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****************************************************** The ``officially released'' date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ``officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ``officially released'' date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** SEBASTIAN GANGEMI ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF FAIRFIELD (SC 16208)
McDonald, C. J., and Borden, Norcott, Katz, Palmer, Sullivan and Vertefeuille, Js.1 Argued June 1, 2000--officially released January 2, 2001 Counsel

John E. Curran, for the appellants (plaintiffs). Richard H. Saxl, for the appellee (defendant). John F. Fallon, for the appellees (intervening defendants).
Opinion

BORDEN, J. 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

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.2 The plaintiffs claim that the trial court improperly dismissed their appeal because the continued maintenance of the condition violates the strong public policy against restraints on the alienation of property.3 We agree. Accordingly, we reverse the judgment of the Appellate Court. In 1986, the plaintiffs secured a zoning variance from the board, one condition of which was ``[o]wner occupancy only.''4 In 1996, the Fairfield zoning enforcement officer determined that the plaintiffs were violating the condition by renting their property, and he ordered them to comply with the condition. The plaintiffs applied to the board requesting that it invalidate the condition. The board denied the application. The plaintiffs appealed to the trial court, which rendered judgment dismissing the appeal. The plaintiffs appealed to the Appellate Court, which affirmed the trial court's judgment. Gangemi v. Zoning Board of Appeals, 54 Conn. App. 559, 736 A.2d 167 (1999). This certified appeal followed.5 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 regulations. The variance that the plaintiffs sought would have allowed them to enlarge their nonconforming home6 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 [yearround] 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.7 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.8 The plaintiffs appealed from the board's decision to the Superior Court on August 21, 1996, pursuant to General Statutes

Download Gangemi v. Zoning Board of Appeals (dissent below).pdf

Connecticut Law