Mayer-Wittmann v. Zoning Board of Appeals ( 2019 )

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MAYER-WITTMANN v. ZONING BOARD OF APPEALS—CONCURRENCE
ECKER, J., with whom ROBINSON, C. J., joins, con-
curring in the judgment. Although I agree with the dispo-
sition of this appeal, I write separately because I do
not agree with substantial aspects of the legal analysis
employed by the majority opinion to reach that result.
More specifically, I disagree with the constitutional
point raised in the final paragraph of part I of the major-
ity opinion, and I further disagree with that portion
of part II of the majority opinion suggesting that the
issuance of the variances to the defendant Paul E. Breu-
nich was in any way constitutionally compelled such
that the denial of the application would have amounted
to a practical confiscation or inverse condemnation of
his property. I instead would affirm the judgment of
the trial court dismissing the appeal of the plaintiff,
Karl Mayer-Wittmann, executor of the estate of Gerda
Mayer-Wittmann, on the ground that the named defen-
dant, the Zoning Board of Appeals of the City of Stam-
ford (zoning board), did not abuse its discretion when
it granted the variances on the basis of its finding that
the natural event that severely damaged Breunich’s sea
cottage, combined with the mandatory flood regula-
tions imposed by the city of Stamford and the Federal
Emergency Management Agency (FEMA), combined to
create an unusual hardship. I therefore concur in the
judgment.
I
My disagreement with the majority arises at two dif-
ferent points in its opinion. First, in the final portion of
part I of its opinion, the majority refers to constitutional
concerns that would arise were the court to hold that
the sea cottage automatically lost its legally noncon-
forming status either by operation of article IV, § 10
(C), of the Zoning Regulations of the city of Stamford
(regulations),1 or because Breunich was required to
obtain variances before the zoning board could autho-
rize reconstruction of the sea cottage.2 Second, and
more prominently, part II of the majority opinion holds
that ‘‘Breunich established the existence of an unusual
hardship warranting approval of his application for vari-
ances because the strict enforcement of the regulations
would have deprived him of his constitutionally pro-
tected right to continue using the sea cottage, which
is an existing, legally nonconforming accessory struc-
ture. . . . [W]ithout variances in some form, Breu-
nich simply would be unable to reconstruct the sea
cottage, resulting in an inverse condemnation of his
existing, legally nonconforming use. In other words,
it would result in an unusual hardship.’’ (Emphasis
added.)
I cannot agree with the majority’s constitutional anal-
ysis. Indeed, I understand the applicable law, herein-
after referred to as the ‘‘casualty doctrine,’’ to say
exactly the opposite, namely, that a landowner gener-
ally has no constitutional right to rebuild a legally non-
conforming structure that has been substantially
destroyed by fire, flood, or some other comparable
force majeure.3 See generally D. Gross, annot., ‘‘Zoning:
Right to Repair or Reconstruct Building Operating as
Nonconforming Use, After Damage or Destruction by
Fire or Other Casualty,’’ 57 A.L.R. 3d 419 (1974 and Supp.
2018) (collecting extensive case law from across the
country, including Connecticut); 4 E. Ziegler, Rath-
kopf’s The Law of Zoning and Planning (2011) § 74:11,
pp. 74-38 through 74-42 (citing cases). The casualty
doctrine is no stranger to Connecticut; one of the early
cases articulating the doctrine, still cited in modern
cases and treatises on the subject, was decided by this
very court. See State v. Hillman, 110 Conn. 92, 107,
147 A. 294 (1929) (rejecting landowner’s constitutional
attack on zoning regulation that prohibited restoration
of legally nonconforming building if more than 50 per-
cent of its assessed value was destroyed by fire). Yet
another Connecticut case lends indirect but significant
support to the same point by affirming a zoning board’s
decision denying the landowners’ petition for permis-
sion to rebuild a legally nonconforming structure that
had been destroyed by fire. See Piccolo v. West Haven,
120 Conn. 449, 455, 181 A. 615 (1935).
This court’s decision in Hillman provides an early but
nonetheless representative illustration of the casualty
doctrine at work. Indeed, it continues to be cited as
a seminal case on the subject.4 The defendant, Isaac
Hillman, was a corporate officer of an industrial com-
pany that operated within the city of Bridgeport prior
to the enactment of zoning regulations in 1925, and then
continued to operate as a preexisting nonconforming
use after the zoning regulations were adopted. State v.
Hillman, supra, 110 Conn. 94–98 (preliminary state-
ment of facts and procedural history). The next year,
a fire destroyed numerous company buildings neces-
sary for the operation of the business, and the company
sought to rebuild. The company’s application to recon-
struct the damaged buildings was denied by the city,
however, pursuant to a regulation prohibiting recon-
struction of a nonconforming building that is damaged
by fire in an amount exceeding 50 percent of the build-
ing’s value. Id., 98–99 (preliminary statement of facts
and procedural history). Hillman was convicted of vio-
lating the city’s zoning laws after the company failed
to relocate and instead continued to operate from its
original location using temporarily repaired buildings.
Id., 99 (preliminary statement of facts and procedural
history). This court rejected the defendant’s claim that
the operative zoning regulations were unconstitutional
‘‘in that they purport to deprive this company and this
defendant of his property without just compensation.’’
Id., 105. The court’s constitutional analysis concludes
that ‘‘we are unable to hold that when over [50 percent]
of [the company’s] buildings are destroyed it was not
a fair exercise of the police power to refuse to permit
the company to restore the burned building and con-
tinue the nuisance in [the newly zoned district].’’ Id.,
107.5
As previously noted, the case law from across the
country is consistent with our decision in Hillman as
it relates to the casualty doctrine. The Rathkopf treatise
characterizes as ‘‘customary’’ zoning regulations termi-
nating a legal nonconformity in the event of a casualty
causing substantial destruction of the nonconforming
structure, and describes the underlying logic of such
regulations as follows: ‘‘In conformity with the philoso-
phy that the spirit of zoning is to restrict, rather than
increase, nonconforming uses and to eliminate such
uses as speedily as possible, and in order to discourage
the reestablishment of nonconforming uses, the invest-
ment value of which has been lost to the owner through
accident and through no action on the part of the munic-
ipality, it is customary to provide in zoning ordinances
a prohibition against the replacement of a noncon-
forming structure or one employed in a nonconform-
ing use in excess of a specified percentage, this per-
centage being fixed as equivalent to substantial
destruction.’’ (Emphasis added.) 4 E. Ziegler, supra,
§ 74:11, p. 74-38.6
The Rathkopf treatise quotes at length from a case
decided by the Colorado Supreme Court explaining why
such regulations pass constitutional muster: ‘‘ ‘If a prop-
erty owner has invested money in improvements in
order to put his property to a particular use, which
is lawful at that time, and if that use is subsequently
outlawed by a zoning ordinance, he loses not only the
potential use but also the value of his investment. To
impose this additional loss upon him is unreasonable,
and therefore he is entitled to continue to use his prop-
erty as he did before. On the other hand, if the improve-
ments are destroyed or abandoned, he has lost the value
of his investment independently of the ordinance and
there is no reason why his relationship to the zoning
ordinance should be any different [than] that of his
neighbor whose property was unimproved. . . . If the
owner of a nonconforming use suffers the destruction
of his improvements, he becomes the owner of unim-
proved property. The unimproved property may be
restricted as to use without a denial of due process.
The effect of the fire which substantially destroyed the
service station was to sever the improvements from the
real estate. Had the [plaintiff] been denied a building
permit for a filling station on unimproved property, no
one could contend that it was unreasonable or that it
was a denial of due process.’ ’’ Id., pp. 74-39 through
74-40, quoting Service Oil Co. v. Rhodus, 179 Colo. 335,
347–48, 500 P.2d 807 (1972).
The majority contends that the casualty doctrine
would not permit the zoning board to deny a variance in
the present case because, in the absence of a variance,
Breunich would ‘‘lose the entire value of the sea cot-
tage’’; (emphasis in original) footnote 13 of the majority
opinion; whereas the cases finding no constitutional
violation involve situations in which the landowner
remains able to make some other use of the property
despite the loss of a building to fire or other casualty.
As I pointed out in my discussion of Hillman; see foot-
note 5 of this concurring opinion; the majority’s point
conflates two different calculations, the loss of value
in the nonconforming building and the loss of value
in the property. The former calculation is used in many
zoning regulations, including Stamford’s, to determine
whether the landowner has the right, without a vari-
ance, to rebuild a nonconforming building after it has
been damaged; the latter calculation is used to decide
whether just compensation must be paid by a municipal-
ity that has prohibited restoration. The fact that the
landowner may lose the entire value of the damaged
structure is not the critical issue under either calcula-
tion. Indeed, the more severe the loss caused by the
casualty to the building itself, the stronger the case
becomes for application of the casualty doctrine
because its applicability depends on the loss being
caused by a force other than the zoning regulation.
See, e.g., Krul v. Board of Adjustment, 122 N.J. Super.
18, 24–25, 298 A.2d 308 (Law. Div. 1972) (‘‘The right to
restore or repair thus is limited by the caveat that the
structure be only partially destroyed. . . . Thus where
the destruction of a building is only partial, restoration
or repair is permitted to protect and maintain that
investment in recognition of the right of the property
owner to continued protection of his use free of the
restriction imposed subsequent to the vesting of that
use. If, however, a structure is destroyed totally rather
than partially, the property owner in effect holds only
vacant land and should be controlled by the existing
zoning restrictions in the same manner as other owners
of undeveloped land. Under such circumstances the
dilemma of the property owner—the loss of his invest-
ment—is one created by the unfortunate casualty and
not by virtue of the power of government.’’ [Citations
omitted.]), aff’d, 126 N.J. Super. 150, 313 A.2d 220 (App.
Div. 1973).7
II
That said, I nonetheless agree with the outcome
reached by the majority because I do not believe that
our precedent, properly construed, requires a zoning
board to deny a variance in all cases where the land-
owner fails to make the showing necessary to establish
a constitutional violation, i.e, that enforcement of the
zoning requirement has deprived the property of all
reasonable use and value, thereby practically confiscat-
ing the property. That strict standard applies to claims
based on economic hardship, but there are situations
where a landowner may establish the necessary hard-
ship without satisfying the constitutional standard, and
this is such a case. The sea cottage, a legally noncon-
forming accessory structure, was severely damaged by
a catastrophic natural event; the demands of public
health and safety had caused both the local and federal
governments to enact flood regulations of such impor-
tance that compliance was required, despite the special
status accorded to nonconforming structures; ‘‘as
before’’ restoration was flatly impossible due to the
particular location of the property and related soil con-
ditions; and Breunich, the landowner, had made good
faith efforts to reduce the nonconformities to the maxi-
mum extent possible under the circumstances. In my
view, the zoning board did not act unlawfully when it
determined that this confluence of factors combined
to subject the landowner, through no fault of his own,
to an unusual hardship warranting issuance of the
requested variances.
I observe at the outset that the standard of review
is correctly summarized by the majority opinion, and
must not be overlooked in our consideration of the
merits. See Bloom v. Zoning Board of Appeals, 233
Conn. 198, 205–206, 658 A.2d 559 (1995) (‘‘The standard
of review on appeal from a zoning board’s decision to
grant or deny a variance is well established. We must
determine whether the trial court correctly concluded
that the board’s act was not arbitrary, illegal or an abuse
of discretion. . . . Courts are not to substitute their
judgment for that of the board . . . and decisions of
local boards will not be disturbed so long as honest
judgment has been reasonably and fairly exercised after
a full hearing. . . . Upon appeal, the trial court reviews
the record before the board to determine whether it
has acted fairly or with proper motives or upon valid
reasons. . . . We, in turn, review the action of the trial
court. . . . The burden of proof to demonstrate that
the board acted improperly is upon the plaintiffs.’’ [Cita-
tions omitted; internal quotation marks omitted.]); see
also Caruso v. Zoning Board of Appeals, 320 Conn.
315, 321, 130 A.3d 241 (2016) (‘‘[a] zoning board of
appeals is endowed with a liberal discretion, and its
action is subject to review by the courts only to deter-
mine whether it was unreasonable, arbitrary or illegal’’
[internal quotation marks omitted]).8
The path to affirmance, in my view, does not require
us to ascend to constitutional heights. As the majority
correctly points out in quoting E & F Associates, LLC
v. Zoning Board of Appeals, 320 Conn. 9, 15, 127 A.3d
986 (2015), a variance may be granted upon a showing
by the landowner that, ‘‘ ‘because of some peculiar char-
acteristic of [the] property, the strict application of the
zoning regulation produces an unusual hardship, as
opposed to the general impact which the regulation has
on other properties in the zone. . . . Accordingly, we
have [concluded that a zoning board of appeals may]
grant a variance only when two basic requirements are
satisfied: (1) the variance must be shown not to affect
substantially the comprehensive zoning plan, and (2)
adherence to the strict letter of the zoning ordinance
must be shown to cause unusual hardship unnecessary
to the carrying out of the general purpose of the zoning
plan. . . . Proof of exceptional difficulty or unusual
hardship is absolutely necessary as a condition prece-
dent to the granting of a zoning variance.’ ’’ This legal
standard is prescribed by statute; see General Statutes
§ 8-6 (a) (3);9 and we must be careful not to change its
meaning by judicial gloss.
Under the circumstances of this case, I do not agree
with the majority that the statutory hardship standard
is effectively ‘‘one and the same’’ as the legal standard
establishing a constitutional violation under the takings
clause. I certainly understand how the majority arrived
at this conclusion, because our cases, especially
recently, paint with the same broad brush in describing
the hardship doctrine.10 Unfortunately, some of these
cases have overlooked an important doctrinal qualifica-
tion when they observe that the zoning hardship stan-
dard is ‘‘the same’’ as the constitutional takings stan-
dard: the (very high) standard applied to adjudicate
constitutional claims properly is used to decide vari-
ance applications only when the landowner relies on
a claim of economic or financial hardship to justify
the variance.
This critical doctrinal limitation can be discerned by
a close reading of most of our zoning cases invoking
the heightened standard, because those cases, which
usually involve commercial landowners, indicate that
the standard applies when the owner’s hardship is based
on the economic or financial impact of the zoning
restriction at issue.11 The qualification was more clearly
evident in some of our earlier cases.12 I fear that if
we are not careful, the qualification is at risk of being
forgotten altogether.
The distinction between the constitutional standard
and the zoning law standard has been noted by various
courts and commentators. See Belvoir Farms Home-
owners Assn., Inc. v. North, 355 Md. 259, 282, 734 A.2d
227 (1999) (‘‘We reject the proposition that the unneces-
sary or unwarranted hardship standard is equal to an
unconstitutional taking standard. If this were true, it
would be a superfluous standard because the constitu-
tional standard exists independent of variance stan-
dards.’’); First North Corp. v. Board of Zoning Appeals,
8 N.E.3d 971, 984 (Ohio 2014) (‘‘[T]he unnecessary hard-
ship standard for granting use variances is not the same
as the constitutional taking standard. The ‘hardship’
standard necessarily admits that there is some use for
land, but that use works an unnecessary hardship on the
landowner. The taking standard . . . is one applying
to ‘a regulation that permanently requires a property
owner to sacrifice all economically beneficial uses of
his or her land.’ . . . The difference between the two
standards explains why a variance from a zoning ordi-
nance can be granted under conditions in which the
application of that particular zoning ordinance would
not result in an unconstitutional taking of property.’’
[Citation omitted; emphasis in original.]); State v. Board
of Adjustment, 244 Wis. 2d 613, 642, 628 N.W.2d 376
(2001) (‘‘[t]he unnecessary hardship standard ‘is neither
the same nor as demanding as a takings analysis’ ’’
[emphasis in original]); 8 E. McQuillin, Municipal Cor-
porations (3d Ed. Rev. 1991) § 25.167, p. 761 (‘‘[a] condi-
tion of difficulty or hardship is not deemed equivalent
to a taking of property, in the constitutional sense’’).13
Once the limitation is acknowledged, the legal analy-
sis applicable to the present case becomes straightfor-
ward. As previously mentioned, the question is whether
the plaintiff has carried his burden of proving that the
zoning board abused its discretion when it found that
(1) the variances do not substantially affect the compre-
hensive zoning plan, and (2) adherence to the strict
letter of the relevant zoning ordinances causes Breunich
to suffer an unusual hardship unnecessary to carrying
out the general purpose of the zoning plan. See E & F
Associates, LLC v. Zoning Board of Appeals, supra, 320
Conn. 15.
The variance application at issue in this case did not
rely at all on a claim of financial deprivation. The basis
for the requested variances was not that Breunich’s
property had lost value or his income would be dimin-
ished unless he was allowed to rebuild the sea cottage.
His claim, rather, was predicated on the unusual nature
of the hardship suffered as a result of the confluence
of four factors: (1) the sea cottage is a century old
nonconforming structure that will be gone forever if a
variance is not granted;14 (2) the sea cottage is located
within the VE and AE Flood Zones under FEMA stan-
dards, which are incorporated into the zoning regula-
tions; (3) ‘‘it would be impossible for [Breunich] to
meet the more stringent flood zone restrictions without
further increasing the height of the sea cottage’’; and
(4) although the zoning regulations had been amended
to dispense with the need for variances for main houses,
the sea cottage is an accessory structure for which a
variance is required. Under these unusual factual cir-
cumstances, moreover, the zoning board concluded that
the requested variances did not undermine the compre-
hensive zoning plan but, to the contrary, brought ‘‘the
sea cottage into compliance with the current FEMA
and city of Stamford flood regulations.’’
I would hold that the zoning board was entitled to
determine, as it did, that Breunich satisfied the applica-
ble legal standard required to establish an unusual hard-
ship. The sea cottage was severely damaged by a hurri-
cane. It could not be rebuilt exactly as before due to
FEMA and city of Stamford flood regulations. These
regulations not only relate directly to public health and
safety,15 but, as the majority emphasizes, the failure of
a municipality to promulgate and enforce such regula-
tions could render properties throughout the entire
municipality ineligible for protection under the National
Flood Insurance Program, a federal program making
flood insurance available to those who would otherwise
be unable to procure it.
This confluence of factors—a catastrophic natural
event causing severe damage, property conditions and
legal imperatives making ‘‘as before’’ restoration flatly
impossible, and good faith efforts by the landowner to
reduce the nonconformities to the maximum extent
possible under the circumstances—are sufficient, in my
view, to warrant the zoning board’s finding that Breu-
nich had established the existence of an unusual hard-
ship, and I therefore would affirm the judgment of the
trial court dismissing the appeal. I note that two other
trial courts recently have reached similar conclusions
in similar cases involving the reconstruction of storm
damaged, nonconforming beachfront homes. See Turek
v. Zoning Board of Appeals, Superior Court, judicial
district of Hartford, Docket No. LND-CV-XX-XXXXXXX-S
(April 4, 2018) (66 Conn. L. Rptr. 363, 361); Kwesell
v. Zoning Board of Appeals, Superior Court, judicial
district of New Haven, Docket No. NNH-CV-15-
6056545–S (May 25, 2017) (64 Conn. L. Rptr. 549,
552–54).
Little needs to be said in response to the plaintiff’s
argument that the zoning board erroneously concluded
that the hardship suffered by Breunich was not different
in kind from that generally affecting properties in the
same zone. See, e.g., Garibaldi v. Zoning Board of
Appeals, 163 Conn. 235, 238, 303 A.2d 743 (1972) (‘‘[i]t
is clear that for a hardship to justify the granting of a
variance, the hardship must be different in kind from
that affecting generally properties in the same zoning
district’’) There is no reason to partake in the majority
opinion’s willingness to assume the truth in the plain-
tiff’s contention on this point. The plaintiff misappre-
hends the issue by arguing that there are many other
properties in the flood zone required to comply with
the applicable flood regulations, there were many other
buildings destroyed by Hurricane Sandy, and nothing
makes Breunich’s case special. The argument misses
the fact that Breunich’s contention was that his hard-
ship consisted of the unusual confluence of factors
and features making his situation different, namely, the
hurricane’s destruction of a nonconforming accessory
structure located in a highly restrictive flood zone sub-
ject to the mandatory flood regulations. The plaintiff,
for his part, offers nothing but speculative hypotheses
to suggest that any significant number of other landown-
ers were similarly affected. On the other hand, the tran-
script of the zoning board’s meeting on Breunich’s appli-
cation reflects both that its members were fully aware
of the legal standard requiring an unusual impact on
the applicant, and that the board, upon consideration,
found that this requirement had been met.16 See
Francini v. Zoning Board of Appeals, 228 Conn. 785,
791, 639 A.2d 519 (1994) (noting that zoning board mem-
bers ‘‘are entitled to take into consideration whatever
knowledge they acquire by personal observation’’
[internal quotation marks omitted]).
For these reasons, I agree with the majority’s conclu-
sion that ‘‘the trial court correctly determined that the
zoning board properly granted Breunich’s application
for variances from the regulations and, therefore, prop-
erly dismissed the plaintiff’s appeal.’’ Accordingly, I con-
cur in the judgment.
1
Article IV, § 10 (C), of the Stamford Zoning Regulations provides in
relevant part that ‘‘[a]ny non-conforming building . . . which has been or
may be damaged by . . . flood . . . [or] act of God . . . may be recon-
structed and used as before, if reconstruction is started with[in] twelve . . .
months of such calamity . . . .’’
2
Invoking the canon of constitutional avoidance in statutory construction,
the majority rejects the plaintiff’s absolutist construction of the applicable
regulations on the ground that ‘‘a regulation that entirely deprived a building
of its legally nonconforming status might be confiscatory as applied and,
as such, of questionable constitutionality.’’
3
It is undisputed in the present case that the sea cottage sustained damage
exceeding 50 percent of its value, which triggers application of the relevant
flood zone elevation requirements to restoration of the structure notwith-
standing its legally nonconforming status. The majority also correctly notes
that article IV, § 10 (B), of the Stamford Zoning Regulations states in relevant
part: ‘‘The total structural repairs and alterations that may be made in a
structure which is non-conforming in use only shall not exceed [50] percent
. . . of its replacement value at the time of the application for the first
structural change, unless changed to a conforming use. . . .’’
4
See, e.g., 6 N. Williams & J. Taylor, American Land Planning Law (Rev.
Ed. 2019) § 122:2 (describing Hillman as ‘‘the first zoning case in Connecti-
cut’’ and noting that ‘‘the opinion specifically approved a prohibition against
rebuilding a nonconforming establishment’’ substantially destroyed by fire).
5
The majority suggests that the casualty doctrine is not operative in
Hillman and contends that the case instead supports the view that a munici-
pality may prohibit the restoration of a preexisting nonconforming structure
only if the landowner is able to replace the structure with a conforming
building or buildings of comparable value. I read Hillman very differently,
as do the treatises cited in part I of this concurring opinion. First and
foremost, Hillman is a case about loss causation, and it remains an important
precedent in that context because it is among the first judicial opinions in
the country to articulate the rule that the government acts within constitu-
tional limits when it refuses to permit the restoration of a nonconforming
building substantially destroyed by fire. See W. Horton & B. Levesque,
‘‘The Wheeler Court,’’ 24 Quinnipiac L. Rev. 301, 329 (2006) (stating that
‘‘Connecticut was leading the country’’ when Hillman ‘‘sustained a [zoning]
regulation prohibiting the rebuilding of a nonconforming factory after a fire
destroyed over half the value of the buildings’’). Second, in Hillman, the
constitutional analysis did not turn on the landowner’s ability vel non to
replace or rebuild the destroyed buildings. If the loss to the nonconforming
building is substantial enough to trigger application of the regulation prohib-
iting reconstruction, then the constitutional analysis examines the loss in
value to the property to determine whether a taking has occurred. This
point explains why the court in Hillman observed that ‘‘[t]here is nothing
in the [trial court’s] finding showing the extent of the diminution in value
of the property or the business; it may be that these were small in extent.’’
(Emphasis added.) State v. Hillman, supra, 110 Conn. 107. Applying this
observation to the present case, it is clear that Breunich’s property retains
most of its value even without the sea cottage. Hillman thus demonstrates
that Breunich would have no plausible constitutional claim if the municipal
defendants had denied his application.
6
There are cases to the contrary, but the Rathkopf treatise explains that
the exceptions typically involve jurisdictions in which ‘‘the zoning enabling
act specifies the extent to which municipalities may restrict the right of
a nonconforming owner to repair or restore structures which have been
accidentally destroyed. Where such a statutory provision protects the right
of a nonconforming owner to repair a structure which has been partially
destroyed, the provision has been construed to require termination of the
nonconforming use only if the structure in which it has been operated is
totally destroyed. Where this type of statutory provision exists, the issue in
a case involving destruction of a structure housing a nonconforming use is
whether the extent of the destruction found is partial or is so extensive as
to amount to total destruction.’’ (Footnotes omitted.) 4 E. Ziegler, supra,
§ 74:11, p. 74-40. The relevant Connecticut statute contains no such provi-
sion. See General Statutes § 8-2.
7
In a similar vein, the majority opinion states that the present case is
distinguishable from Hillman, Piccolo, and the other casualty doctrine cases
because, in contrast to those cases, the landowner here had no options:
‘‘[T]here is no evidence in the present case that Breunich would be able to
construct a conforming structure of some type on the property if the vari-
ances were denied, and he would therefore lose the entire value of the sea
cottage.’’ (Emphasis in original.) Footnote 13 of the majority opinion. I see
two interconnected problems with this contention. First, the idea underlying
the casualty doctrine is not that the constitution allows local governments
to adopt regulations prohibiting restoration of the nonconforming structure
only if the owner is able to recover its loss by building a conforming structure.
Instead, as I discussed in the text accompanying this footnote, the underlying
idea is that, when the damage caused by the casualty is sufficiently severe,
the government does not cause the loss and, therefore, need not permit
restoration at all, especially in light of the background principle that noncon-
formities should be reduced or eliminated over time. See Salerni v. Scheuy,
140 Conn. 566, 570, 102 A.2d 528 (1954) (‘‘[i]t is a general principle in zoning
that nonconforming uses should be abolished or reduced to conformity as
quickly as the fair interest of the parties will permit’’).
Second, even if I were to assume, as the majority does, that the refusal
to permit reconstruction of the nonconforming sea cottage in this particular
case resulted in Breunich being unable to replace it by building a conforming
structure elsewhere on the property—meaning that he has lost ‘‘the entire
value of the sea cottage’’—there would still be no viable claim of a constitu-
tional violation on this record. (Emphasis in original.) Footnote 13 of the
majority opinion. As I noted previously, the takings analysis in this context
looks to the diminished value to the entire property, not to the loss in value
to the structure (or use) that cannot be restored. This approach is consistent
with the treatment of takings more generally, where the constitutional analy-
sis turns on the impact of the regulation on the total value of the property,
not only the component of the property ‘‘confiscated’’ by the regulation.
See Murr v. Wisconsin, U.S. , 137 S. Ct. 1933, 1943–44, 198 L. Ed.
2d 497 (2017) (holding that existence of regulatory taking is determined by
comparing value that has been taken from property with value that remains
in property viewed in its entirety). I have found nothing in the case law to
support the majority’s suggestion that the constitutional analysis is based
on the loss of the destroyed building itself without reference to the value
of the entire property.
8
This situation should not be confused with that in which the hardship
claim is made on the basis of economic hardship and the underlying facts
indisputably establish that the property retains some economically viable
use, in which case the standard of review is plenary. E & F Associates, LLC
v. Zoning Board of Appeals, 320 Conn. 9, 14–15, 127 A.3d 986 (2015) (‘‘[T]he
question of whether the board had authority to grant a variance pursuant
to [General Statutes] § 8-6 (a) when the property would not lack economic
value even if the variance were denied is a question of law. Accordingly,
our review is plenary.’’).
9
Section 8-6 (a) provides in relevant part: ‘‘The zoning board of appeals
shall have the following powers and duties . . . (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 conserv-
ing 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. . . .’’
10
See, e.g., Barton v. Norwalk, 326 Conn. 139, 148 n.6, 161 A.3d 1264 (2017)
(‘‘[t]he unusual hardship test in zoning variance cases and the substantial
destruction test in inverse condemnation cases require a showing that the
property cannot be utilized for any reasonable purpose’’); Caruso v. Zoning
Board of Appeals, supra, 320 Conn. 322–23 (‘‘Unusual hardship may be
shown by demonstrating that the zoning regulation has deprived the property
of all reasonable use and value, thereby practically confiscating the property.
This contention ‘sits at the intersection of two related, yet distinct, areas
of law: land use regulation and constitutional takings jurisprudence.’ . . .
In Connecticut, a taking occurs ‘when a landowner is prevented from making
any beneficial use of its land—as if the government had, in fact, confiscated
it.’ . . . Accordingly, a zoning regulation ‘permanently restricting the enjoy-
ment of property to such an extent that it cannot be utilized for any reason-
able purpose goes beyond valid regulation and constitutes a taking without
due process.’ . . . The same analysis is used in the variance context
because, when the regulation ‘practically destroys or greatly decreases [the
property’s] value for any permitted use to which it can reasonably be put’
. . . the loss of value alone may rise to the level of a hardship.’’ [Cita-
tions omitted.]).
11
See, e.g., E & F Associates, LLC v. Zoning Board of Appeals, supra,
320 Conn. 16 (‘‘considerations of financial disadvantage—or, rather, the
denial of a financial advantage—do not constitute hardship, unless the zoning
restriction greatly decreases or practically destroys [the property’s] value
for any of the uses to which it could reasonably be put’’ [internal quotation
marks omitted]); Rural Water Co. v. Zoning Board of Appeals, 287 Conn.
282, 295, 947 A.2d 944 (2008) (same); Vine v. Zoning Board of Appeals, 281
Conn. 553, 561, 916 A.2d 5 (2007) (‘‘Disadvantage in property value or income,
or both, to a single owner of property, resulting from application of zoning
restrictions, does not, ordinarily, warrant relaxation in his favor on the
ground of . . . unnecessary hardship. . . . Financial considerations are
relevant only in those exceptional situations where a board could reasonably
find that the application of the regulations to the property greatly decreases
or practically destroys its value for any of the uses to which it could reason-
ably be put and where the regulations, as applied, bear so little relationship
to the purposes of zoning that, as to particular premises, the regulations
have a confiscatory or arbitrary effect.’’ [Internal quotation marks omitted.]);
Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030
(1988) (same).
12
A good example is the following statement of the hardship doctrine
authored by Chief Justice Maltbie in Devaney v. Board of Zoning Appeals,
132 Conn. 537, 542–43, 45 A.2d 828 (1946): ‘‘Disadvantage in property value
or income, or both, to a single owner of property, resulting from application
of zoning restrictions, does not, ordinarily, warrant relaxation in his favor
on the ground of practical difficulty or unnecessary hardship. Financial
considerations alone . . . cannot govern the action of the [zoning] board.
. . . Otherwise, there would be no occasion for any zoning law. . . . There
are, however, situations where the application of zoning to a particular
property greatly decreases or practically destroys its value for any permitted
use and the application of the ordinance bears so little relationship to the
purposes of zoning that, as to that property, the regulation is in effect
confiscatory or arbitrary. . . . Provisions authorizing variation in the appli-
cation of the ordinance are designed to permit changes which will prevent
such results. . . . Where the only basis of the claim is economic loss from
the application of the ordinance, there rarely would be justification for a
variation unless this test is met. Where other considerations enter into the
situation, the question necessarily must be left to the sound discretion of
the board, acting within the limitations which we have pointed out, and
always with regard to serving the general purposes to accomplish which
a zoning ordinance is adopted and to the necessity that all property owners
within a zone be treated fairly and equally.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.)
13
Although, to the best of my knowledge, the distinction has not clearly
been made in any holding of this court, Justice Shea articulated the point
with precision in a dissenting opinion: ‘‘Such a finding was not essential in
order to satisfy the requirement of ‘unusual hardship’ for a variance, because
a zoning board of appeals is not restricted to providing relief only in situa-
tions where enforcement of the regulations would create a hardship suffi-
cient to constitute an unconstitutional taking.’’ Adolphson v. Zoning Board
of Appeals, 205 Conn. 703, 720, 535 A.2d 799 (1988) (Shea, J., dissenting).
14
Breunich’s interest in preventing the complete loss of the nonconforming
sea cottage is significant, not because it is entitled to constitutional protec-
tion under these circumstances, but because it represents something signifi-
cantly different than a desire to expand a nonconformity or modernize
a structure merely to satisfy the personal preferences of the owner. In
combination with the other three factors identified here, this consideration
distinguishes the present case from situations in which courts have con-
cluded that a hardship has not been established. See Verrillo v. Zoning
Board of Appeals, 155 Conn. App. 657, 691, 111 A.3d 473 (2015) (‘‘The case
law is replete with instances in which an applicant predicated its claim of
hardship on a desire to expand an existing nonconforming structure for
what our appellate courts have characterized as personal considerations,
such as the desire to obtain more space or to modernize an antiquated
building. It long has been held that ‘disappointment in the use of property
can hardly constitute practical difficulty or unnecessary hardship within the
meaning of a zoning law or regulation.’ ’’).
15
The trial court recognized this point: ‘‘[T]he increased nonconformity
does not have the singular purpose of enhancing [Breunich’s] personal use
of the sea cottage, but instead has the purpose of bringing the sea cottage
into compliance with the current FEMA and city of Stamford flood regula-
tions. The only way for [Breunich] to comply with both of these regulations
is to increase the height of the structure by elevating the lowest horizontal
point of the home an additional eight feet. . . . The record shows that the
usable space of the sea cottage is not increasing, but the existing structure
is simply moving upward and three feet north to meet flood requirements.
. . . In addition, the livable space within the sea cottage is not changed as
a result of the variance.’’ (Citations omitted.)
16
At that meeting, a member of the zoning board observed that Breunich’s
situation was ‘‘differen[t]’’ because it involved an accessory building rather
than a ‘‘main house,’’ which was subject to different regulations. While they
expressed some uncertainty, the members of the zoning board opined that
there are ‘‘a few,’’ but ‘‘not many,’’ such structures in Stamford.