Billboard Builders Battle

A desolate, industrial stretch of land in the Annex is now the site of a billboard dispute — as two neighboring property owners jockey for position to determine who will get to show ads to highway drivers.

That Battle of the Billboards, so to speak, came into view Wednesday night during the latest monthly online meeting of the City Plan Commission.

The debate raises the question of whether or not a long-permitted but unbuilt billboard still counts in the eyes of city and state government as an active project. 

And — given a local spacing minimum of 1,500 feet and a state spacing minimum of 500 feet — does that mean a new billboard shouldn’t be approved right across the street from one that has been nearly two decades in the making, but still hasn’t arrived? 

The catalyst for Wednesday’s debate was an application by Scott Levine of Kenjoh Outdoor Advertising for a special permit to install a ​“dynamic display billboard” in a heavy industrial (IH) zone at 40 Edgemere Rd. 

That 0.15-acre property is currently home to a single-story service garage. It’s been owned since 2012 by MJJ Associates LLC, a holding company controlled by Wallingford’s Richard McCormack.

If approved and constructed, the billboard would be a total of 65 feet tall, including 30 feet above the highway. It would consist of a singled-sided sign facing westbound traffic on I‑95. The sign face itself would be 14 feet tall by 48 feet wide. (This isn’t the first time Kenjoh has tried to build a billboard in New Haven. Click here to read about how the Board of Zoning Appeals rejected the company’s bid to install a highway-facing electronic billboard on Water Street last July.)

Orange-based attorney (and former Republican gubernatorial candidate) Tim Herbst joined Levine in presenting the special permit application to the commissioners on Wednesday.

Herbst focused his part of the presentation on arguing that this project is zoning compliant. 

City Plan staffer Alexander Castro made clear at the top of Wednesday’s public hearing that the application does conform with the relevant sections of the city’s zoning code.

“Though the proposal is zoning compliant,” Castro read from the staff report, ​“the commission must also consider the sign in the context of New Haven’s comprehensive plan. In this regard, the proposal is not expressly supported.” Several sections of the Vision 2025 plan reference limiting signage in a variety of different types of developments, he read. ​“The comprehensive plan does not call out billboard signs by name, but the sections above suggest a sentiment against them.” Therefore, staff chose not to make a recommendation either against or in support of the proposal.

Herbst pushed back on the department’s decision not to issue a recommendation, even though the department recognized that the billboard project complies with city zoning. 

In particular, Herbst and Levine pointed out that this new proposed billboard would be located more than 1,500 feet away from the next closest billboard, as city zoning law requires. (Actually, as Levine said, city zoning law requires that billboards be placed no closer than 1,500 apart only if they are facing the same direction of the highway. The relevant law describes the local-distance prohibition as, ​“Within 1,500 feet of another off-premises sign, measured from the closest points between such signs on the same side of a limited access highway oriented to the same travel direction.”)

Herbst said that, if the city ​“as a matter of public policy” wants to discourage billboards from being constructed in areas like where 40 Edgemere is, then the city needs to amend its zoning regulations ​“to incorporate those advising recommendations.” 

What the commission should not and, legally, cannot do, he said, is deny a zoning-compliant application ​“solely on language contained” in the comprehensive plan.

Before ceding the floor to members of the public interested in testifying on the matter, Herbst acknowledged that he had received a phone call and email soon before Wednesday’s meeting from a lawyer representing an abutting property owner.

What About The Unbuilt Billboard Across The Street?

Sure enough, the only member of the public to testify on the matter Wednesday night was that same lawyer — local attorney Karen Baldwin Kravetz, representing Ronsal Limited Partnership.

That limited partnership, controlled by North Haven’s Ronald Esposito, has owned a 0.73-acre vacant lot across the street at 85 Kendall St. since 2000.

Kravetz argued during her public testimony that her client, and not Herbst’s client, is the one that should be allowed to build a highway-facing billboard in this area.

She said that her client applied for a special permit and site plan approval in 2007 to erect a billboard at 85 Kendall. She said the City Plan Commission approved both of those applications.

“That approval was appealed by abutters,” Kravetz said. ​“That appeal took four years to resolve.” In April 2011, she said, the court upheld the City Plan Commission’s approval of the 85 Kendall billboard plan. 

Ronsal Limited Partnership then obtained a building permit from the city, and erected a foundation for the billboard as well as roughly 10 feet of pipe. ​“That is all that’s in place today.”

The company then went to the state Department of Transportation (DOT) Office of Right of Ways to get the required state approval for a billboard at this site, which she said they received in 2014.

Since then, she continued, her client has paid the requisite annual fee to the state ​“to maintain that site as an active site where a billboard could be constructed.” Even though one has yet to be constructed.

“As far as we know, that permit is still valid and in place.”

Kravetz added that the state requires that billboards be placed at least 500 feet apart. 

“Even if the city approval is granted, no billboard can be built [at 40 Edgemere] because there’s an active billboard within 500 feet of this location,” she concluded.

Herbst responded by saying, first, he had to factcheck Kravetz’s assertions and wasn’t sure if they were all true.

But, assuming that what she said was accurate, he still urged the commissioners to grant the locally requested special permit for the 40 Edgemere billboard.

This proposed new billboard complies with New Haven zoning law, he said. If it doesn’t comply with state DOT distance requirements, then that’s up to the state to decide. 

Leave the relevant state agency to decide on state matters, and the relevant city agency to decide on city matters, he urged the commission. ​“One administrative agency should not be enforcing the regulations of another. Through all the noise, we have to keep our eye on the ball here.”

The commissioners ultimately decided not to vote on the matter on Wednesday — and continued the public hearing until next month as they and city staff looked into the relevant permitting and distancing considerations.

Westville Alder and City Plan Commissioner Adam Marchand noted that city zoning law appears to indicate that, if the commission were to approve the new billboard application, that could abolish or otherwise harm what might still be a perfectly valid approval retained by the neighboring property owner for a billboard on their site.

“I think there’s more legal complexity than meets the eye,” he said. 

The rest of his colleagues agreed, and the commission decided to keep the matter open until next month.

And what does the state have to say about all this?

State Weighs In

State DOT spokesperson Josh Morgan confirmed for the Independent that his agency issued a billboard permit for 85 Kendall St. back in December 2007. 

“The permittee has paid the annual fee, and it is considered an active permit even without a sign being built,” he wrote.

So would that prevent the owner of 40 Edgemere Rd. from erecting a billboard on their property, given the apparent state prohibition on billboards being placed within 500 feet of one another?

“I won’t be able to address the last part of your question,” Morgan wrote in an email message, ​“as our Rights of Way office would need to review any application from a neighboring property owner.”