MEMBERS PRESENT: Chairperson Robert Warren, Marjorie Anthony, Thomas Berstene, Teri Dickey-Gaignat and Stephen Wagner
ALTERNATES PRESENT: Paul Oates and Tim Moriarty
Chairperson Warren called the meeting to order at 7:30 p.m. The Recording Secretary read the legal notice as published in the newspaper.
Appl. #2571-03 – Jerry McGuire, 139 Newmarker Road, request for an appeal from the Zoning Officer’s decision that a sign violation does not exist in the backyard of property located at 24 Jessica Drive A-30 Open Space zone.
Town Attorney Barry Guliano came to inform the Board that this proceeding is an appeal from the decision of the Zoning Enforcement Officer. The appellant will need to establish aggrievement before jurisdiction is recognized and the appeal can go any further. As referenced in the South Windsor by-laws for the Zoning Board of Appeals, the Connecticut State Statutes establish jurisdiction for Zoning Board of Appeals and this appeal is regulated under section 8-7 of the Connecticut State Statutes.
Mr. Jerry McGuire of 39 Newmarker Road came before the Commission to represent this appeal. He explained that the two gentlemen who signed the original complaint were also present, Mr. Tim Howe of 205 Debbie Drive and Mr. Pete Lisowski of 147 Newmarker Road. Mr. McGuire stated that this was a highway sign that was located at exit 68 in Tolland. The letters are large enough so people driving by on the highway at 65 mph were able to read it. When lights hit this sign the letters reflect and glow in the dark. Mr. McGuire stated that in the Town Attorney’s opinion, the sign is categorized as “sports memorabilia” which Mr. McGuire stated is ludicrous. This sign is creating a very bad precedence. The location of this sign is in the rear yard at 24 Jessica Drive. It faces outward towards the backyard and the only time the occupant sees this sign is if he goes into his rear yard. Mr. McGuire stated that Mr. Howe, Mr. Lisowski and himself see this sign every day. In the Town
Attorney’s letter, it is suggested that the sign would be more of a problem if it were in the front yard. Mr. McGuire stated he would contend that their rights of neighbors in the rear yard are no less than the rights of neighbors in the front yard.
Town Attorney Barry Guliano came before the Board to speak in opposition to this appeal. He stated that this situation began with a complaint from Mr. McGuire, Mr. Howe and Mr. Lisowski. The Zoning Enforcement Officer asked for a legal opinion and based on that opinion decided the sign was not with the local regulations of what defines a sign and therefore it was felt it was not in violation. The sign was purchased at a charity auction and Attorney Guliano submitted for the record a series of photos showing the visibility of the sign in different locations. The sign is not visible from the street on which this house exists (Jessica Drive). The sign is visible from portions of Newmarker Road and Debbie Drive. The law is very clear that the Town is allow to
regulate signs, but only in certain instances. There is not a blanket authority for the Town to regulate signs. The Town also can not regulate the contents or aesthetics of a sign. If the purpose of a structure is to advertise, the Town will consider it a sign and regulate it. This particular structure’s purpose is not to convey a message to the public, therefore it should not be considered a sign and can not be regulated by the Town. The placement of this structure can only be seen by very few individuals. The location of a sign is also used in determining if it is being used to convey a message to the public. The purpose of this structure is to be a memory, souvenir or remembrance of an event that took place.
Attorney Sol Kerensky came before the Board to represent Mr. Dan Polo who is the owner at 24 Jessica Drive. He stated that he concurs with the statements and legal opinion issued by Town Attorney Barry Guliano.
Questions and Comments
Mr. McGuire expressed that the way this sign was acquired should not be germane to this discussion. It was also stated that the sign could only be seen by a limited number of people (McGuires, Howes and Lisowskis). Mr. McGuire stated that he has a hard time understanding how their rights would be less than the general public. Mr. McGuire also felt that the sign does communicate a message to the public.
Answering questions from the Board, Attorney Guliano explained that four votes would be necessary to reverse the decision of the Zoning Enforcement Official. The Town can not regulate with aesthetics being the only motivation unless its one of the exceptions such as in the historical district. If the Board finds that the purpose of this structure is to convey information to the public, it would be considered a sign and the Town would regulate it. Therefore, the first obligation of the Board is to determine whether or not they feel the structure is a “sign” as defined in the Town of South Windsor regulations.
Commissioner Wagner suggested that Mr. McGuire, Mr. Howe, Mr. Lisowski and Mr. Polo meet and try to find a solution to this situation.
Commissioner Anthony concurred with Mr. Wagner’s suggestion and felt that communication is very important.
Commissioner Moriarty stated that he felt that this structure should be considered a sign because he felt that it is conveying a message to whoever looks at it. Commissioner Moriarty also felt that too much time has been occupied with this situation and feels the four residents involved should be able to find a solution.
Attorney Kerensky explained that the structure was not intended to convey information to the public. It’s main purpose is for personal reasons only. Mr. Polo only erected the structure after
having discussions with Town staff. Attorney Kerensky also told Board members that Mr. Polo’s neighbors have never approached him to speak about this matter.
Attorney Guliano again explained that the Board needs to decide whether the structure falls under the definition of a sign. Is this structures purpose to communicate information to the public? The alternatives available to the neighbors if this Board feels this structure is a sign would be a lawsuit for a public nuisance. If the neighbors could convince the court that this structure has an incredible impact on property values because of the aesthetics, action may be taken.
With no further questions, the public participation portion of this appeal closed at 9:23 p.m.
DELIBERATIVE SESSION
ITEM: Appl. #2571-03 – Jerry McGuire – 24 Jessica Drive, A-30 Open Space zone
Board members had a discussion on this appeal and it was the unanimous decision of the Board to table the decision until the next scheduled meeting.
Motion to: Table appl. #2571-03 – Jerry McGuire, 139 Newmarker Road, an 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.
Was made by Commissioner Wagner
Seconded by Commissioner Berstene
The motion: carried
The vote was as follows: unanimous
ITEM: Minutes
Motion to: approve the April 3, 2003 minutes.
Was made by Commissioner Berstene
The motion: carried
The vote was as follows: unanimous
ITEM: Adjournment
Motion to: adjourn the meeting at 9:35 p.m.
Was made by Commissioner Berstene
The motion: carried
The vote was as follows
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Deborah W. Reid, Recording Secretary
Zoning Board of Appeals
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