{news} Burton gets her political signs back up

[David Bedell]

Burton gets her political signs back up

by Susan Wolf
pilot at acorn-online.com

The Redding Pilot, October 28, 2004

Nancy Burton, the Green Party candidate in the 135th state Senate District 
race, has been successful in getting her signs restored at six locations in 
town.

Ms. Burton was issued a cease and desist order by Zoning Enforcement Officer 
Tom Gormley on Sept. 30 at the behest of the Zoning Commission.  He ordered 
her not to place any future political signs on town property or in public 
rights-of-way and to remove any signs that were in them.  Mr. Gormley told 
her she could have political signs of any kind on personal property or on 
anyone else's personal property with their permission, but not on public 
property.

Zoning Commission Chairman Frank Taylor removed one sign, Mr. Gormley the 
others.

Ms. Burton went to Danbury Superior Court for a temporary restraining order 
to get her signs back up.  Ms. Burton said in a prepared release that by 
allowing others to place signs at these locations to promote events and 
commerce, the town "established a public form and could not, consistent with 
the First Amendment, ban political signs such as mine."  When she appealed 
to the Zoning Commission and the first selectman "to no avail," Ms. Burton 
said she sought judicial relief, but "expressly waived seeking monetary 
damages against the town."

Town Counsel Michael LaVelle, who represented the town, said it was not a 
case "to determine the constitutionality of the Redding zoning reg8lations, 
but merely an application to retain the status quo (keeping the signs up) in 
the form of a temporary restraining order.

Judge Douglas C. Mintz, who presided over the proceedings, questioned why 
the town had unilaterally removed the signs without notice to Ms. Burton.  
He said the order didn't even allow the 10 days required by the town's own 
regulations.  Mr. LaVelle said the cease and desist order was on property 
that the town controlled.  He added the issuance was not out of line "as a 
general practice."

Mr. LaVelle said on Friday that Mr. Gormley's action in removing the signs 
was his customary practice when he felt a sign was interfering with the 
public right-of-way or was on public property.  He added the judge asked him 
by what legal authority could the zoning enforcement officer do this.  Mr. 
LaVelle said he had no prior court decision to give the judge but cited 
zoning regulations and a state statute "which I felt was a constitutional 
basis for the zoning enforcement officer's action.  I argued he did act with 
legal authority."

Legal remedy

According to Mr. LaVelle, he argued that the town didn't need to be in court 
in the first place because Ms. Burton had a legal remedy at her disposal--to 
file an appeal with the town's Zoning Board of Appeals.  That action would 
have resulted in an immediate stay of the cease and desist order, and would 
have allowed her to put her signs back up, he said.  He told the judge that 
the zoning board hearing would not take place until after the election, so 
the signs could stay up until the election in any case.

Ms. Burton said she has been burdened because she's a candidate running for 
public office "and the time is running very short…and now the town is asking 
me to burden myself further to prepare an application, to spend money 
because there's a filing fee…"  She also said the application could not 
grant her the relief she sought.

Judge Mintz said the relief she was seeking, to have the court declare the 
cease and desist order null and void, "…is absolutely something that the ZBA 
can do."

The judge, according to the transcript, said the zoning board could not 
declare the political sign regulation unconstitutional, but it is not 
something the court would do either on an application for a temporary 
restraining order.  On such an application, he said, "I would never reach 
the level of saying definitely that this regulation is unconstitutional."  
However, he said there is "reasonable likelihood that the plaintiff would 
prevail in her claim that the regulation is unenforceable because of it 
being unconstitutional."

The judge later said he was not happy the town took Ms. Burton's signs down. 
  Political signage, he added, "…it's the basis of our freedoms.  It's a 
basic of our, you know, elections."  He said he agreed with Ms. Burton that 
for every second her signs weren't up, "she's being harmed in her political 
campaign."

Conditional order

The judge did not issue a temporary restraining order but did issue "a 
conditional order" that allowed Ms. Burton to immediately put her signs back 
up, for 24 hours, until she filed an appeal with the Zoning Board of 
Appeals, an action she later took.  Had she not filed the appeal, the judge 
said then his order would be gone and the signs would have to come down.

“This is a victory for my campaign. This is a victory for the First 
Amendment. This is a victory for the people,” Ms. Burton said in a prepared 
release.

In her release, Ms. Burton said Mr. Taylor testified that in his 27 years of 
service on the Zoning Commission, where he has never had an opponent, he had 
only personally removed one political sign, and it was hers.  "I am running 
against an opponent, who like Mr. Taylor, is unaccustomed to electoral 
challenge, " said Ms. Burton.

On Monday, Mr. Taylor said that in 27 years, nobody had put a political sign 
on town property "or in a position where I thought it was potentially a 
hazard because it was next to road signs."  Also, he said, the town did not 
have political sign regulations until recently.  Mr. Taylor added that he 
has taken down other signs over the years.

As for his running unopposed, Mr. Taylor said he would be happy "to put my 
record of commitment and support of the community up against hers any day.  
If she wants to run against me for the Zoning Commission, I would be happy 
to engage her in this electoral competition."

During the hearing, said Mr. Taylor, the judge did raise a number of valid 
points "about the imprecision of our regulations."  Most importantly, said 
Mr. Taylor, is the need for a definition of right-of-way since this varies 
from road to road.

Even before the court action, the commission had scheduled a public hearing 
on at least one change to the political signs ordinance, which now prohibits 
signs going up more than 60 days in advance.  The change would not limit the 
time.

In her release, Ms. Burton said the judge had ordered an "expedited 
hearing."  Mr. LaVelle said that was not the case.  The judge requested last 
Tuesday, he said, a hearing as quickly as possible; Mr. LaVelle said 
schedules were rearranged to allow for the court hearing on Thursday of this 
same week.  The judge "was very complimentary of the town's cooperation to 
get this done in such an expeditious manner," said Mr. LaVelle.

Mr. LaVelle also explained the rationale behind the commission's political 
signs regulations.  He said the town's regulations are set up to list what 
is permissible, making anything not listed prohibited.  The Zoning 
Commission was not trying to ban political signs, which he said would be 
unconstitutional, but rather to include them and make them permissible.  The 
Supreme Court, he added, has said there can be some time, place and manner 
limitations.  For instance, signs may not be placed in such a way as to 
become a public hazard.

In her release, Ms. Burton said she took a risk in seeking judicial relief 
"to vindicate my First Amendment rights, and at the same time yours.  Not 
all judges in our state honor their high calling.  I could have been turned 
away even though my case was unimpeachable."

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