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

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KARL MAYER-WITTMANN, EXECUTOR (ESTATE OF
GERDA MAYER-WITTMANN) v. ZONING BOARD
OF APPEALS OF THE CITY OF
STAMFORD ET AL.
(SC 19972)
Robinson, C. J., and D’Auria, Mullins, Kahn, Ecker and Vertefeuille, Js.*
Syllabus
Pursuant to the Stamford Zoning Regulations (article IV, § 10 [C]), when a
legally nonconforming building has been damaged by a flood or other
calamity, the building ‘‘may be reconstructed and used as before’’ if
reconstruction is commenced within twelve months of the calamity.
The plaintiff appealed from the judgment of the trial court, which dismissed
his appeal from the decision of the defendant zoning board of appeals
granting the application of the defendant property owner, B, for vari-
ances in connection with the reconstruction of a cottage on his property
after the cottage was severely damaged by a hurricane. The plaintiff
owned real property adjacent to B’s beachfront property. The cottage
was nonconforming under the Stamford Zoning Regulations in several
respects, including its location in relation to various setback require-
ments, its height of eighteen feet, ten inches, and its elevation of 8.7
feet. Pursuant to the zoning regulations, the maximum height for an
accessory structure such as the cottage is fifteen feet and the minimum
elevation standard for such a structure is sixteen feet, as its location
makes it subject to certain zoning regulations applicable to flood prone
areas. Nevertheless, because the cottage had been built before the zoning
regulations at issue were adopted, it constituted a legally nonconforming
structure. Following the hurricane, the cost to repair the cottage
exceeded 50 percent of its value, and, in order for it to be reconstructed,
the zoning board required that B conform the cottage to certain regula-
tions governing flood prone areas, including the minimum elevation
requirement. B applied for variances from the building height and set-
back requirements of the regulations because it would have been impos-
sible for him to conform both to the fifteen foot maximum height allowed
for the cottage and to the minimum flood elevation of sixteen feet, and
because restoration of the cottage required that it be moved three feet
north in order to be constructed on soils that could support the minimum
flood elevation. The zoning board of appeals ultimately approved B’s
application for the variances, and the plaintiff appealed to the trial court.
The trial court dismissed the plaintiff’s appeal, concluding that the record
supported the zoning board’s determinations that the zoning regulations
applicable to flood prone areas imposed a hardship on B that justified
the granting of the variances and that the variances were the minimal
relief required to alleviate the hardship. The plaintiff, on the granting
of certification, appealed. Held:
1. The plaintiff could not prevail on his claim that B’s failure to begin
reconstruction of the cottage within twelve months of the hurricane
caused its legally nonconforming status to be terminated under article
IV, § 10 (C), of the zoning regulations: when, as in the present case, a
legally nonconforming building subject to zoning regulations applicable
to flood prone areas is damaged and the cost of repairs exceeds 50
percent of the value of the building, the minimum flood elevation require-
ment applies to the repair of the building, notwithstanding the fact that
the building previously had a legally nonconforming status with respect
to that requirement, and notwithstanding article IV, § 10 (C), which
authorizes the reconstruction ‘‘as before’’ of buildings damaged in a
calamity within twelve months of the calamity; accordingly, article IV,
§ 10 (C), did not apply to the cottage because it would have been impossi-
ble for B to reconstruct the cottage ‘‘as before’’ without either conform-
ing to the minimum elevation requirement or seeking a variance from
that requirement, as the purpose of the prohibition of the reconstruction
of a building that is nonconforming with the minimum flood elevation
requirement to its previous state if the cost of the repairs exceeds 50
percent of the value of the building was not to deprive the building
entirely of its legally nonconforming status but to ensure the maximum
possible compliance with the regulations applicable to flood prone areas;
moreover, the fact that the building cannot be reconstructed without
either complying with the minimum flood elevation requirement or
obtaining a variance from that requirement or obtaining a variance from
the height restriction did not mean that the reconstructed building must
comply with all other regulations with which it was previously noncon-
forming, and, accordingly, the cottage retained its status as a legally
nonconforming accessory structure with respect to the setback and
building height requirements in the regulations.
2. The trial court correctly determined that the zoning board of appeals
properly granted B’s application for variances from the setback require-
ments and the height restrictions in the regulations, the zoning board
having reasonably found that B established the existence of an unusual
hardship warranting approval of his application because strict enforce-
ment of the regulations would have deprived him of his constitutionally
protected right to continue using the cottage, an existing, legally noncon-
forming accessory structure; moreover, this court rejected the plaintiff’s
claim that, when an applicant seeks a variance that will have the effect
of reducing a nonconformity of an existing, legally nonconforming build-
ing, the variance may not be granted unless the applicant reduces all
of the building’s nonconformities to the maximum extent possible, as
any reduction in nonconformity presumably could only benefit the zon-
ing scheme.
(Two justices concurring separately in one opinion)
Argued January 15—officially released November 5, 2019
Procedural History
Appeal from the decision of the named defendant
granting the application for variances filed by the defen-
dant Paul E. Breunich, brought to the Superior Court
in the judicial district of Stamford-Norwalk and tried to
the court, Hon. Edward R. Karazin, judge trial referee,
who, exercising the powers of the Superior Court, ren-
dered judgment dismissing the appeal, from which the
plaintiff, on the granting of certification, appealed.
Affirmed.
Scott T. Garosshen, with whom were Brendon P.
Levesque and, on the brief, William I. Haslun II, for
the appellant (plaintiff).
James V. Minor, special corporation counsel, with
whom, on the brief, was Kathryn Emmett, director of
legal affairs, for the appellee (named defendant).
Peter M. Nolin, with whom were Jacqueline O. Kauf-
man and, on the brief, Timothy A. Smith, for the appel-
lee (defendant Paul E. Breunich).
Opinion
VERTEFEUILLE, J. The issue that we must decide
in this appeal is whether the named defendant, the
Zoning Board of Appeals of the City of Stamford (zoning
board), properly granted the application of the defen-
dant Paul E. Breunich for variances to reconstruct a
legally nonconforming accessory structure on his prop-
erty after it was severely damaged by a hurricane. Breu-
nich sought variances from various setback require-
ments and height restrictions of the Stamford zoning
regulations on the ground that, as applied to his prop-
erty, their strict enforcement would impose an unusual
hardship because he could not comply both with those
regulations and with the regulations applicable to flood
prone areas, which required him to elevate the struc-
ture. The Planning Board of the City of Stamford (plan-
ning board) unanimously recommended approval of the
application, and, after a hearing, the zoning board unani-
mously approved it. The plaintiff, Karl Mayer-Wittmann,
executor of the estate of Gerda Mayer-Wittmann, who
owns property adjacent to Breunich’s property,
appealed from the decision of the zoning board to the
trial court, which, after a trial, dismissed the appeal.
This appeal followed.1 We affirm the judgment of the
trial court.
The record reveals the following facts that were
found by the trial court or that are undisputed. Breunich
owns a 0.96 acre beachfront property located at 106
Carter Drive in Stamford. The property, which includes
three dwelling structures with a total of five dwelling
units, two sheds and a garage, is located within the R-
10 single family district, low density zone. Breunich’s
property is nonconforming to the Zoning Regulations
of the city of Stamford (regulations)2 but, because the
property’s structures, including the structure the parties
refer to as the ‘‘sea cottage,’’ were built before the
zoning regulations were adopted in 1951, they are
legally authorized nonconforming structures under the
regulations. See Stamford Zoning Regs., art. IV, § 10
(A) (2015); see also General Statutes § 8-2 (a)3 (zoning
‘‘regulations shall not prohibit the continuance of any
nonconforming use, building or structure existing at
the time of the adoption of such regulations’’). The sea
cottage, the building at issue in the present case, is an
accessory structure containing a single dwelling unit
that is nonconforming in several respects. Specifically,
the sea cottage is located twenty-three feet from the
rear yard property line, in violation of the thirty foot
minimum required by article III, § 4 (AA) (2.4) (e), of
the regulations, and it is located four feet, six inches
from the side yard property line, in violation of the ten
foot minimum required by article III, § 4 (AA) (2.4) (e).
In addition, the lowest horizontal structural member of
the sea cottage has an elevation of 8.7 feet, although
the minimum elevation standard for the structure is
sixteen feet under the zoning regulations applicable to
flood prone areas.4 Finally, the sea cottage has a height
of eighteen feet, ten inches, whereas article III, § 6 (D),
of the regulations provides that detached accessory
structures may not exceed fifteen feet in height.
The sea cottage was severely damaged by Hurricane
Sandy in late October, 2012, and Breunich wishes to
rebuild it. Because the cost of repairs exceeds 50 per-
cent of the sea cottage’s value, however, the zoning
board and Breunich agree that the sea cottage must
conform to certain current regulations governing flood
prone areas, including the minimum elevation require-
ment, notwithstanding the fact that the sea cottage is
a legally nonconforming structure. See Stamford Zoning
Regs., art. III, § 7.1 (B) (43) (2015) (for purposes of
zoning regulations governing flood prone areas, ‘‘[s]ub-
stantial [d]amage’’ is defined as ‘‘damage . . . sus-
tained by a structure, whereby the cost of restoring the
structure to its pre-damaged condition would equal or
exceed 50 percent of the market value of the structure
before the damage occurred’’); id., art. III, § 7.1 (B)
(44) (defining ‘‘[s]ubstantial [i]mprovement’’ to include
repairs ‘‘the cumulative cost of which equals or exceeds
[50] percent . . . of the market value’’ of structure);
id., art. III, § 7.1 (D) (1) (requiring substantial improve-
ments to comply with certain regulations governing
flood prone areas); id. (requiring all substantial
improvements within special flood hazard area to have
lowest floor elevated to minimum elevation standard).5
As we indicated, under the regulations applicable to
flood prone areas, the minimum flood elevation require-
ment for the lowest horizontal structural member of
the sea cottage is sixteen feet above the base flood
elevation, whereas the maximum height allowed in the
R-10 zone for accessory structures is fifteen feet. See id.,
art. III, §§ 6 (D) and 7.1. Because the lowest horizontal
structural member of the sea cottage, which is at ground
level, is currently 8.7 feet above base flood elevation,
elevating the sea cottage by 7.3 feet to satisfy the mini-
mum flood elevation requirement would leave only 7.7
feet of buildable vertical space if the structure also were
required to conform to the building height requirement.
Accordingly, it would be impossible for the sea cottage
to conform to both requirements. Moreover, because
the soils on which the sea cottage is currently standing
cannot support the foundation that would be required to
elevate the sea cottage to the minimum flood elevation,
restoration of the sea cottage requires moving it three
feet to the north. Accordingly, Breunich applied for
variances from the building height and setback require-
ments of the regulations.
The planning board unanimously recommended that
the zoning board approve Breunich’s application for
variances. After a hearing at which both Breunich and
a representative of the plaintiff appeared, the zoning
board granted Breunich’s application subject to certain
restrictions that are not at issue in this appeal. The
plaintiff then appealed to the trial court, claiming, inter
alia, that the zoning board improperly granted the vari-
ances because Breunich had not established that, with-
out them, he would be deprived of the reasonable use
of his property, as is required to establish a hardship,
or that the variances were the minimum relief neces-
sary. In addition, the plaintiff claimed that any hardship
was ‘‘personal and self-inflicted’’ because Breunich
failed to rebuild the sea cottage within twelve months of
the hurricane. Specifically, he contended that Breunich
could have rebuilt the sea cottage pursuant to article
IV, § 10 (C), of the regulations,6 which authorizes the
owner of a nonconforming building that has been dam-
aged by flood or other calamity to reconstruct and use
the building as before within twelve months of the dam-
age, and that his failure to do so terminated the legal
nonconforming status of the sea cottage on October
29, 2013, one year after it was damaged in the hurricane.
The trial court concluded that the zoning board’s
determinations that the regulations applicable to flood
prone areas imposed a hardship on Breunich that justi-
fied granting the variances and that the variances were
the minimal relief required to alleviate the hardship
were supported by the record. The court also agreed
with Breunich’s claim that the zoning board could have
granted the variances on the ground that the variances
reduced the sea cottage’s nonconformities. Accord-
ingly, the court dismissed the plaintiff’s appeal.
On appeal to this court, the plaintiff renews his claims
that the zoning board improperly granted the variances
because Breunich had not established a hardship by
showing that enforcement of the regulations would
deprive him of all reasonable use of his property or
render his lot completely unusable, and the variances
were not the minimal relief required to alleviate any
hardship. In addition, the plaintiff again contends that
Breunich is barred by article IV, § 10 (C), of the regula-
tions from rebuilding the sea cottage because its legally
nonconforming status has terminated. We conclude that
the sea cottage retains its status as a legally noncon-
forming accessory structure and that the zoning board
properly granted the variances on the ground that the
enforcement of the regulations would create a hardship.
I
Because the question of whether the sea cottage
retains its status as a legally nonconforming structure
has bearing on the question of whether the zoning board
properly granted the variances, we first address the
plaintiff’s contention that that status terminated one
year after the sea cottage was damaged by the hurricane
pursuant to article IV, § 10 (C), of the regulations. The
defendants contend that that provision does not apply
to the sea cottage because the ‘‘fundamental predicate’’
that it was possible, as a matter of law, for the sea
cottage to be ‘‘reconstructed and used as before’’ it was
damaged; see Stamford Zoning Regs., art. IV, § 10 (C)
(2015); without any need to apply for variances, has
not been met.7 We agree with the defendants.
‘‘Because the interpretation of the regulations pre-
sents a question of law, our review is plenary. . . .
Additionally, zoning regulations are local legislative
enactments . . . and, therefore, their interpretation is
governed by the same principles that apply to the con-
struction of statutes. . . . Moreover, regulations must
be interpreted in accordance with the principle that a
reasonable and rational result was intended . . . . The
process of statutory interpretation involves the determi-
nation of the meaning of the statutory language [or the
relevant zoning regulation] as applied to the facts of
the case, including the question of whether the language
does so apply.’’ (Citations omitted; internal quotation
marks omitted.) Graff v. Zoning Board of Appeals, 277
Conn. 645, 652, 894 A.2d 285 (2006).
We begin our analysis with the language of article
IV, § 10 (C), of the Stamford Zoning Regulations: ‘‘Any
non-conforming building . . . which has been or may
be damaged by . . . flood . . . [or] act of God . . .
may be reconstructed and used as before, if reconstruc-
tion is started [within] twelve . . . months of such
calamity . . . .’’ Thus, the regulation provides that,
when a building has been damaged in a ‘‘calamity’’ and
the owner commences reconstruction within twelve
months, the building retains its nonconforming status,
and the owner is not required to conform the recon-
structed building to current regulations or to seek vari-
ances from those regulations.
In the present case, the defendants contend that Breu-
nich could not have reconstructed the sea cottage and
used it ‘‘as before’’ because the cost of the repairs to
the sea cottage exceeds 50 percent of its value and,
therefore, the sea cottage is required to conform to the
minimum flood elevation requirement of the regulations
applicable to flood prone areas.8 In other words, the
defendants appear to contend that, notwithstanding
article IV, § 10 (C), of the regulations, which authorizes
landowners to reconstruct a damaged nonconforming
building ‘‘as before’’ within twelve months of the calam-
ity in which it was damaged, because the cost of repairs
exceeds 50 percent of the sea cottage’s value, the sea
cottage is now categorically required to conform to
the minimum flood elevation requirement. The plaintiff
contends that, to the contrary, nothing in the regulations
applicable to flood prone areas indicates that they are
‘‘preeminent among all the zoning regulations . . . .’’
Accordingly, the plaintiff contends, Breunich could
have reconstructed the sea cottage ‘‘as before’’ pursuant
to article IV, § 10 (C), of the regulations, if he had
commenced construction within twelve months of the
hurricane, and his failure to do so terminated the legally
nonconforming status of the sea cottage in its entirety.
With respect to the defendants’ contention that an
owner of a damaged, legally nonconforming building
must comply with the minimum flood elevation require-
ment when the cost of reconstructing the building
exceeds 50 percent of the building’s value, we agree
that, unlike other regulations, such as those governing
building height and setbacks, the minimum flood eleva-
tion requirement applies to the reconstruction of the
damaged building under these circumstances. In other
words, the building’s legally nonconforming status with
respect to that requirement was lost because the cost
of repairs exceeds 50 percent of the building’s value.
Indeed, the requirement that a damaged building must
be repaired in conformance with the minimum elevation
requirement if the cost of repairs exceeds 50 percent
of the value of the building can apply only to buildings
that were in existence before the regulations applicable
to flood prone areas were adopted, because buildings
that were built and damaged after their adoption would
already conform to the regulations, unless the owner
obtained a variance.
In this regard, it is important to recognize that, unlike
regulations governing setbacks, building height and
property use, which are designed to address concerns
that are largely aesthetic in nature, the minimum flood
elevation requirements are intended to ‘‘promote the
health, safety and welfare of the general public, [to]
limit public and private property losses and diminish
expenditures of public money for costly flood protec-
tion projects and relief efforts, and [to] minimize pro-
longed governmental and business interruptions.’’
Stamford Zoning Regs., art. III, § 7.1 (A) (2015).
The authors of a white paper published by the Center
for Energy & Environmental Law at the University of
Connecticut School of Law aptly describe the scope of
the problems that the zoning regulations applicable to
flood prone areas were designed to address and the
crucial role that such regulations play. The white paper
states that ‘‘[c]oastal flooding represents a tremendous
threat to Connecticut infrastructure. The Federal Emer-
gency Management Administration . . . estimates that
a ‘100 year flood’ in the four Connecticut [s]horeline
counties could cause a staggering $3,571,200,000 in
damage to residential structures alone. To further exac-
erbate this problem, climate scientists estimate that by
2100 the inundation levels of this 100 year flood will
revisit the Connecticut coast once every seventeen
years if greenhouse gas emissions continue at cur-
rent rates.
‘‘The National Flood Insurance Program . . . offsets
some of the financial risk that these floods pose to
homeowners. This program, administered by the Fed-
eral Emergency Management Agency . . . makes fed-
eral flood insurance available to communities that
impose a minimum standard of floodplain management
regulation, generally imposed through zoning ordi-
nances. Every Connecticut municipality participates in
the [program].
‘‘Under the [program], participating municipalities
must create land use ordinances that require habit-
able portions of new or substantially improved resi-
dential structures within the Special Flood Hazard
Area to be elevated to or above the Base Flood Eleva-
tion . . . shown on Flood Insurance Rate Maps . . . .
This elevation requirement is intended to minimize
flood damage by keeping buildings above anticipated
flood levels.’’ (Emphasis added; footnotes omitted.) W.
Rath et al., ‘‘Height Restrictions on Elevated Residen-
tial Buildings in Connecticut Coastal Floodplains,’’
Municipal Resilience Planning Assistance Project: Law
& Policy White Paper Series (2018) p. 2, available at
https://circa.uconn.edu/wp-content/uploads/sites/1618/
2018/03/Height-Restrictions-on-Elevated-Buildings.pdf
(last visited October 30, 2019). At oral argument before
this court, counsel for the zoning board represented that
the failure of a municipality to create such ordinances
or to enforce them in a uniform manner could render not
only the particular nonconforming property ineligible
to participate in the National Flood Insurance Program,
but also could render properties located throughout the
entire municipality ineligible for the program. Thus,
municipalities have a compelling interest in ensuring
uniform compliance with such regulations.
We conclude, therefore, that, when a legally noncon-
forming building subject to the regulations applicable
to flood prone areas is damaged and the cost of repairs
exceeds 50 percent of the value of the building, the
minimum flood elevation requirement applies to the
repair of the building, notwithstanding the fact that the
building previously had a legally nonconforming status
with respect to that requirement, and notwithstanding
article IV, § 10 (C), of the regulations, which authorizes
the reconstruction ‘‘as before’’ of buildings damaged in
a ‘‘calamity’’ within twelve months of the calamity.
Contrary to Breunich’s apparent contention, how-
ever, conformance with the minimum flood elevation
requirement is not categorically required under these
circumstances. Rather, article III, § 7.1 (F), of the regu-
lations, expressly authorizes the zoning board to issue
variances from the regulations applicable to flood zone
areas. Thus, the plaintiff is correct that Breunich poten-
tially could have restored the sea cottage to its former
state. He could have done so, however, only if he
obtained a variance from the minimum flood eleva-
tion requirement.9
As we have indicated, the purpose of article IV, § 10
(C), of the regulations is to allow landowners to rebuild
legally nonconforming buildings that have been dam-
aged in a calamity without the need either to conform
the building to the regulations or to seek a variance
authorizing the nonconformity. We conclude, therefore,
that article IV, § 10 (C), of the regulations does not
apply to the sea cottage because it would have been
impossible for Breunich to reconstruct the building ‘‘as
before’’ without either conforming to the minimum ele-
vation requirement or seeking a variance from the regu-
lation. Indeed, the relatively short time frame refer-
enced in the regulation clearly contemplates the
situation in which the landowner will not be required
either to completely redesign the building to conform
to new regulations or to go through the lengthy adminis-
trative process for obtaining a variance from those regu-
lations in order to secure a building permit.10 See W.
Rath et al., supra, p. 3 (‘‘the variance process is time
consuming and can be expensive as it requires an indi-
vidual analysis, a detailed application, and a formal
public hearing’’).
The plaintiff suggests, however, that the continued
existence of a legally nonconforming structure and the
need for variances are mutually exclusive concepts. In
other words, if variances are required to authorize the
construction or repair of a building to its former state,
the building cannot be legally nonconforming. Accord-
ingly, he contends that, if Breunich was required either
to conform the sea cottage to the minimum elevation
requirement of the regulations applicable to flood prone
areas or to seek a variance from that requirement, it
necessarily follows that the sea cottage entirely lost its
legally nonconforming status.
We disagree. As we explain in part II of this opinion, a
regulation that entirely deprived a building of its legally
nonconforming status might be confiscatory as applied
and, as such, of questionable constitutionality.11 It is
well settled that ‘‘[t]his court has a duty to construe
statutes, whenever possible, to avoid constitutional
infirmities . . . .’’ (Internal quotation marks omitted.)
Honulik v. Greenwich, 293 Conn. 641, 647, 980 A.2d
845 (2009); see also Graff v. Zoning Board of Appeals,
supra, 277 Conn. 652 (interpretation of zoning regula-
tions ‘‘is governed by the same principles that apply to
the construction of statutes’’ [internal quotation marks
omitted]). We conclude, therefore, that the purpose of
the regulations prohibiting the reconstruction of a build-
ing that is nonconforming with the minimum flood ele-
vation requirement to its previous state if the cost of
repairs exceeds 50 percent of the value of the building
was not to deprive legally nonconforming buildings
entirely of their legally nonconforming status but to
ensure the maximum possible compliance with the reg-
ulations applicable to flood prone areas. In other words,
if a building is legally nonconforming with regulations
such as setback requirements, and the building is dam-
aged by flood or calamity, the fact that the building
cannot be reconstructed without either complying with
the minimum flood elevation requirement or obtaining
a variance from that requirement or by obtaining a
variance from the height restriction does not mean that
the reconstructed building must also comply with all
other regulations with which it was previously noncon-
forming. Accordingly, we conclude that the sea cottage
retained its status as a legally nonconforming accessory
structure with respect to the setback and building
height requirements of the regulations.
II
Having concluded that the legally nonconforming sta-
tus of the sea cottage was not terminated by article
IV, § 10 (C), of the regulations, we next address the
plaintiff’s claims that the zoning board improperly
granted Breunich’s application for variances because
he did not establish a hardship and that, even if he did,
the variances were not the minimum relief required to
alleviate the hardship. We disagree.
‘‘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 arbi-
trary, 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 [plaintiff].’’ (Citations omitted; internal quotation
marks omitted.) Bloom v. Zoning Board of Appeals,
233 Conn. 198, 205–206, 658 A.2d 559 (1995); see also
Richardson v. Zoning Commission, 107 Conn. App. 36,
42, 944 A.2d 360 (2008) (‘‘[t]rial courts defer to zoning
boards and should not disturb their decisions so long
as honest judgment has been reasonably and fairly exer-
cised after a full hearing’’ [internal quotation marks
omitted]). ‘‘Because the plaintiffs’ appeal to the trial
court is based solely on the record, the scope of the
trial court’s review of the board’s decision and the scope
of our review of that decision are the same.’’ (Internal
quotation marks omitted.) E & F Associates, LLC v.
Zoning Board of Appeals, 320 Conn. 9, 14, 127 A.3d
986 (2015).
‘‘A variance constitutes permission to act in a manner
that is otherwise prohibited under the zoning law of
the town. . . . It is well established, however, that the
granting of a variance must be reserved for unusual
or exceptional circumstances. . . . An applicant for a
variance must show that, because of some peculiar
characteristic of his 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.’’ (Internal
quotation marks omitted.) Id., 15. Zoning boards of
appeals are authorized to grant variances in cases in
which enforcement of a regulation would cause unusual
hardship in order to ‘‘[furnish] elasticity in the applica-
tion of regulatory measures so that they do not operate
in an arbitrary or confiscatory and, consequently,
unconstitutional . . . manner.’’ Florentine v. Darien,
142 Conn. 415, 425, 115 A.2d 328 (1955).
In the present case, the plaintiff relies on our cases
holding that ‘‘[d]isadvantage in property value or
income, or both, to a single owner of property, resulting
from application of zoning restrictions, does not, ordi-
narily, warrant relaxation in his favor on the ground of
. . . unnecessary hardship. . . . Financial considera-
tions are relevant only in those exceptional situations
where a board could reasonably find that the applica-
tion of the regulations to the property greatly decreases
or practically destroys its value for any of the uses
to which it could reasonably 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. . . .
Zoning regulations have such an effect in the extreme
situation where the application of the regulations ren-
ders the property in question practically worthless.’’
(Citation omitted; emphasis added; internal quotation
marks omitted.) Vine v. Zoning Board of Appeals, 281
Conn. 553, 561–62, 916 A.2d 5 (2007); see also E & F
Associates, LLC v. Zoning Board of Appeals, supra, 320
Conn. 20 (‘‘when a property would have economic value
even if the zoning regulations were strictly enforced,
the fact that a peculiar characteristic of the property
would make compliance with the zoning regulations
exceptionally difficult if the property were put to a more
valuable or desirable use does not constitute either an
‘exceptional difficulty’ or an unusual hardship’’). The
plaintiff contends that, if Breunich’s application for vari-
ances is denied and he is unable to rebuild the sea
cottage, he will still be able to use the four other dwell-
ing units and various accessory structures that are
located on the property, and, therefore, the strict
enforcement of the setback and building height require-
ments of the zoning regulations would impose no
unusual hardship.
In addressing the plaintiff’s claim, however, it is
important to keep in mind the legal principle underlying
the general rule that enforcement of a regulation does
not create an unusual hardship warranting a variance if
the landowner retains a reasonable use of the property.
That underlying principle is that land use regulation is
constitutionally permissible as long as it does not
amount to practical confiscation or inverse condemna-
tion of a property, and a confiscation or inverse con-
demnation ordinarily does not occur unless the land-
owner is deprived of any reasonable use of the property.
See Rural Water Co. v. Zoning Board of Appeals, 287
Conn. 282, 298, 947 A.2d 944 (2008) (‘‘ ‘[a]n ordinance
which permanently restricts the use of land for any
reasonable purpose . . . goes beyond permissible reg-
ulation and amounts to practical confiscation’ ’’); id.,
299 (‘‘an inverse condemnation occurs when . . .
application of the regulation amounted to a practical
confiscation because the property cannot be used for
any reasonable purpose’’). Thus, the tests for unusual
hardship and inverse condemnation are one and the
same. See 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 reason-
able purpose’’).12
Just as a landowner has a constitutionally protected
right to use his property for some reasonable purpose,
however; see Rural Water Co. v. Zoning Board of
Appeals, supra, 287 Conn. 299; a landowner has a consti-
tutionally protected property right to the continued
use of an existing, legally nonconforming building. See
Petruzzi v. Zoning Board of Appeals, 176 Conn. 479,
484, 408 A.2d 243 (1979) (‘‘ ‘[a] lawfully established non-
conforming use is a vested right and is entitled to consti-
tutional protection’ ’’). Accordingly, the deprivation of
that right by regulation would also constitute an inverse
condemnation, notwithstanding the fact that the land-
owner could still use the property for some other per-
mitted or legally nonconforming purpose.13
The decision of the Commonwealth Court of Pennsyl-
vania in Jenkintown Towing Service v. Zoning Hearing
Board, 67 Pa. Commw. 183, 446 A.2d 716 (1982), is
instructive on this issue. The court in that case noted
that, although ‘‘hardship clearly consists of the virtual
unusability of the land in its entirety for any permitted
use’’ if the regulations were strictly enforced and the
applicant has sought a variance in order to bring into
being a nonconforming use or building, in cases involv-
ing existing legally nonconforming uses or structures,
‘‘the land . . . already has utility.’’ (Emphasis added.)
Id., 192. The court then observed that, ‘‘because any
zoning ordinance provision is subject to the grant of a
variance in a proper case . . . such restrictions must
bow if adhering to them would threaten the continued
existence of the [preexisting] use [or structure] itself.’’
(Emphasis added.) Id., 193. As we have explained, this
is because such regulations would amount to an inverse
condemnation of the landowner’s vested property right
in the existing, legally nonconforming use or structure,
even if the landowner could use the property for some
other reasonable purpose.
None of the cases that the plaintiff cites in support
of his claim that Breunich was required to establish
that he could not use his property for any reasonable
purpose if the regulations were strictly enforced
involves an application for a variance in order to allow
the continuation of an existing, legally nonconforming
use or structure. Rather, in each case that he cites in
which a variance was found not to be warranted, the
applicant sought either to construct a new nonconform-
ing structure or to expand an existing nonconforming
structure. See E & F Associates, LLC v. Zoning Board
of Appeals, supra, 320 Conn. 12 (applicant sought to
expand nonconforming building by adding second
story); Moon v. Zoning Board of Appeals, 291 Conn.
16, 18, 966 A.2d 722 (2009) (applicants sought to add
additional living space to second story of nonconform-
ing building); Francini v. Zoning Board of Appeals, 228
Conn. 785, 787, 639 A.2d 519 (1994) (applicant sought to
build residence on nonconforming lot); Hyatt v. Zoning
Board of Appeals, 163 Conn. 379, 381, 311 A.2d 77 (1972)
(applicant sought to build second nonconforming build-
ing); Verrillo v. Zoning Board of Appeals, 155 Conn.
App. 657, 664, 111 A.3d 473 (2015) (applicant sought to
expand existing nonconforming building); Horace v.
Zoning Board of Appeals, 85 Conn. App. 162, 164, 855
A.2d 1044 (2004) (applicant sought to expand existing
nonconforming use); Munroe v. Zoning Board of
Appeals, 75 Conn. App. 796, 798, 818 A.2d 72 (2003)
(applicant sought to add second story to existing non-
conforming building). In the present case, although con-
forming the sea cottage to the minimum flood elevation
requirement will increase its nonconformity with the
regulations governing building height, in contrast to
these cases, Breunich is not seeking to ‘‘expand’’ the
nonconforming building for his own personal benefit
or convenience but is seeking the variances in order to
comply with the minimum flood elevation requirement
of the regulations applicable to flood prone areas, which
is intended to reduce the safety and financial hazards
that nonconforming structures present both to land-
owners and to the general public in the event of a flood.
As we explained, the sea cottage is required to conform
to that requirement even though the building previously
was legally nonconforming. In the absence of either a
variance from the building height regulations or the
minimum flood elevation requirement, the sea cottage
cannot be rebuilt. Thus, the underlying purpose of the
variances is not to ‘‘expand’’ the nonconformities of
the sea cottage but merely to allow its continued use.
Accordingly, we find the cases that the plaintiff cites
to be inapposite.
On the basis of the foregoing, we conclude that the
zoning board reasonably found that Breunich estab-
lished the existence of an unusual hardship warranting
approval of his application for variances because the
strict enforcement of the regulations would have
deprived him of his constitutionally protected right to
continue using the sea cottage, which is an existing,
legally nonconforming accessory structure. As we
explained, without variances in some form, Breunich
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. Such a result is precisely
what the zoning board’s authority to grant variances
was designed to circumvent. See Florentine v. Darien,
supra, 142 Conn. 425 (power to grant variances is
intended to ‘‘[furnish] elasticity in the application of
regulatory measures so that they do not operate in an
arbitrary or confiscatory and, consequently unconstitu-
tional . . . manner’’).
To the extent that the plaintiff contends that it was
improper for the zoning board to have granted the vari-
ances from the regulations governing building height
and setbacks because those variances would have been
unnecessary if Breunich had sought a variance from
the minimum flood elevation requirement, we disagree.
First, considered in light of the compelling public inter-
ests that the minimum flood elevation requirement is
intended to protect, nothing in the record indicates that
conforming the sea cottage to that requirement would
entail an unusual hardship, thereby warranting a vari-
ance.14 Second, the plaintiff has cited no authority for
the proposition that a zoning board of appeals cannot
grant a variance from one regulation if granting a vari-
ance from another regulation would make the variance
from the first regulation unnecessary.
The plaintiff also claims that, to establish an unusual
hardship, Breunich was required to show that the hard-
ship arose from some unique or peculiar characteristic
of his property. See, e.g., Moon v. Zoning Board of
Appeals, supra, 291 Conn. 24 (‘‘[a]n applicant for a vari-
ance must show that, because of some peculiar charac-
teristic of his 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’’ [emphasis added;
internal quotation marks omitted]); Francini v. Zoning
Board of Appeals, supra, 228 Conn. 791 (‘‘[i]t is well
settled that the hardship must be different in kind from
that generally affecting properties in the same zoning
district’’ [internal quotation marks omitted]); Plumb v.
Board of Zoning Appeals, 141 Conn. 595, 600, 108 A.2d
899 (1954) (‘‘[t]he hardship must be one different in
kind from that imposed upon properties in general by
the ordinance’’). The plaintiff contends that the sea
cottage has no such unique or peculiar characteristic,
but, to the contrary, its characteristics making full com-
pliance with all zoning regulations difficult are shared
by ‘‘numerous coastal properties in Stamford,’’ many
of which were also damaged by Hurricane Sandy.15 Even
if we were to assume, however, that there is nothing
unique or peculiar about Breunich’s property that ren-
ders the strict application of the regulations unusually
harsh, and that the problems that he faces in recon-
structing the sea cottage are shared by many other
owners of damaged buildings in flood prone areas, it
would then follow that the strict enforcement of the
regulations would also threaten to confiscate the other
damaged buildings and structures that, before being
damaged, were legally nonconforming with the mini-
mum flood elevation requirements.16 The plaintiff has
cited no authority for the proposition that a variance
from a regulation may not be granted to a particular
landowner if the regulation has a confiscatory effect
not only on his property, but also on other existing,
legally nonconforming buildings and structures,
because the hardship does not arise from a peculiar or
unique characteristic of the landowner’s property.17 An
unconstitutional confiscation of property by regulation
does not become constitutional merely because the reg-
ulation affects other properties in the same way.
Accordingly, we reject this claim.
Finally, we address the plaintiff’s claim that the zon-
ing board improperly granted Breunich’s application for
variances because the variances were not the minimum
relief required to alleviate the hardship. See, e.g., L &
G Associates, Inc. v. Zoning Board of Appeals, 40 Conn.
App. 784, 788, 673 A.2d 1146 (1996) (‘‘[b]ecause a vari-
ance affords relief from the literal enforcement of a
zoning ordinance, it will be strictly construed to limit
relief to the minimum variance which is sufficient to
relieve the hardship’’ [internal quotation marks omit-
ted]). The plaintiff contends that the setback variances
that Breunich requested were not the minimum neces-
sary to alleviate any hardship because he could conform
the sea cottage to all of the setback requirements by
moving it west five and one-half feet and north ten feet.
In support of this claim, the plaintiff cites Green Falls
Associates, LLC v. Zoning Board of Appeals, 138 Conn.
App. 481, 484, 53 A.3d 273 (2012) (applicant sought
to build new single-family residence on lot), Jaser v.
Zoning Board of Appeals, 43 Conn. App. 545, 546, 684
A.2d 735 (1996) (applicants sought to construct new
single-family residence on lot), and L & G Associates,
Inc. v. Zoning Board of Appeals, supra, 786 (applicant
sought to construct new office building on property).
All of these cases, however, involved applications for
variances to build new nonconforming buildings.18 As
we indicated, the sea cottage is an existing, legally
nonconforming building, and the setback variances that
Breunich sought and that the zoning board granted will
allow the building to be moved to a less nonconforming
location. See footnote 14 of this opinion. The plaintiff
has cited no authority that convincingly supports the
proposition that, when an applicant seeks a variance
that will have the effect of reducing a nonconformity
of an existing, legally nonconforming building, the vari-
ance may not be granted unless the applicant reduces
all of the building’s nonconformities to the maximum
extent possible. Indeed, it would make little sense to
bar landowners from seeking a variance to reduce a
nonconformity of an existing building unless they
reduced that conformity—as well as all other noncon-
formities—to the maximum extent possible.19 Presum-
ably, any reduction in nonconformity could only benefit
the zoning scheme. We therefore reject this claim.
For the foregoing reasons, we conclude that the trial
court correctly determined that the zoning board prop-
erly granted Breunich’s application for variances from
the regulations and, therefore, properly dismissed the
plaintiff’s appeal.
The judgment is affirmed.
In this opinion D’AURIA, MULLINS and KAHN, Js.,
concurred.
* This appeal originally was argued before a panel of this court consisting
of Chief Justice Robinson and Justices D’Auria, Mullins, Kahn and Ecker.
Thereafter, Justice Vertefeuille was added to the panel and has read the
briefs and appendices, and listened to a recording of oral argument prior
to participating in this decision.
1
The plaintiff appealed to the Appellate Court, and we transferred the
appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
2
The regulations have been amended since the events underlying the
present case. All references herein are to the regulations as adopted Novem-
ber 30, 1951, with subsequent amendments through December 31, 2015.
3
Although § 8-2 has been amended by the legislature several times since
the events underlying the present case; see, e.g., Public Acts 2017, No. 17-
155, § 2; those amendments have no bearing on the merits of this appeal.
In the interest of simplicity, we refer to the current revision of the statute.
4
The structure is within the VE and AE Flood Zones under Federal Emer-
gency Management Agency (FEMA) standards, which are incorporated into
the regulations. See Stamford Zoning Regs., art. III, § 7.1 (B) (2) (2015)
(defining base flood elevation); id., § 7.1 (B) (20) (referring to FEMA’s flood
insurance rate map, which delineates ‘‘special flood hazard areas’’); id., § 7.1
(C) (1) (§ 7.1 of regulations, governing flood prone areas, applies to ‘‘all
areas of special flood hazard’’ within city); id., § 7.1 (C) (2) (special flood
hazard areas are based on base flood elevation data developed by FEMA).
Under FEMA standards, the minimum elevation for structures in the VE
Flood Zone is fifteen feet. Article III, § 7.1 (B) (32) of the Stamford Zoning
Regulations defines ‘‘[m]inimum [e]levation [s]tandard’’ as the minimum
required by the FEMA standards plus one foot.
5
Breunich also makes a passing reference to article IV, § 10 (B), of the
Stamford Zoning Regulations, which provides that ‘‘[t]he total structural
repairs and alterations that may be made in a structure which is nonconform-
ing in use only shall not exceed [50] percent . . . of its replacement value
at the time of application for the first structural change, unless changed to
a conforming use.’’ The plaintiff also does not address this regulation at
any length but merely notes in a footnote in his reply brief that, assuming
that Breunich is correct that the regulation applies, he ‘‘did not request a
variance on the basis that his total repairs would exceed 50 percent of the
value of the cottage.’’ We address the effect of this regulation in footnote
13 of this opinion.
6
Article IV, § 10 (C), of the Stamford Zoning Regulations provides in
relevant part: ‘‘Any non-conforming building . . . which has been or may
be damaged by . . . flood . . . [or] act of God . . . may be reconstructed
and used as before, if reconstruction is started with[in] twelve . . . months
of such calamity . . . .’’
7
For purposes of this analysis, we assume, without deciding, that the
plaintiff is correct that, when article IV, § 10 (C), of the regulations applies
to a legally nonconforming structure that has been damaged by flood or
calamity, and the owner fails to start reconstruction within twelve months
of the calamity, the building loses its legally nonconforming status.
8
See Stamford Zoning Regs., art. III, § 7.1 (B) (43) (2015) (for purposes
of regulations governing flood prone areas, ‘‘[s]ubstantial [d]amage’’ is
defined as ‘‘damage . . . sustained by a structure, whereby the cost of
restoring the structure to its pre-damaged condition would equal or exceed
50 percent of the market value of the structure before the damage occurred’’);
id., art. III, § 7.1 (B) (44) (defining ‘‘[s]ubstantial [i]mprovement’’ to include
repairs ‘‘the cumulative cost of which equals or exceeds [50] percent . . . of
the market value’’ of structure); id., art. III, § 7.1 (D) (1) (requiring substantial
improvements to comply with certain regulations governing flood prone
areas); id. (requiring all substantial improvements within special flood haz-
ard area to have lowest floor elevated to minimum elevation standard).
9
Indeed, the plaintiff makes no claim to the contrary. In response to the
defendants’ argument that article IV, § 10 (C), of the regulations does not
apply to the sea cottage because the building was required to conform to
current regulations governing minimum flood elevation, the plaintiff states
that the defendants are ‘‘accurate as far as [they go]. It is true that [the
regulations governing] substantial improvements [in flood prone areas] . . .
apply where the work to be done exceeds 50 percent of the structure’s
value.’’ The plaintiff then contends that the defendants fail to recognize that
compliance with these regulations is not categorically required but may be
subject to a variance.
10
Indeed, to interpret article IV, §10 (C), of the regulations to apply to
situations in which it would be virtually impossible for a landowner to begin
repairs of a legally nonconforming building that was damaged in a calamity
within twelve months of the damage would be of questionable constitutional
validity because it would be confiscatory. See part II of this opinion.
11
But see footnote 13 of this opinion.
12
We do not suggest that establishing an inverse condemnation is the
only way to establish an unusual hardship. Our cases indicate that an unusual
hardship may also be established when the strict enforcement of a zoning
regulation to a particular property would contribute so little to the goals
that the regulation was intended to achieve that it would be arbitrary.
See Vine v. Zoning Board of Appeals, supra, 281 Conn. 561 (hardship is
established ‘‘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’’ [emphasis added; internal quotation
marks omitted]). It is clear, however, that an unusual hardship is established
if an inverse condemnation is established.
Although all members of this court agree that the trial court correctly
concluded that the variances were properly granted, there is disagreement
regarding the reasoning supporting that conclusion. Specifically, relying
heavily on treatises and cases from other jurisdictions, the concurrence
disagrees that the test for unusual hardship and the test for a regulatory
taking are the same, and contends that that is the case only when the
landowner claims that he will suffer a financial hardship if the zoning regula-
tion is strictly enforced. As we indicated, we would agree that a landowner
is not required to establish a financial loss rising to the level of a regulatory
taking in order to obtain a variance if the landowner can establish that the
enforcement of the zoning regulation would be arbitrary in the sense that
it would not contribute meaningfully to the goals that the regulation was
intended to achieve. That is not the case here, however. Increasing the
height of the sea cottage to 27.9 feet, which is 12.9 feet above the maximum
allowed height of fifteen feet, will block the views of neighboring properties,
which is precisely what the maximum height regulation was intended to
prevent. Moreover, if the concurrence were correct that the sea cottage
lost its legally nonconforming status because it was more than 50 percent
destroyed—which we conclude that it did not; see footnote 13 of this opinion;
Breunich would be required to seek variances from all of the regulations
with which the sea cottage was nonconforming before its destruction, not
just those regulations with which the sea cottage is now even more noncon-
forming. Thus, Breunich would be required to obtain a variance from article
III, § 4 (AA) (2.2), of the regulations, which permits only one single family
detached dwelling per lot, so that he could maintain three dwelling structures
with a total of five dwelling units on the property, as well as two sheds and
a garage. Such a variance would clearly increase the population density of
the zone, which is precisely what the regulation is intended to prevent.
To the extent that the concurrence suggests that there are considerations
other than financial loss that can give rise to an unusual hardship warranting
a variance, even when granting the variance would have a negative impact
on the goals of the zoning scheme, it is entirely unclear to us what those
considerations might be or why the concurrence believes that they justify
the granting of the variance in the present case. Moreover, the concurrence
has not cited any authority for the proposition that a property owner’s loss of
the right to use the property in a particular manner has ever been considered
anything other than a reduction in the value of the property—in other words,
a financial loss—for zoning purposes in this state.
13
Although the plaintiff makes no claim that Breunich is prohibited from
rebuilding the sea cottage pursuant to article IV, § 10 (B), of the Stamford
Zoning Regulations, which provides that ‘‘[t]he total structural repairs and
alterations that may be made in a structure which is nonconforming in use
only shall not exceed [50] percent . . . of its replacement value at the time
of application for the first structural change, unless changed to a conforming
use’’; see footnote 5 of this opinion; there is authority for the proposition
that such regulations are constitutional because the destruction of more
than 50 percent of the value of a nonconforming building or a building with
a nonconforming use can deprive the owner of his vested right to continue
using the property for that purpose. See State v. Hillman, 110 Conn. 92,
107, 147 A. 294 (1929) (regulation that prohibited reconstruction of noncon-
forming building when more than 50 percent of building is destroyed was
constitutional as applied). The court in Hillman observed that ‘‘[t]he police
power has its limitations in the extent of the taking or the diminution of
the value of property affected. When it reaches a certain magnitude, in
most if not all cases there must be an exercise of eminent domain and
compensation to sustain the act. So the question depends upon the particular
facts.’’ (Internal quotation marks omitted.) Id., 106; see also Bobandal Real-
ties, Inc. v. Worthington, 21 A.D. 2d 784, 785–86, 250 N.Y.S.2d 575
(1964) (‘‘Ordinances using 50 [percent] of value or assessed value as a
criterion in determining whether an owner shall be permitted to reconstruct
a partly destroyed nonconforming building have been held not unreasonable
on their face . . . . The question whether an ordinance using 50 [percent]
of [value] as a criterion is unreasonable and confiscatory should not be
decided in a vacuum, but only with relation to a specific case in which facts
have been presented to show that in that case the application of such
criterion would destroy so great a part of the value of the nonconforming
property that it would be unreasonable and confiscatory . . . .’’ [Citations
omitted; emphasis in original; internal quotation marks omitted.]), aff’d, 15
N.Y.2d 788, 205 N.E.2d 685, 257 N.Y.S.2d 588 (1965). We note that the court
in Hillman concluded that enforcing the regulation at issue in that case did
not have a confiscatory effect after noting that there was no evidence that
there would be a significant ‘‘diminution in value of the property . . . .’’
State v. Hillman, supra, 107. Presumably, this was because the defendant
landowner could construct a conforming building on the property. Contrary
to the concurrence’s suggestion, we do not conclude that Hillman did not
involve the casualty doctrine. See footnote 5 of the concurring opinion.
Rather, we conclude that, under the casualty doctrine, the courts must
consider the specific facts of the case in determining whether a zoning
regulation that prohibits the reconstruction of a nonconforming building
that has been destroyed is constitutional as applied.
In the present case, we find the following circumstances to be relevant.
First, article IV, § 10 (C), of the regulations expressly allows the owner of
a nonconforming building that has been completely destroyed in a calamity
to reconstruct the building and use it as before. The record supports the
conclusion that Breunich would have taken advantage of that regulation
but for the fact that the regulations applicable to flood prone areas prohibited
him from doing so. Thus, if article IV, § 10 (B), of the regulations were
applied to the sea cottage, the minimum flood elevation requirement would
have the effect of depriving Breunich of the clear right to rebuild the sea
cottage that he otherwise would have enjoyed. Cf. Piccolo v. West Haven, 120
Conn. 449, 453–54, 455–56, 181 A. 615 (1935) (when owners of nonconforming
building that had been destroyed by fire sought variance to replace destroyed
building with building that would have increased nonconformities, and own-
ers could have reconstructed original building within one year under town
regulations, variance was not warranted because any hardship was caused
by owners’ own failure to reconstruct original building within one year).
Second, the record supports the conclusion that, in light of the governing
regulatory requirements, the need to redesign the sea cottage to conform
to those requirements, and the need to obtain variances, Breunich proceeded
as expeditiously as reasonably possible to take steps to rebuild the sea
cottage. Finally, unlike in Hillman, there 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 variances were denied, and he would therefore
lose the entire value of the sea cottage. We recognize that there is authority
for the proposition that, when a property contains multiple structures, and
a nonconforming structure is more than 50 percent destroyed, prohibiting
the rebuilding of the structure may not be confiscatory under certain circum-
stances because the landowner still has a reasonable use of the property.
See State ex rel. Covenant Harbor Bible Camp v. Steinke, 7 Wis. 2d 275,
283, 96 N.W.2d 356 (1959) (as applied to destroyed nonconforming building
on property containing multiple buildings, 50 percent rule may be reasonable
if building contained separate use, but may not be reasonable if building
was ‘‘used jointly with other buildings in a single [nonconforming] use upon
one premises’’). In our view, however, it would make no sense to conclude
that it is confiscatory to prohibit the reconstruction of a destroyed noncon-
forming building when the building is the only building on the property and
it cannot be replaced by a conforming building, but if an identical building
on a property containing multiple buildings is destroyed and cannot be
replaced, reconstruction can constitutionally be prohibited. The loss is the
same in both cases. We conclude that, under these specific circumstances
it would be confiscatory to prohibit Breunich from rebuilding the sea cottage
pursuant to article IV, § 10 (B), of the regulations.
The concurrence disagrees with this analysis and, again relying on treatises
and case law from another state, contends that this court should consider
only the extent to which a nonconforming building has been destroyed in
determining whether the owner continues to have the right to use the
property for that purpose, and whether the landowner can replace the
nonconforming building with a conforming building is irrelevant. This court
expressly recognized in Hillman, however, that, when a nonconforming
structure has been destroyed, whether the application of a zoning regulation
that prevents the rebuilding of the structure would be constitutional
‘‘depends upon the particular facts’’ of the case. (Internal quotation marks
omitted.) State v. Hillman, supra, 110 Conn. 106. This court in Hillman
found it significant that there was no evidence in that case that prohibiting
the defendant landowner from rebuilding the destroyed nonconforming
buildings, which had been used in connection with the business of ‘‘storing,
washing, repairing, burning, and steaming barrels of various kinds and
descriptions which had contained commodities such as fish, lard, crisco, oil,
cider, pork, etc.’’; id., 96–98 (preliminary statement of facts and procedural
history); would cause a significant ‘‘diminution in value of the property’’;
id., 107; presumably because the defendant could replace the destroyed
buildings with a conforming building or buildings of comparable value.
The concurrence also contends that prohibiting Breunich from rebuilding
the sea cottage would not be unconstitutional because Breunich can still
use his property for other purposes. In support of this contention, the
concurrence cites Murr v. Wisconsin, U.S. , 137 S. Ct. 1933, 198 L.
Ed. 2d 497 (2017), for the proposition that the ‘‘test for regulatory taking
requires us to compare the value that has been taken from the property
with the value that remains in the property . . . .’’ (Internal quotation marks
omitted.) Id., 1943–44. The court in Murr, however, was not addressing the
problem that is before this court, namely, whether prohibiting the rebuilding
of a nonconforming building that has been destroyed violates the constitu-
tion when the landowner cannot replace the building with another structure
that is conforming. Rather, the court was addressing the question of whether
it should treat adjacent parcels of land that are owned by the same landowner
as a single parcel or as distinct parcels in determining whether a taking has
occurred. See id., 1941. The court declined to adopt a categorical answer
to that question but repeatedly emphasized that ‘‘[a] central dynamic of the
[c]ourt’s regulatory takings jurisprudence . . . is its flexibility’’; id., 1943;
and that ‘‘courts must consider a number of factors’’ on a case-by-case basis
when identifying the property that was taken by regulation and the property
that remains. Id., 1945. Thus, Murr is not inconsistent with Hillman. We
therefore conclude that, when a nonconforming structure has been
destroyed and a regulation prohibits the rebuilding of the structure, the
difference between the value that was taken from the property, i.e., the
value of the destroyed nonconforming structure, and the value that remains,
i.e., the value of the structure, if any, that the landowner can build to
replace the destroyed structure, is a factor that the courts may consider in
determining whether the strict enforcement of the regulation would have
a confiscatory effect.
The concurrence insists that, in making the determination as to whether
a taking has occurred, the only consideration is whether ‘‘the property,’’
i.e., the legally defined parcel of land on which a structure stood, still has
value. See footnote 5 of the concurring opinion. Murr makes clear, however,
that, for purposes of takings jurisprudence, the meaning of the term ‘‘the
property’’ is flexible. See Murr v. Wisconsin, supra, 137 S. Ct. 1943.
14
To the extent that it might be claimed that the fact that the soils under
the sea cottage would not support the elevated structure would constitute
an unusual hardship justifying such a variance, the response to that claim
is that that any such hardship could be alleviated merely by moving the sea
cottage three feet north.
To the extent that the plaintiff contends that, by submitting a request to
move the footprint of the sea cottage three feet north, thereby necessitating
the variance from the setback requirements, Breunich lost his constitution-
ally protected right to continue to use the sea cottage as a legally noncon-
forming building, we disagree. It is well settled that a variance may be
granted to continue a nonconforming use if the variance will reduce the
nonconformity of the building or use. See Vine v. Zoning Board of Appeals,
supra, 281 Conn. 562 (‘‘the reduction of a nonconforming use to a less
offensive prohibited use may constitute an independent ground for granting
a variance’’). The only effect of moving the sea cottage would be to reduce
the rear yard setback nonconformity. Accordingly, we can see no reason
why, if the zoning board would have been warranted in granting a variance
to the regulation governing building height to accommodate the minimum
flood elevation requirement if it had been possible to elevate the sea cottage
in its current location, it was barred from granting the application for vari-
ances because the sea cottage had to be moved three feet, thereby reducing
its nonconformity.
15
The authors of the white paper prepared by the Center for Energy &
Environmental Law at the University of Connecticut School of Law have
observed that applicants seeking variances from zoning regulations govern-
ing building height in order to conform to the minimum flood elevation
requirement must ‘‘demonstrate that the variance is required because of
some peculiar characteristic of the property. [This] can be [a] difficult
[requirement] to meet when the applicant is one of many similarly situated
floodplain property owners.’’ W. Rath et al., supra, p. 3. The authors also
note that height restrictions on buildings have the effect of ‘‘squeezing [such]
property owners between two different regulatory requirements.’’ Id.
16
The concurrence would conclude that the sea cottage is unique because
it was ‘‘a nonconforming accessory structure located in a highly restrictive
flood zone subject to the mandatory flood regulations.’’ The plaintiff’s point,
however, is that many of the buildings that were destroyed by Hurricane
Sandy cannot be rebuilt to conform to the flood regulations without obtaining
a variance from building height restrictions. See W. Rath et al., supra, app.
A, p. 7, quoting Stamford Zoning Regs., art. III, § 3 (A) (16) (b) (2016)
(when primary residence is reconstructed to comply with minimum elevation
standards, maximum height of new building may be only up to five feet
higher than height allowed by zoning regulations). Accordingly, we fail to
perceive how the sea cottage was unique. To the extent that the concurrence
contends that the plaintiff’s situation is different because the sea cottage
was an accessory structure, and, therefore, in contrast to the application
of a regulatory prohibition on rebuilding to primary residences that cannot
be rebuilt without obtaining a variance, the application of such a regulation
to the sea cottage does not constitute a taking; see footnote 13 of this
opinion; the concurrence appears to admit through the back door what it
refuses to admit through the front door, namely, the principle that a regula-
tion that prohibits the reconstruction of a nonconforming building that has
been destroyed creates a hardship if the building cannot be replaced with
a conforming building, notwithstanding the fact that the parcel of property
on which the structure was located still has value.
17
We note parenthetically that we are somewhat puzzled by the line of
cases holding that a variance is not warranted if the subject property does
not have a unique or peculiar characteristic that renders the strict application
of the zoning regulations unusually harsh. We have held that the fact that
a property does have such a unique or peculiar characteristic, standing alone,
does not justify the granting of a variance in the absence of proof that the
regulation is confiscatory. See E & F Associates, LLC v. Zoning Board of
Appeals, supra, 320 Conn. 20 (‘‘when a property would have economic value
even if the zoning regulations were strictly enforced, the fact that a peculiar
characteristic of the property would make compliance with the zoning regu-
lations exceptionally difficult if the property were put to a more valuable
or desirable use does not constitute either an ‘exceptional difficulty’ or an
unusual hardship’’). On the other hand, it is clear to us that, if a regulation
has a confiscatory effect on a property, it does not follow from the fact that
that effect does not arise from a unique characteristic of the particular
property that no hardship warranting a variance exists. Accordingly, it would
appear to us that the question of whether the regulation has a confiscatory
effect is dispositive, and it is unclear to us how the unique characteristics
of a particular property come into play when determining whether an unusual
hardship exists. Because this question is not before us, however, we leave
it for another day.
18
The plaintiff also cites Hescock v. Zoning Board of Appeals, 112 Conn.
App. 239, 962 A.2d 177 (2009), in support of the proposition that the require-
ment that a variance provide only the minimal relief required to alleviate
the hardship also applies to variances that will reduce the nonconformity
of an existing nonconforming building. His reliance on this case, however,
is misplaced. In Hescock, the defendant landowners owned a legally noncon-
forming house that was damaged in a hurricane and that no longer complied
with various building and habitability codes and requirements. See id., 252.
The house was located 44 feet landward of the mean high tide, in legal
nonconformance with a zoning regulation requiring a minimum distance of
100 feet. See id., 242. The landowners wanted to build a new house that
would be located 47 feet landward of the mean high tide and sought a
variance to authorize that nonconformity. See id. The Appellate Court
rejected the plaintiffs’ contention that the defendant zoning board of appeals
had failed to consider a zoning regulation requiring that ‘‘the granted variance
be minimal’’ on the ground that the board had considered the fact that ‘‘the
new house would be as far from the water as possible’’ given the configura-
tion of the lot when it granted the variance. Id., 255. In addressing the
plaintiffs’ contention that no hardship had been established, the Appellate
Court observed that a reduction in nonconformity can also justify a variance,
and concluded that the new house would reduce the existing nonconformi-
ties because it would be further from the water than the damaged house
and it would eliminate nonconformance with all of the other flood zone
regulations. See id., 260–61. In the present case, the plaintiff relies on the
Appellate Court’s conclusion that the variance was the minimum relief
required because ‘‘the new house would be as far from the water as possible’’;
id., 255; to support his claim that the zoning board could not grant the
variances unless Breunich established that he was reducing all of the sea
cottage’s nonconformities to the maximum extent possible. The Appellate
Court in Hescock, however, did not clearly distinguish the variance principles
that apply to new construction from the principles that apply to legally
nonconforming buildings. Indeed, the court did not cite any cases at all
in support of the proposition that the landowners were required to establish
that the variance was the ‘‘minimum necessary’’ to relieve hardship. Rather,
the court appears to have assumed in that portion of its decision that the
application for a variance was for ‘‘new construction’’; id., 254; and not for
the repair or modification of an existing, legally nonconforming building.
In contrast, in the portion of its decision addressing the plaintiffs’ claim
that no hardship existed, the court clearly assumed that the landowners
were continuing the use of a legally nonconforming building. See id., 261
(‘‘the new construction would reduce and eliminate existing nonconformit-
ies’’). Accordingly, Hescock provides little guidance in the present case.
19
We recognize, of course, that, if a landowner sought a variance to
increase the nonconformity of an existing, legally nonconforming building,
the landowner would be required to establish that the variance was the
minimum relief necessary to alleviate the hardship.