Argued
January 15, 2019
Procedural
History
Appeal
from the decision of the named defendant granting the
application for variances filed by the defendant 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, rendered judgment
dismissing the appeal, from which the plaintiff, on the
granting of certification, appealed.
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. Kaufman and, on the
brief, Timothy A. Smith, for the appellee (defendant Paul E.
Breunich).
Robinson, C. J., and D'Auria, Mullins, Kahn, Ecker and
Vertefeuille, Js. [*]
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 defendant Paul E. Breunich for variances to reconstruct a
legally nonconforming accessory structure on his property
after it was severely damaged by a hurricane. Breunich sought
variances from various setback requirements and height
restrictions of the Stamford zoning regulations on the ground
that, as applied to his property, 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 structure. The Planning Board of the City of
Stamford (planning board) unanimously recommended approval of
the application, and, after a hearing, the zoning board
unanimously 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
beach front 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 percent 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
requirement, 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]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 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 requirement 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 minimum 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 requirements 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 variances because Breunich had not
established that, without 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
necessary. 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 damaged by flood or
other calamity to reconstruct and use the building as before
within twelve months of the damage, 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 justified 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. Accordingly, 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 regulations from rebuilding the sea
cottage because its legally nonconforming status has
terminated. We conclude that the sea cottage retains its
status as a legally nonconforming 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 presents 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 construction 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 determination 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 reconstruction 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 reconstructed building to current regulations or
to seek variances from those regulations.
In the
present case, the defendants contend that Breunich 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
calamity 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 requirement 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 elevation 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 protection projects and relief efforts, and [to]
minimize prolonged 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 Emergency
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 exacerbate 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 current rates.
‘‘The
National Flood Insurance Program . . . offsets some of the
financial risk that these floods pose to homeowners. This
program, administered by the Federal Emergency Management
Agency . . . makes federal flood insurance available to
communities that impose a minimum standard of floodplain
management regulation, generally imposed through zoning
ordinances. Every Connecticut municipality participates in
the [program].
‘‘Under
the [program], participating municipalities must
create land use ordinances that require habitable
portions of new or substantially improved
residential structures within the Special Flood Hazard Area
to be elevated to or above the Base Flood Elevation . . .
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 Residential
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 nonconforming
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, however, conformance
with the minimum flood elevation requirement is not
categorically required under these circumstances. Rather,
article III, § 7.1 (F), of the regulations, expressly
authorizes the zoning board to issue variances from the
regulations applicable to flood zone areas. Thus, the
plaintiff is correct that Breunich potentially 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 elevation 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 elevation
requirement or seeking a variance from the regulation.
Indeed, the relatively short time frame referenced 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 administrative process for obtaining a
variance from those regulations 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 individual 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. Accordingly, 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
regulations ‘‘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 building that is nonconforming with the
minimum flood elevation 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 regulations
applicable to flood prone areas. In other words, if a
building is legally nonconforming with regulations such as
setback requirements, and the building is damaged 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 status 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 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 [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 exercised 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 precedent 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
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