Mayer-Wittmann v. Zoning Board of Appeals of City of Stamford

         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 D’Auria, 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 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 [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 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, [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 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 [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 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 [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 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

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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 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 [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 ...