255 Conn. 143 | Conn. | 2001
Lead Opinion
Opinion
The dispositive issue in this certified appeal is whether the continued maintenance of a certain “no rental” condition imposed on a zoning variance granted to the plaintiffs in 1986 by the defendant, the zoning board of appeals of the town of Fairfield (board), which the plaintiffs did not challenge by direct appeal at that time, violates the public policy against restraints against alienation of property. The plaintiffs, Sebastian Gangemi and Rebecca J. Gangemi, appeal, pursuant to our grant of certification, from the judgment of the Appellate Court affirming the judgment of the trial court. The trial court dismissed the plaintiffs’ appeal from the defendant’s denial of their application to invalidate the no rental condition for lack of subject matter jurisdiction.
In 1986, the plaintiffs secured a zoning variance from the board, one condition of which was “[o]wner occupancy only.”
The procedural history and certain of the undisputed facts of the case are set forth in the opinion of the Appellate Court as follows. “[T]he 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 regula
“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.
“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.
In addition, certain other sets of facts are undisputed. The first involves the extent and context of the variance at issue as it is currently maintained. The variance permitted the plaintiffs to reduce the required side setback line from 7 feet to 3.2 feet, thus giving them an additional 3.8 feet of footprint and adding 59.6 square feet to then-house. In this connection, we note that the variance also gave the plaintiffs permission to convert the house from a seasonal cottage to a year-round dwelling by
Second, the property in question is located within the Fairfield beach district, which is subject to § 11.1.1 of the Fairfield zoning regulations. Section 11.1.1 of the Fairfield zoning regulations imposes the following limitations: “A single detached dwelling for one family . . . [and] no dwelling or dwelling unit in the Beach District may be occupied by more than four (4) unrelated persons.” Thus, there is nothing in the zoning regulations that prohibits either the plaintiffs or any other property owners in the beach district from renting their houses to others. Moreover, there is nothing in our zoning statutes that, at least specifically, permits such a flat prohibition.
The third set of facts involves the absence from the applicable zoning restrictions of any provision limiting occupancy to “families.”
With this undisputed factual background in mind, we turn to the legal standard that controls the present case. In Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 102, 616 A.2d 793 (1992), we held that the plaintiff, “having secured [certain zoning] permits in 1983 subject to condition seven and not having challenged the condition by appeal at that time, was precluded from doing so in the 1986 enforcement proceedings at issue in this case.” Two considerations, which are relevant to the present case,
First, we reasoned that the rules requiring a contemporaneous appeal from the imposition of a zoning condition, and thus depriving a trial court of subject matter jurisdiction over a subsequent challenge, rest “on the need for stability in land use planning and the need for justified reliance by all interested parties—the inter
Despite this conclusion and reasoning, however, we “recognize[d] . . . 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.”
We begin by emphasizing that, under this prong of the Upjohn Co. formulation, we focus, not on the state of affairs that existed when the condition at issue originally was imposed, but on the current state of affairs in which the condition is being enforced. Thus, in the present case, we do not focus, as we do with regard to the first prong of Upjohn Co., on whether the condition
It is undisputable that “[i]t is the policy of the law not to uphold restrictions upon the free and unrestricted alienation of property unless they serve a legal and useful purpose.” Peiter v. Degenring, 136 Conn. 331, 336, 71 A.2d 87 (1949). It is also undisputable that this policy is strong and deeply rooted. J. Dukeminier & J. Krier, Property (3d Ed. 1993) p. 223 (“[t]he rule against direct restraints on alienation is an old one, going back to the fifteenth century or perhaps even earlier”). Moreover, it is undisputable that the right of property owners to rent their real estate is one of the bundle of rights that, taken together, constitute the essence of ownership of property. See, e.g., id., p. 86 (“[property] consists of a number of disparate rights, a ‘bundle’ of them: the right to possess, the right to use, the right to exclude, the right to transfer”). The question that the present case poses, therefore, is whether, under the facts of this case, the continued maintenance of the no rental condition serves “a legal and useful purpose.” Peiter v. Degenring, supra, 336; see also T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 89 n.185 (“[t]he real question is whether a valid zoning objective is being served”). We conclude that it does not.
Owners of a single-family residence can do one of three economically productive things
Furthermore, the maintenance of the no rental condition in the present case not only strips the plaintiffs of one of those three options, it also significantly reduces the value of the third because when they do put the house on the market it will necessarily bring significantly less than the fair market value that it would have commanded without the condition. It takes little imagination to predict that the only pool of potential buyers for a house with a no rental condition perma
Finally, insofar as this record discloses, the condition limiting the plaintiffs’ economic use of the house to occupancy, and prohibiting their economic use of it by renting it, is a limitation that does not adhere to the rest of the property owners in the beach district. Thus, the most obvious consequence of the continued maintenance of the no rental condition on the plaintiffs’ property is to give those other property owners a grossly unfair advantage over the plaintiffs in the marketplace. A house, particularly a house located in a beach district, that can never be rented obviously would be significantly less desirable to a potential purchaser than the rest of the houses in the beach district, which do not have such a drastic limitation on their economic use.
Neither the state zoning statutes nor the local zoning regulations place any such limitation on those other property owners. Thus, whatever adverse consequences to other properties may be imagined to flow from occupancy of the houses in the beach district by
Finally, the continued maintenance of this no rental condition violates another strong and deeply rooted policy, namely, the policy against economic waste. Our law has long recognized such a policy. See Levesque v. D & M Builders, Inc., 170 Conn. 177, 181-82, 365 A.2d 1216 (1976). By artificially and significantly devaluing the plaintiffs’ property, as compared to the value of the surrounding parcels, the continued maintenance of the condition in question removes from the marketplace, and thereby from the economy, that significant differential in value. We can see no legal or useful purpose in doing so. The consequence of such conduct is economic waste.
We acknowledge that permitting the plaintiffs to challenge the condition now means that they will receive what could be regarded as a windfall, because they secured a variance in 1986 coupled with the no rental condition, and it is possible that, had the condition not been imposed, either the zoning authority might not have granted the variance
First, whenever the law permits a previously imposed condition to be challenged collaterally—as the dictum in Upjohn Co. suggested and as we now hold—some similar windfall is afforded the property owner. Indeed, subsequent to our decision in Upjohn Co. we implicitly permitted a condition that was personal to the property owner to be challenged collaterally. See Reid v. Zoning Board, of Appeals, 235 Conn. 850, 670 A.2d 1271 (1996). Thus, the presence alone of such a windfall cannot be enough to preclude such a collateral attack because it is inherent in the Upjohn Co. formulation. Second, on the facts of the present case the windfall amounts to: (1) an additional 3.8 feet of width and 59.6 square feet to the plaintiffs’ house; and (2) the full use of the variance for a finite period of time, namely, from 1986 to whenever the zoning regulations were amended. Against this, however, must be balanced the current effects of the condition. Those effects are: (1) the drastic and direct restriction on the alienability of the plaintiffs’ property; (2) its grossly unfair consequence, when compared with the freedom of alienability of the other property owners in the beach district; and (3) the fact that the restriction is, unlike the second part of the windfall, temporally unlimited—in fact, permanent. This balance leads us to conclude that the no rental condition is so restrictive of the plaintiffs’ ability to alienate their property that it outweighs the public policy considerations underlying the bar on collateral
It may be that where such a condition is imposed by virtue of a statute or regulation that is of district-wide
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for further proceedings according to law.
In this opinion NORCOTT, PALMER and VERTEFEU-ILLE, Js., concurred.
Judith Kramer and Barry Kramer, the owners of the property abutting the property owned by the plaintiffs, intervened as defendants in the trial court, and have participated as such in this appeal. Hereafter, we refer to the board and Judith Kramer and Barry Kramer collectively as the defendants.
The plaintiffs also claim that: (1) the condition was void as being personal in nature; (2) the 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; and (3) the condition constituted an unconstitutional taking of the plaintiffs’ property without just compensation. In view of our conclusion that the continued maintenance of the condition violates public policy, we need not, and do not, consider any of these other claims.
The parties and the Appellate Court have characterized this as a “no rental” condition, prohibiting the plaintiffs from renting the property in question. For purposes of consistency, we adhere to this characterization.
We granted the plaintiffs’ petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly conclude that the trial court lacked subject matter jurisdiction over the plaintiffs’ appeal from (he decision of the zoning board of appeals’ refusal to invalidate the ‘no rental’ condition on the 1986 zoning variance?” Gangemi v. Zoning Board of Appeals, 251 Conn. 911, 739 A.2d 1248 (1999).
It is undisputed that the plaintiffs’ lot consists of 3979 square feet, although the zoning regulations applicable to the Fairfield beach district require 9375 square feet. The record does not disclose whether other lots in the beach district are similarly nonconforming. We note, however, that in their original application for a variance the plaintiffs asserted that “[a]n examination of the Assessor’s map along the entire length [of Beach Road, on which the plaintiffs’ property fronts] would reveal that the average lot is only 30-50’ in width and is nonconforming according to present zoning regulations.”
“Property located within the beach district in Fairfield is subject to § 11.1.1 of the Fairfield zoning regulations, which provides in relevant part: ‘A single detached dwelling for one family . . . [and] no dwelling or dwelling unit in the Beach District may be occupied by more than four (4) unrelated persons.’ The plaintiffs’ property is located within the beach district.” Gangemi v. Zoning Board of Appeals, supra, 54 Conn. App. 562 n.4.
“The board, in its denial of the application, stated the following reasons: ‘The Board felt that the [board] in 1986 did not attach the condition to the variance as it was offered by the applicant on the [applicant’s] application for a variance and the application was basically approved as submitted. It would be absurd to now allow the applicant to come forward and simply say we did not mean what we said when we originally applied for the variance or that we have now changed our mind. This Board further finds that because of the proximity of the houses in the beach section it does create a uniqueness and because of its uniqueness this condition of family use only can be defended as it does promote the public health of the neighborhood, it promotes the general welfare of the neighborhood and it does in fact conserve the value of the buildings located in the neighborhood.’ ” Gangemi v. Zoning Board of Appeals, supra, 54 Conn. App. 562-63 n.5.
The record does not reflect, however, precisely when that amendment to the zoning regulations took effect.
The parties assume that the zoning restriction to “[a] single detached dwelling for one family” refers, not to the persons occupying the house, but instead to the type of house, namely, a single-family type dwelling. Indeed, this is the only plausible interpretation, given the limitation in the next sentence of the zoning regulation to occupancy by not “more than four (4) unrelated persons.” See Fairfield Zoning Regs., § 11.1.
A third consideration was specific to the facts of Upjohn Co.; Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 103; and is inapplicable to this case.
In this connection, we note that this statement was not a holding of Upjohn Co., but was dictum. This is apparent from the very next two sentences in the decision: “It may be that in such a case a collateral attack on such a condition should be permitted. We leave that issue to a case that, unlike this case, properly presents it.” Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 105. Nonetheless, we now conclude that the present case properly presents the issue, and we adopt the exception that we suggested in Upjohn Co. and apply it to the facts of this case.
The dissent’s characterization of the other sticks in an owner’s bundle of rights, such as the right to exclude, to occupy, to improve, and the like; see footnote 10 of the dissent; do not undermine our tripartite characterization. All of those individual sticks are, we acknowledge, legal incidents of ownership. From a practical standpoint, however, an owner’s economic choices boil down to occupying, renting or selling.
Of course, such owners also have the economically unproductive option of leaving the residence unoccupied. The law should not, however, encourage economic waste. See the subsequent discussion.
In the present case, the plaintiffs alleged in their complaint that “[c]ommeneing in the Fall of 1989, following the birth of a second child, the plaintiffs found it impractical to utilize the premises for their growing family. They thereafter moved out and allowed a family friend to reside on the premises for approximately one year. Following said year they rented to a series of professional and business people on a year-to-year basis.” The trial court had no opportunity to consider this allegation because it dismissed the appeal on subject matter jurisdictional grounds.
Indeed, the change in the zoning regulations to permit year-round rental of properties in the beach district is consistent with the public policy favoring the free alienation of property.
At oral argument before this court, the defendants informed us that there may be other houses in the beach district that had a similar condition placed on them when variances were granted. The record, however, does not disclose this. Furthermore, the defendants do not represent that such a condition encumbers most or all of the houses in the beach district. Finally, even if there are other such houses, the likely conclusion to be drawn would be that those conditions are invalid as well.
In this regard, however, we note that, in the present zoning proceedings, the board stated: “ ‘The [current] Board felt that the [board] in 1986 did not attach the condition to the variance as it was offered by the applicant on the [applicant’s] application for a variance ....’” Gangemi v. Zoning Board of Appeals, supra, 54 Conn. App. 562 n.5.
To the extent that the dissent relies on Auburn v. McEvoy, 131 N.H. 383, 553 A.2d 317 (1988), we disagree. In our view, a condition that was an “ ‘out-and-out plan of extortion’ id., 384; and also violated the state constitution; see part IV B of the dissent; would be sufficiently egregious to outweigh the policy against collateral attacks.
Dissenting Opinion
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
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).
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,
“[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
“[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
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
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
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
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);
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
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
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
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
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.
The majority points out that the board stated at oral argument that the zoning regulations were changed
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 enlarge a bathroom in order to install a shower, and to install a furnace room, they would not have been able to do so. The essential point is that, regardless of what the regulations allowed for conforming properties, the variance allowed an intensification of the plaintiffs’ nonconforming use, and, therefore, the board had the power to impose conditions to alleviate potential harms caused by that intensification. I would conclude that the board reasonably could have concluded that the no rental condition did so.
Furthermore, it is important to emphasize that the board did not single out the plaintiffs’ property for special or discriminatory regulation vis-a-vis other neighboring properties or in general, but imposed the no rental condition because the plaintiffs themselves applied to the board for a variance, i.e., special and discriminatory favorable treatment. In my view, under the circumstances of this case, in which the plaintiffs themselves volunteered in their application that, if the board were to grant the variance, they would use the
Accordingly, without deciding whether the no rental condition would be found on a direct appeal to be related to the alleviation of the harm caused by granting the variance or, if not, whether a less restrictive limitation on renting would be permissible, I would conclude that the board reasonably could have believed that the condition advanced the purpose and intent of the zoning scheme, and, therefore, that the absence of any relationship between the condition and the variance was not obvious. Therefore, I would conclude that the no rental condition in the present case does not fall within the narrow exception to the bar on collateral attacks set forth in Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 105.
IV
I now address the plaintiffs’ claim that the no rental condition falls within the exception to the bar on collateral attacks for zoning actions that violate a strong public policy.
A
The plaintiffs first argue that the prohibition on renting is discriminatory against renters and, therefore, in violation of § 8-2 (a),
B
The plaintiffs also argue that the no rental condition restricts their ability to grant a periodic tenancy in their property and, therefore, violates the public policy against “restrictions upon the free and unrestricted alienation of property unless they serve a legal and useful purpose.” Peiter v. Degenring, 136 Conn. 331, 336, 71 A.2d 87 (1949).
I recognize that, to some extent, the no rental condition restricts the plaintiffs’ ability to alienate their property. This court implicitly recognized, however, in Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 96, that there occasionally will be restrictions, including otherwise improper restrictions, on property rights, that, because of the important public policy favoring reliability and finality of zoning actions, are not subject to collateral attack, even though they probably would be invalidated in a direct appeal. See id., 104-105 & n.6.1 would conclude that the no rental condition
The majority states that, in this case, this court should not “focus ... on whether the condition was so far outside the normal limits of zoning authority that there could not have been any justified reliance on the challenged condition. . . . Instead, [this court should] focus on the continued maintenance of the condition, and whether, irrespective of the fact that the condition was previously unchallenged, it nonetheless currently violate[s] some strong public policy.” (Citation omitted; internal quotation marks omitted.) To the extent that the majority suggests that the considerations of reliance, fairness and finality underlying the policy against permitting collateral attacks of zoning decisions; see Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 104 n.6; are not at issue when a decision implicates public policy rather than the limits of zoning authority, I disagree. Nothing in Upjohn Co. supports such a distinction. Nor does the case law of other jurisdictions. As I discuss later in this opinion, one court has held that, even when a condition is of a type that, several years after having been imposed, is found to be “ ‘an out-and-out plan of extortion’ ” and in violation of the state constitution, the policy favoring finality of zoning decisions operates to bar the property owners from challenging the condition after the time limitation on appeals has expired. Auburn v. McEvoy, 131 N.H. 383, 384-85, 553 A.2d 317 (1988) (Souter, J.).
In the present case, the public policy at issue is “the policy of the law not to uphold restrictions upon the free and unrestricted alienation of property unless they serve a legal and useful purpose.” (Emphasis added.) Peiter v. Degenring, supra, 136 Conn. 336. As I previously noted, I would conclude that the board reasonably could have believed that the no rental condition did serve a legal and useful purpose. Accordingly, I would conclude that the board reasonably could have believed that the condition did not violate the public policy against restraints on alienation, and, therefore, reliance on the condition was not unjustified under the public policy prong of Upjohn Co. Therefore, I would conclude that the plaintiffs cannot prevail on this claim.
C
The plaintiffs also claim that the condition violates the constitution of Connecticut, article first, § 1, which
D
Finally, the plaintiffs claim that the no rental condition was an unconstitutional taking under the fifth and fourteenth amendments to the United States constitution, and article first, § 11, of the constitution of Connecticut.
I first consider whether an unconstitutional condition automatically should come within the public policy exception to the general bar on collateral attacks. In Upjohn Co., this court implicitly recognized that not every zoning action that restricts property rights, but is not reasonably related to advancing a legitimate zoning purpose and is therefore ultra vires, will be excepted from the general bar on collateral attacks. I see no reason why a different rule should apply to a zoning action that has unconstitutionally infringed upon property rights. Therefore, I would conclude that an unconstitutional zoning action should not be excepted automatically from the bar on collateral attacks.
This conclusion is bolstered by the ruling of the Supreme Court of New Hampshire in Auburn v. McEvoy, supra, 131 N.H. 383. In that case, the defendant property owners had sought approval for the subdivision of their property. Id. The town’s subdivision regulations conditioned approval of a subdivision application
On appeal, the Supreme Court of New Hampshire recognized that the purpose of the statutory time limitation for bringing appeals from zoning decisions was to “endue such [decisions] with finality, at least insofar as the [decision] applies a town’s land use regulations in the particular instance”; id.; and noted that a broad rule exempting constitutional claims from the time limitation “would be justifiable only if the appeal period . . . imposed an unreasonable restriction on the assertion of constitutional property rights, whereas the [property owners] have proffered no reason to suppose that this is so.” Id., 388. Accordingly, the court held that the property owners were barred from bringing the claim. Id.
I am persuaded by the reasoning of the court in McEvoy. Nevertheless, our suggestion in Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 104-105,
Accordingly, I would consider whether the no rental condition is in this category of unconstitutional zoning actions that is subject to collateral attack. The plaintiffs, relying on Dolan v. Tigard, 512 U.S. 374, 377, 391, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994) (considering constitutionality of condition to approval of building permit requiring that landowner dedicate portion of land to public use and holding that there must be “ ‘rough proportionality’ ” between dedication and nature and impact of proposed development), and Nollan v. California Coastal Commission, 483 U.S. 825, 827, 837, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987) (considering constitutionality of condition to approval of building permit requiring that landowner grant public easement across property and holding that unless condition serves same governmental purpose as original building restriction, condition is “ ‘an out-and-out plan of extortion’ ” and thus unconstitutional), argue that the no rental condition does not meet the constitutional requirement that a condition imposed by a zoning agency be related to the discretionary benefit that the
The board argues, however, that, in the present case, the no rental condition was not a per se unconstitutional taking and, therefore, not subject to analysis under Dolan and Nollan. Although I recognize, as is discussed later in this opinion, that a zoning action that is ultra vires may be an unconstitutional taking per se, I would agree with the board. Analyzing the condition from the perspective of the board’s reasonable belief that the imposition of the condition was within its authority, the condition did not constitute a regulatory taking and was not so invasive of the plaintiffs’ constitutional property rights that there could have been no justified reliance thereon.
This court previously has held that, “[w]hile [a]ll property is held subject to the right of government to regulate its use in the exercise of the police power; Figarsky v. Historic District Commission, 171 Conn. 198, 206, 368 A.2d 163 (1976); if regulation goes too far, it will be recognized as a taking. . . . Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014, 112 S. Ct. 2886,120 L. Ed. 2d 798 (1992). In analyzing regulatory action to determine whether it goes too far, we are mindful that the difference between a regulation that results in a compensable taking and one that does not
The no rental condition does not deprive the plaintiffs of all economically viable use of their property. They
I recognize that a zoning action that is beyond the zoning power may constitute an unconstitutional taking, no matter how far it goes. E.g., Nectow v. Cambridge, 277 U.S. 183, 48 S. Ct. 447, 72 L. Ed. 842 (1928); see also Port Clinton Associates v. Board of Selectmen, 217 Conn. 588, 600, 587 A.2d 126, cert. denied, 502 U.S. 814, 112 S. Ct. 64, 116 L. Ed. 2d 39 (1991) (“[w]hen the regulation itself is not a ‘valid’ exercise of the police power, United States Supreme Court precedents imply that no matter how ‘far’ it goes, the regulation may constitute a taking”). I concluded in part II of this opinion, however, that the board reasonably could have believed that the no rental condition was within its authority to impose, and that the imposition of that condition, therefore, was not an obviously invalid use of the board’s power. Therefore, without deciding whether the condition, as an ultra vires action, was an unconsti
In sum, I would conclude that the no rental condition does not fall within any of the exceptions to the bar on collateral attacks of zoning actions, and that the trial court, therefore, lacked subject matter jurisdiction to entertain the plaintiffs’ appeal.
Accordingly, I respectfully dissent.
The Appellate Court characterized as dictum our language in Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 104-105, recognizing possible exceptions to the bar on collateral attacks. Gangemi v. Zoning Board of Appeals, supra, 54 Conn. App. 569 n.7. I disagree. As I discuss more fully later in this opinion, this court clearly indicated in Upjohn Co. that its analysis would have been very different had it concluded that there
General Statutes § 8-6 provides: “(a) The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter; (2) to hear and decide all matters including special exceptions and special exemptions under section 8-2g upon which it is required to pass by the specific terms of the zoning bylaw, ordinance or regulation; and (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed. No such board shall be required to hear any application for the same variance or substantially the same variance for a period of six months after a decision by the board or by a court on
“(b) Any variance granted by a zoning board of appeals shall ran with the land and shall not be personal in nature to the person who applied for and received the variance. A variance shall not be extinguished solely because of the transfer of title to the property or the invalidity of any condition attached to the variance that would affect the transfer of the property from the person who initially applied for and received the variance.”
See footnote 2 of this opinion for the text of § 8-6 (a) (3).
Although the plaintiffs in Ewing did not challenge the power of the municipality to enact the ordinance, the court’s analysis paralleled the analysis used in the cases considering ultra vires claims. See generally Ewing v. Carmel-by-the-Sea, supra, 234 Cal. App. 3d 1579.
The court in Kirsch Holding Co. v. Manasquan, supra, 59 N.J. 241, based its conclusion on the unreasonableness and arbitrariness of the ordinances, concluding that the ordinances did not “have a real and substantial relation to the object sought to be attained”; id., 251; and that they were “sweepingly excessive.” Id., 252. The court’s reasoning focused on the ordinances’ restrictive definition of family, rather than on the rental ban. See generally id., 251-52. To the extent that Kirsch Holding Co. may be read as holding that restrictions on the definition of family are inherently unconstitutional, that holding has been superseded by New Jersey cases holding that the strict use, not user principle had been implicitly overruled, and that regulations on users of land, as opposed to land use, are not inherently ultra vires. See Taxpayers Assn. of Weymouth Township, Inc. v. Weymouth Township, supra, 71 N.J. 277; Bonner Properties, Inc. v. Franklin Township Planning Board, supra, 185 N.J. Super. 567.
Nevertheless, the court’s reasoning in Kirsch Holding Co. is equally applicable to the validity of the ban on rentals, an issue on which there is no superseding authority. The court in Kirsch Holding Go. indicated that “the evil [sought to be prevented by the ordinances] arises because of the offensive personal behatvior of many of these unrelated groups”; (emphasis in original) Kirsch Holding Co. v. Manasquan, supra, 59 N.J. 253; and that
Kirsch Holding Co. was criticized in Boraas v. Belle Terre, 367 F. Sup. 136, 149 (E.D.N.Y. 1972), a case that ultimately was appealed to the United States Supreme Court. See Belle Terre v. Boraas, 416 U.S. 1, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974). In the latter case, the United States Supreme Court suggested that the zoning power includes the power to enact an ordinance restricting the definition of family for zoning purposes provided that the ordinance does not infringe upon any fundamental right and is rationally related to a permissible state objective. See id., 9.
I assume that, before the granting of the variance, the plaintiffs’ property was used as a summer cottage. In granting the variance with the no rental condition, the board reasonably could have expected that the properly would be used by the occupants as a year-round home. As was suggested at oral argument, the board also reasonably could have expected that, had it granted the variance without a no rental condition, the properly could be rented to students for nine months of the year and used as a summer residence during the summer months.
The majority states that it “fail[s] to see how this condition . . . conceivably may serve any legal or useful purpose—except to maintain the unfair market advantage that the other unencumbered houses have, a purpose that the law should hardly label as ‘legal and useful,’ ” thus suggesting that the board and the intervening defendants, who are the owners of the property abutting the plaintiffs’ property, have a nefarious, unstated motive in opposing the plaintiffs’ claims. I note, however, that, although the no rental condition may have some negative effect on the marketability of the plaintiffs’ property, that effect hardly could have been the purpose of the board or the other property owners in the beach district. First, I note that it was the plaintiffs who offered the condition in exchange for the variance. If the other property owners in the beach district have any interest in the condition at all, it simply is that they believe that the condition will improve living conditions within the beach district. If they are correct, the condition will directly improve their living conditions while they occupy their properties and, admittedly, likely will increase their property values, both of which are legitimate zoning purposes.
I recognize that the plaintiffs bear a burden that some of the other benefited property owners do not bear—although, as the majority notes, an unknown number of other beach district property owners also are bound by similar no rental conditions. See footnote 17 of majority opinion. That was also the case, however, in Burlington v. Jencik, supra, 168 Conn. 506. Indeed, that always will be the case when a condition is imposed on a variance. Finally, I note that, to the extent that property values in the area generally are enhanced by the existence of no rental conditions on some of the properties, the negative effect of the condition on the value of the plaintiffs’ property will be offset to some extent.
General Statutes § 8-2 provides in relevant part: “(a) The zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts and other open spaces; the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes, including water-dependent uses as defined in section 22a-93, and the height, size and location of advertising signs and billboards. Such bulk regulations may allow for cluster development as defined in section 8-18. Such zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconsl ruction, alteration or use
As I note in part IV D of this opinion, I would not hold, as the New Hampshire Supreme Court did inMcEvoy, that, based on this court’s decision in Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 96, a regulation that constitutes “an out-an-out plan of extortion”; (internal quotation marks omitted) Auburn v. McEvoy, supra, 131 N.H. 384; is immune from collateral attack. I cite McEvoy simply to demonstrate that there is no principled reason to distinguish zoning actions that are ultra vires from actions that violate public policy for purposes of determining whether the interests of finality and fairness preclude a collateral attack. In either case, a zoning
In this regard, I note that there are innumerable sticks in the bundle of property rights, e.g., the right to exclude, to occupy the property, to improve the property, to conduct a business thereon, to subdivide, to grant limited interests in the property, etc., and, therefore, the majority’s characterization of the plaintiffs’ right to rent as “one-third” of their bundle of rights is arbitrary. I fail to see why renting is an economic choice, but subdividing, improving or conducting a business on a property is not.
Because the plaintiffs have not argued that the state constitution affords them a greater level of protection than the fifth amendment takings clause, and because this court never has “interpreted the two provisions to require different analys[e]s”; Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 250 n.16, 662 A.2d 1179 (1995); I assume, for purposes of (his opinion, that article first, § 11, provides the same level of protection for property owners as its federal counterpart.
The board argues that the plaintiffs may not raise a constitutional challenge under the appeal procedures set forth in General Statutes § 8-8, but, rather, must bring a separate action for declaratory and injunctive relief. E.g., Bierman v. Planning & Zoning Commission, 185 Conn. 135, 139-40, 440 A.2d 882 (1981). I disagree. The rationale for that rule is that “a party cannot seek the relief provided in an ordinance or statute and later in the same proceeding raise the question of its constitutionality.” (Internal quotation marks omitted.) Id., 139 n.7. Furthermore, a facial challenge to a generally applicable ordinance “could seriously affect the rights of other property owners in the community”; id., 140; and, therefore, procedures that permit notice to and intervention by all interested parties must be used. See id.
In the present case, the plaintiffs have not attacked any ordinance under which they previously had sought relief and are not mounting a facial challenge to a generally applicable ordinance. Rather, they are challenging the constitutionality of a condition to a variance that is applicable only to their
