section 17 of the town' s zoning ordinances regarding signs.
Based on my discussions with Ms . Banach last summer, I
anticipate the zoning enforcement officers will concur with
this opinion.
Thus, in expectation of an official ruling the sign is not
a sign subject to zoning enforcement, I would like to refer
this matter to the Zoning Board of Appeals .
It is my understanding the board is to meet in early April.
If possible, I would like this matter to be heard at that
meeting. As this issue started in mid-July of last year, my
hope is that it can be resolved quickly, especially now
that we finally have the opinion from the town attorney.
I plan on presenting my case and response to the attorney' s
opinion at that meeting.
In advance of hearing, Mr. Warren and the other members of
the Board of Appeals are welcome to visit my house so they
can fully appreciate the view that I (and my neighbors)
have of the sign in question.
Please know that I attempted to download an "official"
appeal form from the town' s website but was unsuccessful.
Please advise if I need to act further to have this matter
heard by the Zoning Board of Appeals .
Sincerely,
Jerry McGuire
CYY741
www.UConnHuskies.com Page 1 of 2
Home I About UConn Athletics I Directions I Schedules I Tickets I Facilities I Staff I Sponsors
, r
Baseball
Men's Basketball z _ :z
women's Basketball
Men's Cross Country
women's Cross country 2002-2003 Board of Directors
Field Hockey
Football
OfficersMen's Golf
Men's Ice Hockey
women's Ice Hockey President: Paul Young
women's Lacrosse Vice President: Paul Samele, Sr.
women's Rowing Treasurer: John Drisco
Men's Soccer Assistant Treasurer,
NNW
women's Soccer Secretary: Bill DeGrazia
Softball
Men's Swimming&Diving
women's swimming&Diving Board Members
Men's Tennis
women's Tennis Greg Atterberry
Men's Track&Field Laura Cahill
women's Track&Field Dr. Rob Crovo
Women's volleyball Kim Demsey
Stephen Gabriel
Steven Germaine
Bob Goodman
Richard Guandalini
Ron Jones
Alfred Kelland
John Leandri
The Hon. Austin McGuigan
Jim Oieksiw
Russell Ordway
Dr. A.J. Pappanikou
Ron Pugliese
Mark Sinatro
Joe Walkovich
In order to become a candidate for the The UConn Club Board of Directc
submit your name to the nominating committee of the The UConn Club,
Athletic Development Office. The Board of Directors meets once a montl
annual meeting is typically held in May or June. All members of The UCc
welcome to attend the Annual Meeting.
http://www.uconnhuskies.com/MainLinks/UConnClub/board.html 5/1/2003