Gangemi v. Zoning Board of Appeals

with whom MCDONALD, C. J., and KATZ, J., join, dissenting. The plaintiffs, Sebastian Gangemi and Rebecca J. Gangemi, claim that: (1) the no rental condition imposed by the defendant, the zoning board of appeals of the town of Fairfield (board), in connection with the board’s granting of a setback variance was personal to them and, therefore, void; (2) the board had no jurisdiction to impose the condition; (3) there was no reasonable relationship between the condition and the land use regulatoiy purpose threatened by the granting of the variance; (4) the condition discriminates against renters and, therefore, is against the strong public policy favoring the development of housing opportunities for all residents and the promotion of housing choice and economic diversity; (5) the condition violates the public policy favoring free and *158unrestricted alienation of property; (6) the condition violates public policy in that it violates article first, § 1, of the Connecticut constitution; and (7) the condition violates public policy in that it constitutes a taking of property without just compensation in violation of the federal and state constitutions. On the basis of the foregoing claims, the plaintiffs argue that, although they failed to appeal the imposition of the variance within the statutory time period, they may attack the no rental condition in a collateral enforcement action.

The majority concludes that the no rental condition violates the public policy against unreasonable restraints on alienation, and, therefore, that the plaintiffs’ claim is excepted from the general bar on collateral attacks. I respectfully disagree. For the reasons that follow, I do not believe that this case falls within any exception to the bar on collateral attacks.

I

Regarding the plaintiffs’ first claim, I agree with the conclusion of the Appellate Court that, because the no rental condition was not personal to the plaintiffs, it was not invalid under Reto v. Zoning Board of Appeals, 235 Conn. 850, 857-58, 670 A.2d 1271 (1996). See Gangemi v. Zoning Board of Appeals, 54 Conn. App. 559, 567-68, 736 A.2d 167 (1999).

II

I next address the plaintiffs’ claim that the imposition of the no rental condition was outside the jurisdiction of the board, thereby permitting the plaintiffs to attack the condition collaterally pursuant to Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 616 A.2d 793 (1992).1

*159I first review the law governing the general scope of the board’s power. The powers delegated by the state to zoning boards of appeals are set forth in General Statutes § 8-6.* 2 This court previously has held that *160“[z]oning is an exercise of the police power. Zoning regulates the use of land irrespective of who may be the owner of such land at any given time and is defined as a general plan to control and direct the use and development of property in a municipality or a large part of it by dividing it into districts according to the present and potential use of the properties. State ex rel. Spiros v. Payne, 131 Conn. 647, 652, 41 A.2d 908 [1945] .... Karp v. Zoning Board, 156 Conn. 287, 297-98, 240 A.2d 845 (1968). As a creature of the state, the . . . [town whether acting itself or through its zoning board of appeals] can exercise only such powers as are expressly granted to it, or such powers as are necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation. Baker v. Norwalk, 152 Conn. 312, 314, 206 A.2d 428 [1965] . . . Bredice v. Norwalk, 152 Conn. 287, 292, 206 A.2d 433 [1964]; State ex rel. Sloane v. Reidy, 152 Conn. 419, 423, 209 A.2d 674 [1965]. In other words, in order to determine whether the [zoning action] in question was within the authority of the [board] . . . we do not search for a statutory prohibition against such an [action]; rather, we must search for statutory authority for the [action], Avonside, Inc. v. Zoning & Planning Commission, 153 Conn. 232, 236, 215 A.2d 409 (1965); [accord] Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 19, 523 A.2d 467 (1987).” (Internal quotation marks omitted.) Builders Service Corp. v. Planning & Zoning Commission, 208 Conn. 267, 274-75, 545 A.2d 530 (1988).

*161This court previously has concluded that “[a] zoning board of appeals may, without express authorization, attach reasonable conditions to the grant of a variance.” Burlington v. Jencik, 168 Conn. 506, 509, 362 A.2d 1338 (1975). The power to impose conditions is implied in the power to grant variances. See id. The purpose of a condition, however, must be to ensure that the variance is “in harmony with the general purpose and intent of the zoning ordinance.” Id.; see also General Statutes § 8-6 (a) (3).3

In Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 100-101, this court recognized the following principles: (1) the authority of a zoning board of appeals to impose conditions on a special permit is limited to the authority delegated to the town, and, therefore, on a direct appeal, this court would invalidate any condition that the agency had no authority to impose; and (2) certain actions by a zoning agency may be attacked after the time period for a direct appeal has lapsed, generally because there has been “defective statutorily required published notice to the public.” Id., 101. This court concluded, however, that “[n] either of these principles . . . requires the conclusion . . . that the recipient of a zoning permit that had been granted subject to a condition may accept both the benefits of the permit and the condition attached to it, by failing to challenge the condition by way of direct appeal . . . and then, years later, defend against the enforcement of the condition by attacking its validity ab initio.” (Citation omitted.) Id., 101-102.

“[W]e have uniformly held that failure to file a zoning appeal within the statutory time period deprives the trial court of jurisdiction over the appeal. Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989); Carpenter v. Planning & Zoning Commission, *162176 Conn. 581, 593, 409 A.2d 1029 (1979). We have also consistently held that when a party has a statutory right of appeal from the decision of an administrative agency, [it] may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test. Carpenters. Planning & Zoning Commission, supra, 598 .... Moreover, we have ordinarily recognized that the failure of a party to appeal from the action of a zoning authority renders that action final so that the correctness of that action is no longer subject to review by a court. Haynes v. Power Facility Evaluation Council, 177 Conn. 623, 629-30, 419 A.2d 342 (1979); see Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 418 A.2d 82 (1979). All of these rules rest in large part, at least in the zoning context, on the need for stability in land use planning and the need for justified reliance by all interested parties— the interested property owner, any interested neighbors and the town—on the decisions of the zoning authorities. It would be inconsistent with those needs to permit ... a challenge to a condition imposed on a zoning permit when the town seeks to enforce it [many] years later. See Spectrum of Connecticut, Inc. v. Planning & Zoning Commission, 13 Conn. App. 159, 163, 535 A.2d 382, cert. denied, 207 Conn. 804, 540 A.2d 373 (1988) (permitting collateral attack on special permit condition would make land use regulation system impractical and unworkable).” (Internal quotation marks omitted.) Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 102-103.

“[T]here are limits to the notion that subject matter jurisdictional defects may be raised at any time. . . . [T]he modem law of civil procedure suggests that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a full opportunity originally to contest the jurisdic*163tion of the adjudicatory tribunal. [F.] James & [G.] Hazard, Civil Procedure (2d Ed. 1977) § 13.16, [pp.] 695-97; Restatement (Second), Judgments [§] 15 (Tent. Draft No. 5 1978). Monroe v. Monroe, 177 Conn. 173, 178, 413 A.2d 819 [appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979)]. Under this rationale, at least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong policy reasons for giving him a second opportunity to do so. [F.] James & [G.] Hazard, [supra, § 13.16, p.] 695; Restatement (Second), Judgments, supra [§ 15]. . . . Vogel v. Vogel, 178 Conn. 358, 362-63, 422 A.2d 271 (1979); see also Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 560, 468 A.2d 1230 (1983); Daly v. Daly, 19 Conn. App. 65, 69-70, 561 A.2d 951 (1989); Morris v. Irwin, 4 Conn. App. 431, 433-34, 494 A.2d 626 (1985).” (Internal quotation marks omitted.) Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 103-104.

“[This court] recognize[s], however . . . that there may be exceptional cases in which a previously unchallenged condition was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it, or in which the continued maintenance of a previously unchallenged condition would violate some strong public policy. It may be that in such a case a collateral attack on such a condition should be permitted.” Id., 104-105.

In Upjohn Co., this court considered the validity of a condition to a special permit rather than a condition to a variance; see id., 97; the latter of which is at issue in this case. This court has recognized that the power to impose conditions on special permits, unlike the power to impose conditions on variances, “must be *164found in the regulations themselves . . . and . . . maynotbe altered.” (Internal quotation marks omitted.) Lurie v. Planning & Zoning Commission, 160 Conn. 295, 304, 278 A.2d 799 (1971). I would conclude, however, that there is nothing in Upjohn Co. to suggest that this court’s reasoning in that case is not applicable to variance conditions. If a condition to a variance does not operate to ensure that the variance is in harmony with the purpose and intent of legitimate zoning ordinances, it is not within the zoning power delegated to the board. See Burlington v. Jencik, supra, 168 Conn. 509; cf. Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 65, 574 A.2d 212 (1990) (variance condition that is not reasonable is not within power of zoning board of appeals to impose). Under Upjohn Co., if the lack of such power in the present case was obvious, or the imposition of the condition was “so far outside what could have been regarded as a valid exercise of zoning power”; Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 105; then I would hold that the plaintiffs may attack the no rental condition collaterally.

This court previously has not considered whether there are circumstances under which a variance condition prohibiting the rental of real property may advance a legitimate purpose or intent of the zoning ordinances and thus come within the purview of the zoning power delegated to the zoning boards of appeal. We have recognized, however, “ [t]he basic zoning principle that zoning regulations must directly affect land, not the owners of land . . . .” (Citations omitted.) Reid v. Zoning Board of Appeals, supra, 235 Conn. 857; see also Dinan v. Board of Zoning Appeals, 220 Conn. 61, 66-67 n.4, 595 A.2d 864 (1991) (“the identity of the user is irrelevant to zoning”); Builders Service Corp. v. Planning & Zoning Commission, supra, 208 Conn. 285 (“[z]oning is concerned with the use of property and not primarily with its ownership” [internal quotation marks omitted]). This *165principle derives from the more general principle that “zoning power may only be used to regulate the use, not the user of the land.” (Internal quotation marks omitted.) Reid v. Zoning Board of Appeals, supra, 857, quoting T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 88. These principles suggest that a regulation that limits occupancy of a property to owners of the property is not within the zoning power. This, in turn, suggests that a variance condition that operates to achieve the same end does not advance a legitimate zoning purpose.

The general trend, both in this state and in other jurisdictions, however, has been toward a less strict application of the principle that the zoning power must be used to regulate the use and not the user of the land. See Dinan v. Board of Zoning Appeals, supra, 220 Conn. 67 (considering validity of ordinance restricting “the term family to persons related by blood, marriage or adoption” and concluding that “[i]f there is a reasonable basis to support the separate treatment for zoning purposes of families of related individuals as compared to groups of unrelated individuals, the broad grant of authority conferred by [General Statutes] § 8-2 to adopt regulations designed ... to promote . . . the general welfare must be deemed to sanction a zoning regulation reflecting that distinction in the uses permitted in different zoning districts” [internal quotation marks omitted]); id., 66-67 n.4 (“the identity of the user is irrelevant to zoning, but user terminology may be employed to describe particular uses”); Taxpayers Assn. of Weymouth Township, Inc. v. Weymouth Township, 71 N.J. 249, 259, 275, 364 A.2d 1016 (1976), cert. denied sub nom. Feldman v. Weymouth Township, 430 U.S. 977, 97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977) (zoning ordinance limiting mobile home units to trailer parks and their use to families in which head of household is at least fifty-two years old is within zoning power as promoting *166general welfare); id., 277 (observing that “regulation of land use cannot be precisely dissociated from regulation of land users” [emphasis in original]); Bonner Properties, Inc. v. Franklin Township Planning Board, 185 N.J. Super. 553, 572, 449 A.2d 1350 (1982) (zoning ordinance prohibiting certain form of land ownership was within power delegated to municipality under enabling statute); id., 567 (principle that “the zoning power . . . cannot be employed to regulate ownership of land or the identity of its occupants” implicitly overruled); see also 5 A. Rathkopf & D. Rathkopf, The Law of Zoning and Planning (4th Ed. Ziegler 2000) § 56A.02 [1] [c], p. 56A-5 (“this ultra vires principle that zoning regulates the use of land and not the status or identity of the owner or person who occupies the land has not always been strictly applied”). These authorities suggest that regulations that restrict forms of ownership and that affect the occupants, rather than the particular use, of a property, may be valid if they are reasonably related to a legitimate zoning purpose. But see FGL & L Property Corp. v. Rye, 66 N.Y.2d 111, 114, 116, 485 N.E.2d 986, 495 N.Y.S.2d 321 (1985) (recognizing that “it is a ‘fundamental rule that zoning deals basically with land use and not with the person who owns or occupies it’ ” and holding that planning board does not have power to require certain form of ownership).

Although this court previously has not considered the issue, other jurisdictions have considered the application of the principle that the zoning power must be exercised to regulate the use, not the user, to restrictions on the rental of property. A number of courts have upheld such restrictions. See, e.g., Ewing v. Carmel-by-the-Sea, 234 Cal. App. 3d 1579, 1584, 1598, 286 Cal. Rptr. 382 (1991), cert. denied, 504 U.S 914, 112 S. Ct. 1950, 118 L. Ed. 2d 554 (1992) (upholding constitutionality of ordinance prohibiting -rental of residential property for fewer than thirty days as protecting residential *167character of neighborhood and having “substantial relation to the public health, safety, morals or general welfare” [internal quotation marks omitted]);4 Kasper v. Brookhaven, 142 App. Div. 2d 213, 215-19, 535 N.Y.S.2d 621 (1988) (upholding ordinance limiting availability of permits for accessory rental apartments to those homeowners who occupy home in which accessory rental apartment is to be maintained); id., 222 (recognizing that “many zoning laws extend beyond the mere regulation of property to affect the owners and users thereof’).

Several courts, however, have invalidated zoning actions restricting the rental of property. See Kirsch Holding Co. v. Manasquan, 59 N.J. 241, 251-52, 281 A.2d 513 (1971) (holding that zoning ordinances prohibiting rental to groups of individuals not qualifying as families under statutory definition violates substantive due process);5 United Property Owners Assn. of Belmar v. *168Belmar, 185 N.J. Super. 163, 167, 170, 171, 447 A.2d 933, cert. denied, 91 N.J. 568, 453 A.2d 880 (1982) (invalidating portion of ordinance prohibiting temporary or seasonal rentals except when occupant intends to reside permanently in dwelling as “an extreme limitation on rights of ownership of private property” and arbitrary); Kulak v. Zoning Hearing Board, 128 Pa. Commw. 457, 462, 563 A.2d 978 (1989) (concluding that condition to special exception to zoning regulations requiring owner of apartment building to reside in one apartment did not serve zoning purpose because “[t]he . . . identity of an apartment occupant obviously has no relationship to public health, safety or general welfare,” but holding that, because original owner had not appealed imposition of condition, he nevertheless was bound by it); see also 5 A. Rathkopf & D. Rathkopf, supra, § 56A.02, p. 56A-8 (“[t]he principle that zoning enabling acts authorize local regulation of land use and not regulation of the identity or status of owners or persons who occupy the land would likely be held to apply to invalidate zoning provisions distinguishing between owner-occupied and rental housing” [internal quotation marks omitted]).

In light of the foregoing legal authorities, I would conclude that this court need not decide whether the no rental condition was within the board’s power because, even if it is assumed that it was not, the board’s lack *169of subject matter jurisdiction was not obvious, and the imposition of the condition was not so far outside the authority delegated to the board by the state that any reliance on that condition, and on the plaintiffs’ failure to appeal, was unjustified. As I noted previously in this opinion, there are no Connecticut appellate cases considering whether a limitation or prohibition on renting is within the zoning power, and the case law of other jurisdictions is split on the issue. Accordingly, for reasons that I will discuss more fully in part III of this opinion, the board reasonably could have believed that the no rental condition advanced the legitimate zoning puipose of enhancing the residential character of the neighborhood and its year-round stability, a purpose that was threatened by the granting of the variance.

The majority distinguishes the no rental condition from the no rental regulations upheld in other jurisdictions on the grounds that the no rental condition is not district-wide and is not tailored to a specific land use policy. I would note, however, that, although the owner occupancy requirement in Kasper v. Brookhaven, supra, 142 App. Div. 2d 213, was a district-wide ordinance in the sense that it applied to anyone in the district who wished to maintain an accessory apartment, it operated, in effect, as a condition to a special permit. See id., 215-16 (ordinance allowed maintenance of accessory apartment upon obtaining special permit). Furthermore, the court in Kasper found that the owner occupancy requirement had “the permissible legislative purpose of providing occupying homeowners of modest means with additional income for use in retaining ownership of their residences”; id., 223; a purpose less related to land use than the purposes advanced by the board in the present case. Accordingly, without necessarily agreeing with the court in Kasper, I would conclude that case does support the board’s claim that the *170imposition of the no rental condition was within the powers delegated to it by the state.

I would conclude that the board reasonably could have believed that the imposition of the no rental condition was within its power. Although, as the plaintiffs note, such a reasonable belief would not have conferred subject matter jurisdiction on the board, it does indicate that any lack of jurisdiction was not obvious and that reliance on the condition by interested parties was justified. I further note that there is no claim in this case that the plaintiffs did not have a prior opportunity to challenge the condition at the time the variance was granted. Finally, I note that the plaintiffs themselves, in their application for a variance, represented that: “Owners intend to use the property for family use only on a [year-round] basis.” Interested parties reasonably could have inferred from the plaintiffs’ application that the plaintiffs intended to use the property themselves, and not for rental purposes. I recognize, as the plaintiffs note, that their representation that the property would be for family use only did not confer subject matter jurisdiction on the board to limit the use of the property to the plaintiffs. Nevertheless, because the inference that the plaintiffs did not intend to rent the property was reasonable, I would conclude that reliance on the condition was not unjustified.

Accordingly, I would conclude that the no rental condition is not subject to collateral attack on the ground that the lack of jurisdiction to impose it was obvious, or that it was “so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it . . . .” Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 105.

Ill

Relying on Burlington v. Jencik, supra, 168 Conn. 506, the plaintiffs also argue that, even if the board had *171the power to impose a no rental condition, it did not have the authority to do so in this case. Specifically, the plaintiffs claim that the condition had no relationship to the granting of the variance and that, accordingly, they may collaterally attack it. Cf. Upjohn Co. v. Board of Zoning Appeals, supra, 224 Conn. 105. Because I would not decide, as a general matter, that the board had no jurisdiction to impose the no rental condition, I must address this argument.

In Burlington v. Jencik, supra, 168 Conn. 507, the defendant property owners sought a variance from the building setback lines in order to build a garage. The zoning board of appeals granted the variance on the condition that the garage would “be used exclusively for the private garaging of automobiles and not for commercial repair work of any type.” (Internal quotation marks omitted.) Id. Commercial uses generally were allowed in the zone. See id., 510. The defendants did not appeal from that decision. Id., 508. The property owners built the garage and used it for the storage and sale of merchandise. Id. The town brought an action seeking to enjoin the property owners from using the garage for commercial purposes and prevailed. Id. The property owners appealed to this court. Id.

This court noted that the function of a condition to a variance is to “[alleviate] the harm which might otherwise result” from the granting of the variance without the condition. Id., 509. This court concluded that the condition banning commercial use was in harmony with the purpose of the variance from the setback requirements, which was to relieve intolerable parking conditions in the neighborhood, and upheld it as a valid use of the zoning power. Id., 510-11.

I would not conclude in the present case that the no rental condition was so obviously unrelated to the variance from the setback requirements that the plain*172tiffs should be permitted to attack the condition collaterally. As this court implicitly recognized in Jencik, a condition to a variance need not be directly related to the alleviation of a threat to the purposes of the specific regulation from which the applicant received the variance. The ban on commercial uses in Jencik did not directly further the zoning goals underlying setback requirements. See Rogers v. Zoning Board of Appeals, 154 Conn. 484, 487, 227 A.2d 91 (1967) (“[t]he obvious purpose of yard requirements and setback lines is to prevent fibre hazards, provide for proper drainage and make suitable provision for light and air”). Rather, the imposition of a condition on a variance is a valid exercise of the board’s power when the condition is reasonably related to the alleviation of harms to the general purpose and intent of the zoning ordinances potentially caused by granting the variance. Burlington v. Jencik, supra, 168 Conn. 509.

In the present case, the board reasonably could have believed that the no rental condition alleviated the harm caused by permitting the intensification of the plaintiffs’ nonconforming use of their property. In granting the variance—which had the effect of permitting year-round use of the property—only on the condition that the property would not be rented, the board reasonably could have believed that, even though its action could result in an increase in the population density of the neighborhood during winter months, which the board saw as a harm to the zoning scheme, the condition mitigated that harm by advancing the neighborhood’s character as a place for family residences and its year-round stability.6 On the other hand, had the board *173granted the variance without the owner occupancy requirement, its action potentially would have contributed to the population density of the neighborhood during the winter months and its instability year round, without any countervailing benefits to the neighborhood. Thus, contrary to the plaintiffs’ argument, the board was not necessarily discriminating arbitrarily against families that rent a property in favor of families that own and occupy a property, but, rather, was attempting, at least arguably, to promote continuous use by families on a year-round basis. I would not conclude that this was an obviously illegitimate zoning purpose.7

The majority points out that the board stated at oral argument that the zoning regulations were changed *174after the variance in the present case was granted to eliminate restrictions on year-round use. I first note that the board represented in its brief to this court that, when the variance was granted, § 2.5.1 of the Fairfield zoning regulations governed changes from seasonal to year-round use. Section 2.5.1, however, governs extensions of nonconforming uses in general and does not address the issue of year-round use. I would conclude, therefore, that the record is insufficient for this court to determine whether there was any change in the regulations concerning year-round use and, if so, what that change entailed.

Even if it is assumed, however, that there was such a change, that would not change my analysis. Even if the change in regulations gave the plaintiffs the abstract right to occupy their house year round, without the existence of the setback variance, which enabled the plaintiffs to enlarg