Argued
January 15, 2019
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[Copyrighted Material Omitted]
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The
Superior Court, Judicial District of Stamford-Norwalk at
Stamford, Edward R. Karazin, Judge Trial Referee, 2016 WL
8135390.
Scott
T. Garosshen, with whom were Brendon P. Levesque, Hartford,
and, on the brief, William I. Haslun II, Greenwich, 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, Stamford, for the appellee
(defendant Paul E. Breunich).
Robinson,
C. J., and DAuria, Mullins, Kahn, Ecker and Vertefeuille,
Js.[*]
OPINION
VERTEFEUILLE,
J.
[333
Conn. 626] The issue that we must decide in this appeal is
whether the named defendant,
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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, [333 Conn. 627] 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 Breunichs 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. Breunichs property is nonconforming to the Zoning
Regulations of the city of Stamford
(regulations)[2] but, because the propertys
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 [333 Conn. 628]
"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,
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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 cottages
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, [333 Conn. 629] 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 [333 Conn. 630] 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.
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The
planning board unanimously recommended that the zoning board
approve Breunichs application for variances. After a hearing
at which both Breunich and a representative of the plaintiff
appeared, the zoning board granted Breunichs 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 [333 Conn. 631] 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 boards 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 Breunichs claim that the zoning board
could have granted the variances on the ground that the
variances reduced the sea cottages nonconformities.
Accordingly, the court dismissed the plaintiffs 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 plaintiffs contention that that status
terminated one year after the sea cottage was damaged by the
hurricane [333 Conn. 632] 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
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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 [333 Conn. 633] 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
cottages 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
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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.
[333
Conn. 634] 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
buildings 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 buildings legally
nonconforming status with respect to that
requirement was lost because the cost of repairs exceeds
50 percent of the buildings 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 [333 Conn. 635] 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
...