Gangemi v. Zon'g Bd. of App. Town of Fairfield

• Citation: 736 A.2d 167
• Court: Appellate Court of Connecticut
• Decision Date: 24 August 1999
• Parties: (Conn.App. 1999) SEBASTIAN GANGEMI ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF FAIRFIELD (AC 17688)

736 A.2d 167 (Conn.App. 1999)

SEBASTIAN GANGEMI ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF FAIRFIELD

(AC 17688)

Connecticut Court of Appeals

Argued February 16, 1999

August 24, 1999

John E. Curran, for the appellants (plaintiffs).

Richard H. Saxl, town attorney, for the appellee (named defendant).

John F. Fallon, for the appellees (intervening defendants).

Landau, Schaller and Daly, Js.

Landau, J.

OPINION

The plaintiffs, Sebastian Gangemi and Rebecca Gangemi, appeal from the judgment of the Superior Court dismissing their appeal from the decision of the zoning board of appeals of the town of Fairfield (board)¹ on the ground that the court lacked subject matter jurisdiction. On appeal, the plaintiffs claim that the trial court improperly concluded that it did not have subject matter jurisdiction. Specifically, the plaintiffs argue that the trial court does have subject matter jurisdiction in that the "no rental" condition attached to the variance was personal to the plaintiffs and, therefore, void ab initio, and that the condition's validity could be collaterally attacked at any time after the statutory appeal period had passed.² In the alternative, the plaintiffs claim that even if the no rental condition was not personal, it is subject to collateral attack under Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 616 A.2d 793 (1992). We affirm the judgment of the Superior Court.³

A review of the relevant facts, which are undisputed by the parties, facilitates an understanding of the issues in this appeal. As set forth in the Superior Court's memorandum of decision, the plaintiffs are the owners of property located at 863 Fairfield Beach Road in Fairfield. On March 13, 1986, the plaintiffs filed an application with the board requesting a variance in the setback requirements from the Fairfield zoning regulations. The variance that the plaintiffs sought would have allowed them to enlarge their nonconforming home and also would have allowed them to convert the home from summer use to year round use. The plaintiffs asserted that to complete the conversion of the home, they needed to enclose the existing porch, enlarge the bathroom and construct a furnace room. In their application, the plaintiffs indicated that they "[intended] to use the property for family use only on a year round basis."

The board conducted a public hearing on the plaintiffs' application. On May 1, 1986, the board granted the plaintiffs' application subject to the following conditions: (1) the plaintiffs would provide two off-street parking spaces and (2) the use of the home would be limited to family use and would not be used for rental purposes.⁴ The plaintiffs did not appeal or otherwise challenge the validity or imposition of either condition. Thereafter, in 1990, the plaintiffs moved out of the home and started renting the property to various tenants. On May 20, 1996, Peter Marsala, Fairfield's zoning enforcement officer, issued to the plaintiffs an order to comply that indicated that the plaintiffs were violating the board's conditional approval by renting the home and ordered the plaintiffs to have the tenants vacate the subject property.

Thereafter, on June 3, 1996, the plaintiffs filed an application with the board requesting that the board invalidate the no rental condition and, thereby, reverse the order to comply. On August 1, 1996, the board conducted a public hearing and denied the plaintiffs' application.⁵ The plaintiffs appealed from the board's decision to the Superior Court on August 21, 1996, pursuant to General Statutes § 8- 8 (b). The Superior Court concluded that the plaintiffs' failure to file an appeal challenging the validity of the no rental condition within fifteen days from the date when notice of the board's decision was published in 1986 deprived the court of subject matter jurisdiction to entertain the appeal. From that judgment, the present appeal ensued.

I.

The plaintiffs initially claim that the no rental condition is personal to the plaintiffs and, therefore, it is void ab initio and subject to collateral attack pursuant to the holding in Reid v. Zoning Board of Appeals, 235 Conn. 850, 670 A.2d 1271 (1996). As such, the plaintiffs assert that the trial court had the requisite subject matter jurisdiction over this action, even though the appeal was filed more than fifteen days from the date that notice was published. We disagree.

"It is well established that an appellate court will not retry the facts. Our review is to determine whether the judgment of the trial court was clearly erroneous or contrary to the law." Northeast Parking, Inc. v. Planning & Zoning Commission, 47 Conn. App. 284, 290-91, 703 A.2d 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998). In this case, the Superior Court determined that the no rental condition attached to the variance was not personal, but, instead, ran with the land. We, therefore, are called upon to review the legal Conclusions of the Superior Court. "When... the trial court draws Conclusions of law, [the scope of our appellate] review is plenary and we must decide whether its Conclusions are legally and logically correct and find support in the facts that appear in the record...." (Internal quotation marks omitted.) ALCA Construction Co. v. Waterbury Housing Authority, 49 Conn. App. 78, 86, 713 A.2d 886 (1998).

"Variances cannot be personal in nature, and may be based only upon property conditions. Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972); see T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 124. Thus, the identity of a particular user of the land is `irrelevant to zoning.' Dinan v. Board of Zoning Appeals, 220 Conn. 61, 66-67 n.4, 595 A.2d 864 (1991); see T. Tondro, supra, p. 88 (`zoning power may only be used to regulate the "use, not the user" of the land'). In fact, we have stated that `[p]ersonal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance.' Garibaldi v. Zoning Board of Appeals, supra, 239-40. `[T]he basic zoning principle that zoning regulations must directly affect land, not the owners of land'; T. Tondro, supra, p. 137; limits the ability of zoning boards `to act for personal rather than principled reasons,' particularly in the context of variances." Reid v. Zoning Board of Appeals, supra, 235 Conn. 857-58. In determining the use of property permitted by a variance, our Supreme Court "has considered not only the language of the variance certificate, but also the specific use of the property proposed by the applicant, as set forth in the variance application." L & G Associates, Inc. v. Zoning Board of Appeals, 40 Conn. App. 784, 787, 673 A.2d 1146 (1996), citing Raymond v. Zoning Board of Appeals, 164 Conn. 85, 87-88, 318 A.2d 119 (1972).

In Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 96, our Supreme Court noted that "failure to file a zoning appeal within the statutory time period deprives the trial court of jurisdiction over the appeal.... [F]ailure... 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." (Citations omitted.) Id., 102. The Upjohn court recognized that there are certain actions of zoning authorities that could be attacked in an independent action after the appeal period has expired. Id., 101. The court also noted, however, that "the recipient of a zoning permit that had been granted subject to a condition may [not] 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." Id., 101-102. Leading the court to this Conclusion was the consideration that, in the zoning context, there is a "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 more than three years later." Id., 102.

Our Supreme Court later recognized an exception to the rule in Upjohn and held that a party could collaterally attack a personal condition attached to a variance because personal conditions are void ab initio. See Reid v. Zoning Board of Appeals, supra, 235 Conn. 858. Furthermore, the Reid court determined that Public Acts 1993, No. 93- 385, as it amended General Statutes (Rev. to 1993) § 8-6 (b),⁶ "applied retroactively and that any prospective challenges to variances subject to otherwise invalid, integral conditions must result in the severance of the condition and the survival of the otherwise valid variance." Reid v. Zoning Board of Appeals, supra, 235 Conn. 864. The court noted that "the legislature... intended to sever invalid personal conditions from otherwise valid variances whether such condition was in existence at the time of the act's passage or created later." Id., 863.

Reid, however, is distinguishable from the present matter. In Reid, Florence Kastner, Reid's predecessor in title, had applied to the board in 1975 for a variance to allow year round occupancy of her home "`for her life use of the property only.'" Id., 852. The board granted the variance, which permitted year round occupancy of the property, for Kastner's "`life use only.'" Id. Kastner did not appeal from the granting of the variance and continued to occupy the property until she sold it to Reid in 1990. Id. In 1992, the zoning enforcement officer ordered Reid to cease occupying the premises as a year round dwelling. Id. Reid appealed to the board, which found the cease and desist order to...