*********************************************** 

The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was 

released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions 

and petitions for certification is the “officially released” 

date appearing in the opinion. 

All opinions are subject to modification and technical 

correction prior to official publication in the Connecticut 

Reports and Connecticut Appellate Reports. In the event of 

discrepancies between the advance release version of an 

opinion and the latest version appearing in the Connecticut 

Law Journal and subsequently in the Connecticut Reports 

or Connecticut Appellate Reports, the latest version is to 

be considered authoritative. 

The syllabus and procedural history accompanying the 

opinion as it appears in the Connecticut Law Journal and 

bound volumes of official reports are copyrighted by the 

Secretary of the State, State of Connecticut, and may not 

be reproduced and distributed without the express written 

permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. 

*********************************************** 
JACK E. TUREK ET AL. v. ZONING BOARD

OF APPEALS FOR THE CITY OF MILFORD

(AC 41824)

Alvord, Devlin and Pellegrino, Js.

Syllabus

The defendant zoning board of appeals appealed from the judgment of the

trial court sustaining the appeal filed by the plaintiff landowners. After

a hurricane destroyed their home, the plaintiffs sought to construct a

new home on their property. The plaintiffs filed an application for a

variance from the building height requirements of certain zoning regulations. The board denied the application, and the plaintiffs appealed to

the trial court, alleging that the board acted illegally, arbitrarily and in

abuse of its discretion by ignoring certain legal hardships unique to the

property. The trial court sustained the plaintiffs’ appeal, concluding that

the plaintiffs demonstrated an unusual hardship on the basis of the

destruction of their previous home and the need to comply with applicable federal and state flood elevation requirements, and that their proposal qualified under the narrow exception to the hardship requirement

set forth in Adolphson v. Zoning Board of Appeals (205 Conn. 703),

because the proposed house would reduce nonconformities in relation

to the previous house. Thereafter, this court granted the board’s petition

for certification to appeal to this court, and this appeal followed. Held:

1. The trial court incorrectly concluded that the plaintiffs demonstrated a

legally cognizable hardship: an applicant for a variance must show that,

because of some peculiar characteristic of his property, a strict application of the zoning regulation would produce an undue hardship, and

the plaintiffs here failed to carry their burden of demonstrating a legally

cognizable harship as the record of the proceedings before the board

contained no evidence of hardship originating in the zoning ordinance

because the evidence merely established that the plaintiffs could not,

in the absence of a variance, build the type of house that they desired

while conforming to flood elevation requirements; although the plaintiffs’ proposed home did not increase substantially the square footage

when compared to their prior home, the plaintiffs’ alleged hardship

arose out of their desire to build a certain type of home, which was

appropriately characterized as personal disappointment.

2. The trial court erroneously determined that the plaintiffs’ proposal qualified under the Adolphson exception to the hardship requirement:

although the plaintiffs argued that the board should have granted a

variance because it would reduce other nonconformities, the plaintiffs’

proposed new construction would create a height nonconformity where

none previously existed, and the plaintiffs provided this court with no

authority suggesting that the board was required to grant the requested

variance from the height limitation, which would create a new nonconformity, on the basis of a proposed reduction or elimination of other

nonconformities and compliance with flood regulations.

Argued November 18, 2019—officially released February 25, 2020

Procedural History

Appeal from the decision of the defendant denying

the plaintiffs’ application for a variance from the city

of Milford’s zoning regulations, brought to the Superior

Court in the judicial district of Hartford, Land Use Litigation Docket, and tried to the court, Hon. Marshall

K. Berger, judge trial referee; judgment sustaining the

appeal, from which the defendant, on the granting of

certification, appealed to this court. Reversed; judgment directed.

Kevin J. Curseaden, for the appellees (plaintiffs).
Matthew B. Woods, for the appellant (defendant).
Opinion

ALVORD, J. The defendant, the Zoning Board of

Appeals of the City of Milford (board), appeals from

the judgment of the trial court sustaining the appeal

filed by the plaintiffs, Jack E. Turek and Donna Weaver,

and reversing the decision of the board that the plaintiffs were not entitled to a variance. On appeal, the

board claims that the trial court erroneously sustained

the appeal, and causes us to consider (1) whether the

plaintiffs demonstrated a legally cognizable hardship,

and (2) whether the plaintiffs’ proposal qualifies under

the exception to the hardship requirement set forth in

Adolphson v. Zoning Board of Appeals, 205 Conn. 703,

710, 535 A.2d 799 (1988), and its progeny.1 We reverse

the judgment of the trial court.

The relevant facts and regulatory background are

as follows. The plaintiffs own property located at 59

Hillside Avenue in Milford (property). The property

measures approximately 4076 square feet and is situated between Long Island Sound to the east and Hillside

Avenue to the west. The property, which is narrow in

shape,2

slopes downward from 13 feet above sea level

at Hillside Avenue to between 8.3 and 8.9 feet above sea

level at the shore. The property was originally created

in 1901. The city of Milford (city) first enacted zoning

regulations (regulations) in 1930. The property is

located within the R-5 residential zone. The regulations

require a minimum of 5000 square feet of land on each

building lot located in an R-5 zone.3 See Milford Zoning

Regs., art. III, § 3.1.4.1. Accordingly, the lot is a legal

nonconforming lot. See Milford Zoning Regs., art. XI,

§ 11.2. The regulations also specify that in an R-5 zone

the maximum building height permitted is thirty-five

feet and the maximum lot coverage permitted is 65

percent. Milford Zoning Regs., art. III, § 3.1.4.1. Building

height is defined in the regulations in part as ‘‘[t]he

vertical distance measured in feet from the average

existing level of the ground surrounding the building

or addition thereto and within ten (10) feet thereof up

to the midpoint height of a pitched roof or up to the

level of the highest main ridge or peak of any other

type of structure, or the total number of stories in a

building including basements and/or half-stories.’’4 Milford Zoning Regs., art. XI, § 11.2. ‘‘Building Height

Within A Flood Hazard Area’’ is separately defined in

the regulations as ‘‘[t]he building height as defined

above, but including all portions of a building situated

below the regulatory flood protection elevation and all

portions of basements or cellars that extend above the

finished grade adjacent to the building.’’ Milford Zoning

Regs., art. XI, § 11.2. The average elevation of the property is 10 feet and 8.4 inches above sea level.

Prior to Hurricane Sandy in late October, 2012, there

existed on the property a single-family residence. The

two-story residence, which was more than 100 years
old, measured 1500 square feet. There were two other

structures, a detached garage and a shed, on the property. Hurricane Sandy destroyed the residence, which

was later demolished, and since that time the lot has

remained vacant.

The entire property, which is split between the AE

Flood Zone and the VE Flood Zone, is within a special

flood hazard area. The regulations incorporate by reference the areas of special flood hazard identified by the

Federal Emergency Management Agency (FEMA) and

the accompanying Flood Insurance Rate Maps (FIRM).5

Milford Zoning Regs., art. V, § 5.8.2.6 The Code of Federal Regulations (code) defines ‘‘[a]rea of special flood

hazard’’ in relevant part as ‘‘the land in the flood plain

within a community subject to a 1 percent or greater

chance of flooding in any given year. . . .’’ 44 C.F.R.

§ 59.1. The regulations also identify the VE Flood Zone

as a coastal high hazard area. Milford Zoning Regs., art.

V, § 5.8.2, and art. XI, § 11.2. The code defines ‘‘coastal

high hazard area’’ as ‘‘an area of special flood hazard

extending from offshore to the inland limit of a primary

frontal dune along an open coast and any other area

subject to high velocity wave action from storms or

seismic sources.’’ 44 C.F.R. § 59.1; see also Milford Zoning Regs., art. XI, § 11.2 (containing similar definition

and stating that ‘‘[t]he area is designated on a FIRM as

Zone VE or V’’).

The regulations provide that ‘‘[a]reas of special flood

hazard are determined utilizing the base flood elevations (BFE) provided on the flood profiles in the Flood

Insurance Study (FIS)7

for a community. BFEs provided

on a [FIRM] are only approximate (rounded up or down)

and should be verified with the BFEs published in the

FIS for a specific location.’’ (Footnote added). Milford

Zoning Regs., art. V, § 5.8.2. ‘‘Base flood’’ is defined in

both the code and the regulations as ‘‘the flood having

a one percent chance of being equaled or exceeded in

any given year.’’ 44 C.F.R. § 59.1; see also Milford Zoning

Regs., art. XI, § 11.2. ‘‘Base flood elevation’’ is defined

in the regulations as ‘‘[t]he elevation of the crest of the

base flood or 100-year flood. The height in relation to

mean sea level expected to be reached by the waters

of the base flood at pertinent points in the floodplains

of coastal and riverine areas.’’8 Milford Zoning Regs.,

art. XI, § 11.2. The base flood elevation for both the AE

Flood Zone and VE Flood Zone where the property is

located is thirteen feet.

The National Flood Insurance Program, administered

by FEMA, ‘‘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 . . . .’’ (Emphasis in original; internal quotation marks omitted.) Mayer-Wittmann v. Zoning Board of Appeals, 333 Conn. 624, 635,

218 A.3d 37 (2019), quoting 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/HeightRestrictions-on-Elevated-Buildings.pdf (last visited

February 18, 2020). Specifically, the code requires that

‘‘all new construction and substantial improvements of

residential structures within Zones A1–30, AE and AH

zones on the community’s FIRM have the lowest floor

(including basement) elevated to or above the base

flood level . . . .’’ 44 C.F.R. § 60.3 (c) (2). Under the

regulations, the board may not accept any application

to perform new construction of a residence ‘‘with a

lowest floor elevation below the regulatory flood protection . . . .’’ Milford Zoning Regs., art. IX, § 9.2.3 (3).

Additionally, § 25-68h-2 of the Regulations of Connecticut State Agencies, addressing floodplain management

standards, requires an additional one foot of freeboard,9

specifically mandating that new structures designed for

human habitation located within the floodplain be ‘‘elevated with the lowest floor one foot above the level of

the base flood.’’

With that factual and regulatory background in mind,

we turn to the procedural history of the present case.

After Hurricane Sandy destroyed their home, the plaintiffs sought to construct a new home on the vacant

property. On May 26, 2015,10 the plaintiffs filed an application for variances from the building height and setback requirements of the regulations11 and submitted

plans for the proposed residence. The proposed 1600

square foot house would be four stories, with a garage

located on the lowest level and storage and utilities

located on the highest level. The proposed house would

be set further back from Long Island Sound than the

previous house and would be entirely removed from

the VE Flood Zone. It also would cover less of the lot

than the previous structures.

As noted previously, building height as provided for in

the regulations is measured from ‘‘the average existing

level of the ground surrounding the building,’’ in this

case, 10 feet and 8.4 inches above sea level, to the

midpoint of the pitched roof. Milford Zoning Regs., art.

XI, § 11.2. As the trial court noted, were the proposed

house not required to be elevated, the proposed building, when measured from the average elevation to the

midpoint of the pitched roof, would have been 34 feet

and 11.5 inches high. FEMA regulations, however,

require residences in an AE-13 Flood Zone to be ele-
vated to base flood elevation (thirteen feet above mean

sea level), and state regulations require an additional

one foot of freeboard. See footnote 9 of this opinion.

With the base of the proposed building located at fourteen feet above sea level, the proposed house, when

measured from the average elevation, would be 38 feet

and 3.1 inches high. Thus, the plaintiffs sought a variance from the thirty-five foot height restriction.

The board held a public hearing on the plaintiffs’

application on June 9, 2015. Counsel for the plaintiffs

summarized the claimed hardship, including the topography of the property and applicable federal and state

elevation requirements. He highlighted other communities’ amendments to zoning regulations to take into

account base flood elevations in determining building

height. He also argued that the proposed house would

reduce nonconformities in relation to the previous

house and submitted photographs of neighboring properties in support of his argument that the proposed

house would not be out of character. Three neighboring

residents spoke in opposition to the application, and

four written statements of opposition were received.

Following the conclusion of the public hearing, the

board held the following discussion:

‘‘Chairman [Joseph Tuozzola]: Okay, this hearing’s

closed. What are your thoughts, lady and gentlemen?

‘‘[Board member Sarah] Ferrante: We did hear tonight

that the slope of the land is similar to the others in the

neighborhood so it’s not really a unique lot in that regard

and what applies here would apply to all is something

to consider.

‘‘[Board member Howard] Haberman: Yeah, I think

what I struggle with is the fact that the property and

the way that the grade, mean grade is measured in our,

by the regs, it doesn’t just affect this particular lot, it

affects a lot of lots down there on the shoreline and in

granting this variance for that height we’re in essence

amending the regulations and I don’t think that’s the

purpose of this Board. If it were just [this] particular

. . . lot alone, then I get it, there’s a peculiarity, a hardship but I think it extends beyond just this lot and I

think again, by granting that piece of the variance, the

request would be, in essence, amending the regs and I

don’t think, again, I don’t think that’s the purpose of

this board.

‘‘[Tuozzola]: Mr. Soda.

‘‘[Board member William] Soda: Well, I kind of feel

the same way, it’s not unique to this lot, the contours

on the adjacent lots, and, I mean, as bad as I feel for

these people and would love to see them get their house

going, I mean, you know, I can’t see it.

‘‘[Tuozzola]: Yeah, I’m also sorry that this has been

going on so long and, you know, but I do again feel

that because it’s a new house there are ways to adjust
this and we can’t speculate on how the regulations or

variances might change. So, right now we know what’s

in front of us and we can debate what the actual house,

height of the house would be and we’re saying the

height might be different because the house is built in

a lower spot so that’s what’s really changing it, but I

think there’s still room for improvement here. Any other

comments? I need [a] motion.

‘‘[Haberman]: I have a question about the motion in

terms of the other part of the application, obviously I

have no problem with the other variances they have

requested because given the size of the lot it’s okay to

approve, so I’m wondering whether without prejudice

again or do we split the vote, split the—

‘‘[Tuozzola]: All right so what you’re saying, do you

want to split some things on here and allow some

variances.’’

‘‘[Haberman]: Or deny [without] prejudice to give

them the opportunity.

‘‘[Soda]: Well what if we give them the other variances, then if they conform to the height they can, is

that possible Stephen.

‘‘[Zoning Enforcement Officer Stephen] Harris: It’s

unusual but possible, you can grant some variances but

not others.

‘‘[Tuozzola]: Well the height is really the issue, so I

don’t know how we can do the other things without

addressing that. How are you going to start building a

house with the variances and the height is still not

addressed. It’s still going to be up for debate.

‘‘[Ferrante]: I’m also hesitant to grant some variance

and not to grant some variances without [an] overall

plan, we’re allowing something without knowing what

we’re getting at that point.

‘‘[Soda]: We would know what we’re getting except

for the height.

‘‘[Ferrante]: Right, I mean, but it is a brand new house

and it could be redesigned another way.

‘‘[Haberman]12: I guess Mr. Haberman’s questions was

how many times can you deny without prejudice, again,

I would think you could.

‘‘[Harris]: That’s up to the board. You can deny with

waivers to reapply as often as you would like.

‘‘[Haberman]: I move to make a motion to deny without prejudice.

‘‘[Soda]: I’ll second that.

‘‘[Haberman]: Reason for the motion obviously the

height is an issue for us but other parts of the application

are okay, there’s room to change the application.’’

(Footnote added.)
The board then unanimously voted to deny the plaintiffs’ requested variances. The plaintiffs filed an appeal

of that decision with the trial court. In their July 2,

2015 complaint, the plaintiffs alleged, inter alia, that

the board, in denying the requested variances, acted

illegally, arbitrarily, and in abuse of its discretion when

it ignored evidence on the record of hardship that

FEMA, state, and local regulations require residences

in an AE-13 Flood Zone to be built at thirteen feet

above mean sea level plus an additional one foot of

freeboard,13 and that the FEMA and state regulations

‘‘do not account for how building height is measured

in the regulations.’’ They further alleged that the board

ignored evidence of the legal hardships unique to the

property, including the elevation of the property, which

situated it across the AE 13 and VE 13 Flood Zones;

the narrow width of the property, having only 35.6 feet

of frontage where fifty feet is required; the location

of the property bordering Long Island Sound; and the

topography of the property, in that it slopes downward

from the street to the shore. The plaintiffs also alleged

that the board failed to consider evidence that ‘‘overall

nonconformities on the property would be reduced if

the application were approved . . . .’’

After receiving the parties’ written briefs, the court

held a hearing on the matter on August 9 and December

5, 2017. In its April 4, 2018 memorandum of decision,

the court found that the requested variance would not

‘‘negatively [impact] the comprehensive plan.’’ Specifically, the court concluded that ‘‘the board’s denial based

solely upon the aesthetic height requirement—which

the plaintiffs’ proposed structure arguably meets—does

not consider the nuances and immediacy of flood hazard or sea level rise and the elevation requirements in

the plan and is thus contrary to law and logic.’’ Turning

to the hardship requirement, the court found that the

plaintiffs had established unusual hardship, which was

not self-imposed, on the basis of ‘‘the total destruction

of the previous home by Hurricane Sandy and the need

to comply [with] applicable elevation requirements.’’ It

further concluded that the plaintiffs’ proposal qualified

under the narrow exception to the hardship requirement set forth in Adolphson v. Zoning Board of Appeals,

supra, 205 Conn. 710, in that the proposed house would

reduce nonconformities. For those reasons, the court

sustained the plaintiffs’ appeal. The board thereafter

filed a petition for certification to appeal. This court

granted the petition, and this appeal followed.

Before turning to the claims on appeal, we set forth

the applicable law governing variances and our scope

and standard of review. General Statutes § 8-6 authorizes municipal zoning boards of appeals, inter alia, to

‘‘vary the application of the zoning bylaws, ordinances

or regulations in harmony with their general purpose

and intent and with due consideration for conserving
the public health, safety, convenience, welfare and

property values solely with respect to a parcel of land

where, owing to conditions especially affecting such

parcel but not affecting generally the district in which

it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice

will be done and the public safety and welfare secured,

provided that the zoning regulations may specify the

extent to which uses shall not be permitted by variance

in districts in which such uses are not otherwise

allowed.’’

‘‘[A] variance constitutes authority extended to the

owner to use his property in a manner forbidden by

the zoning enactment. . . . It is well established . . .

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 interpreted . . . § 8-6 to authorize a zoning board of appeals to 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.’’ (Citation omitted; internal quotation

marks omitted.) Verrillo v. Zoning Board of Appeals,

155 Conn. App. 657, 678–79, 111 A.3d 473 (2015).

In reviewing a decision of a zoning board of appeals,

‘‘[c]ourts 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].’’ (Internal quotation

marks omitted.) Mayer-Wittmann v. Zoning Board of

Appeals, supra, 333 Conn. 639; see also Richardson v.

Zoning Commission, 107 Conn. App. 36, 42, 944 A.2d

360 (2008) (‘‘Trial 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. . . . The trial court should reverse the

zoning board’s actions only if they are unreasonable,

arbitrary or illegal.’’ (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.) Mayer-Wittmann v. Zoning

Board of Appeals, supra, 639.14

In order to determine whether the board properly

denied the subject variance, we first must consider

whether the board gave reasons for its action. ‘‘It is well

settled that [w]hen a zoning board states the reasons

for its action, the question for the court to pass on is

simply whether the reasons assigned are reasonably

supported by the record and whether they are pertinent

to the considerations which the commission is required

to apply under the zoning regulations. . . . The court

should not go behind the official statement of the board.

. . . In the absence of a statement of purpose by the

zoning [agency] for its actions, it [is] the obligation of

the trial court, and of this court upon review of the trial

court’s decision, to search the entire record to find a

basis for the [agency’s] decision. . . . Our inquiry

begins, therefore, with the question of whether the

board rendered a formal, official, collective statement

of the reasons for its action. . . .

‘‘That analysis is guided by certain established precepts. First, individual reasons given by certain members of the [zoning agency do] not amount to a formal,

collective, official statement of the [agency] . . . and

are not available to show the reason[s] for, or the

ground[s] of, the [zoning agency’s] decision. . . . Second, the remarks of a board member in moving to grant

a variance do not constitute a collective statement of

the basis for the board’s action. . . . Third, it is not

appropriate for a reviewing court to attempt to glean

such a formal, collective statement from the minutes

of the discussion by . . . members prior to the [zoning

agency’s] vote. . . .

‘‘Fourth, our Supreme Court has explained that the

cases in which [it] held that the agency rendered a

formal, official, collective statement involve circumstances wherein the agency couples its communication

of its ultimate decision with express reasons behind

that decision.’’ (Citations omitted; emphasis in original,

footnote omitted; internal quotation marks omitted.)

Verrillo v. Zoning Board of Appeals, supra, 155 Conn.

App. 672–74.

In reviewing the meeting minutes, as set forth previously, we note that, although certain individual board

members offered their thoughts on whether the plaintiffs had established a hardship prior to voting on the

application, that discussion does not constitute a formal, official, collective statement of reasons for its

action. See Amendola v. Zoning Board of Appeals, 161

Conn. App. 726, 736, 129 A.3d 743 (2015) (‘‘although

board members discussed the characteristics of the

property and conditions for granting the proposed vari-
ances, the record does not contain a collective statement of the board’s reasons for granting the variances’’).

Board member Haberman’s statement, in moving to

deny the application, that ‘‘obviously the height is an

issue for us,’’ which the trial court relied on as forming

an official reason for the decision, is likewise not sufficient. See Verrillo v. Zoning Board of Appeals, supra,

155 Conn. App. 674 (‘‘the remarks of a board member in

moving to grant a variance do not constitute a collective

statement of the basis for the board’s action’’); see also

Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208–

209, 209 n.12, 658 A.2d 559 (1995) (board’s discussion of

reasons supporting variance before vote and chairman’s

remarks in moving to grant variance did not constitute

collective statement of basis for board’s decision granting variance). Accordingly, we must search the record

as a whole to determine whether the evidence supports

the board’s decision to deny the subject variance.

I

The board’s first claim on appeal is that the court

erroneously concluded that the plaintiffs had established a hardship. The board maintains that the hardship

claimed by the plaintiffs was self-created because ‘‘if

the plaintiffs eliminated one story in the new structure,

or otherwise reduced the structure’s height by 4.5 feet,

they would not need a height variance.’’ We agree with

the board that the plaintiffs failed to establish the existence of a legally cognizable hardship and the trial court

erred in concluding to the contrary.

As noted previously, ‘‘[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. . . . 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 application of regulatory measures so that they do not operate in an arbitrary

or confiscatory and, consequently, unconstitutional
. . . manner.’’ (Citation omitted; internal quotation

marks omitted.) Mayer-Wittmann v. Zoning Board of

Appeals, supra, 333 Conn. 640.

The board argues that this court’s decision in Jaser

v. Zoning Board of Appeals, 43 Conn. App. 545, 545–46,

684 A.2d 735 (1996), controls. In Jaser, after a house

was destroyed by a fire, the owner sought a variance

of the setback requirement in order to build a new

house on the property. Id., 546. Prior to submitting their

variance application, however, the plaintiffs submitted

an application to the zoning board of appeals to have

the lot declared a nonconforming building lot, and they

submitted a survey that showed that a house could

be built on the property within the applicable setback

requirements. Id. The board denied the variance application, stating the following as its reason: ‘‘It was felt

by those in opposition that there was no evidence presented to establish a hardship and noted that approval

was granted for the nonconforming lot on the basis

that a structure to be built would comply with setback

requirements.’’ (Internal quotation marks omitted.) Id.,

547. After the trial court sustained the plaintiffs’ appeal,

this court reversed the judgment of the trial court, concluding that ‘‘a hardship was not shown because the

plaintiffs admitted that a house, even though not the

type that they desired, could have been built on the lot

while conforming to the setback requirements.’’ Id.,

547–48.

In the present case, the federal and state mandated

minimum flood elevation requirements combined with

the local height limitation have the effect of limiting

the height of the home that the plaintiffs seek to build on

their property. The plaintiffs maintain that the multiple

requirements ‘‘severely [restrict] what can be built.’’

They do not argue that they cannot build a single-family

residence on their property in the absence of a variance

from the building height regulation. Cf. Mayer-Wittmann v. Zoning Board of Appeals, supra, 333 Conn.

648–49 (applicant established that unusual hardship

would result from strict enforcement of height limitation, which would deprive applicant of right to continue

using existing, legally nonconforming accessory structure, where such structure could not be rebuilt in

absence of either variance from building height regulations or minimum flood elevation requirement). Instead,

as the board emphasizes, ‘‘the need [for a variance]

arises from the plaintiffs’ desire to construct a new

three-story, 1600 square foot house to replace a twostory, 1500 square foot house.’’

‘‘A variance is not a tool of convenience, but one of

necessity. . . . They are not to be granted when a reasonable use already is present, or plainly is possible

under the regulations, but an owner prefers otherwise.’’

Verrillo v. Zoning Board of Appeals, supra, 155 Conn.

App. 716. Moreover, a property owner’s personal disap-
pointment in the use of his property does not constitute

the legal hardship necessary for the granting of a variance. See Amendola v. Zoning Board of Appeals, supra,

161 Conn. App. 746 (‘‘[The applicant’s] proposed additions reflect personal preference, not hardship, and

could be achieved through alternative construction

plans that comply with the regulations. Indeed, the mere

fact that a conforming structure could be built without

the need for a setback variance transforms an alleged

hardship into personal disappointment.’’); Green Falls

Associates, LLC v. Zoning Board of Appeals, 138 Conn.

App. 481, 494, 53 A.3d 273 (2012) (plaintiff ‘‘failed to

show that the inability to build its desired house as a

result of the denial of the variance application is anything beyond a disappointment’’); Michler v. Planning & Zoning Board of Appeals, 123 Conn. App. 182,

187, 1 A.3d 1116 (2010) (applicant’s ‘‘disappointment in

the use of the subject property, namely, the inability to

build a larger structure,’’ constituted personal hardship

and did not form proper basis for board’s finding of

hardship (emphasis omitted)).

We agree with the board that the record contains

no evidence demonstrating that, in the absence of a

variance from the height limitation, the plaintiffs cannot

build a home on their property that conforms with the

federal and state mandated minimum flood elevation

requirements.15 See Verrillo v. Zoning Board of Appeals,

supra, 155 Conn. App. 696–97 (record did not substantiate finding that hardship arose from inability to comply

with fire or building codes where applicant submitted

no evidence showing that proposed expansion of

existing structure was necessary, rather than preferable, course to achieve compliance with code requirements). In sum, the record lacked evidence of hardship

originating in the zoning ordinance because the plaintiffs’ evidence submitted to the board merely established that they could not build the type of house that

they desired while conforming to the height limitation.

Thus, although the plaintiffs’ proposed home did not

increase substantially the square footage when compared to their prior home, the plaintiffs’ alleged hardship arises out of their desire to build a certain type of

home; see Jaser v. Zoning Board of Appeals, supra, 43

Conn. App. 548; which is appropriately characterized

as personal disappointment.

To obtain the requested variance, the plaintiffs bore

the burden of demonstrating, on the record of the proceeding before the board, a legally cognizable hardship.

See Verrillo v. Zoning Board of Appeals, supra, 155

Conn. App. 719–20; see also Amendola v. Zoning Board

of Appeals, supra, 161 Conn. App. 738–39 (applicant

has burden of proving existence of sufficient hardship).16 We conclude that the plaintiffs failed to carry

their burden of demonstrating a legally cognizable hardship and, therefore, the board acted properly in denying

the variance.
II

The board’s second claim on appeal is that the trial

court erroneously concluded that the plaintiffs’ proposal qualifies under the exception to the hardship

requirement set forth in Adolphson v. Zoning Board of

Appeals, supra, 205 Conn. 710. Specifically, it argues

that ‘‘[t]he Adolphson exception does not apply to the

height variance request, because the proposed new

structure does not propose to lessen the structure’s

nonconformity as to height. . . . Adolphson does not

stand for the proposition that the reduction in one nonconformity allows as a tradeoff the increase in, or creation of, another nonconformity.’’ (Internal quotation

marks omitted.) We agree with the board that the present case does not qualify under the Adolphson exception to the hardship requirement.17

‘‘In cases in which an extreme hardship has not been

established, the reduction of a nonconforming use to

a less offensive prohibited use may constitute an independent ground for granting a variance.’’ Vine v. Zoning

Board of Appeals, 281 Conn. 553, 562, 916 A.2d 5 (2007).

In Adolphson v. Zoning Board of Appeals, supra, 205

Conn. 705, the applicants had purchased property

located in an industrial district 1 zone, on which property the prior owners had operated an aluminum casting

foundry, which was a nonconforming use. The applicants purchased the property with the intention of using

it as an automobile repair shop, and sought variances

in order to do so, despite the fact that such use was

prohibited by the town’s zoning regulations in that

industrial zone. Id., 705–706. The zoning board of

appeals granted the requested variances, and neighboring property owners appealed to the Superior Court,

which dismissed the appeal on the ground that ‘‘the

proposed use for the subject property operating under

current regulations as to air pollution and the like would

be far less offensive to the surrounding residents than

a foundry.’’ (Internal quotation marks omitted.) Id., 706.

Our Supreme Court affirmed the judgment of the trial

court on the ground that ‘‘nonconforming uses should

be abolished or reduced to conformity as quickly as

the fair interest of the parties will permit—[i]n no case

should they be allowed to increase. . . . The accepted

method of accomplishing the ultimate object is that,

while the alien use is permitted to continue until some

change is made or contemplated, thereupon, so far as

is expedient, advantage is taken of this fact to compel

a lessening or suppression of the nonconformity.’’ (Citations omitted; internal quotation marks omitted.) Id.,

710.

In Stancuna v. Zoning Board of Appeals, 66 Conn.

App. 565, 567, 569–71, 785 A.2d 601 (2001), the lot at

issue, which predated town zoning regulations, contained a single-family residence in a commercial zone.

The applicant intended to construct a new commercial
building on the property and sought a variance of the

zoning regulation requiring a twenty foot side yard setback, which the zoning board of appeals granted. Id.,

566–67. On appeal to this court following the trial

court’s dismissal of the appeal, this court recognized

the following, citing Adolphson: ‘‘That a variance will

eliminate a nonconforming use constitutes independent

grounds for sustaining the granting of a variance.’’ Id.,

572. Noting that the variance would eliminate the nonconforming residential use of the property and would

permit construction of a building for commercial use

in a commercial zone, this court affirmed the judgment

of the trial court. Id. In Vine v. Zoning Board of Appeals,

supra, 281 Conn. 559, our Supreme Court applied

Adolphson and Stancuna, in concluding that a zoning

board’s decision to grant a variance was proper because

it reduced a preexisting nonconforming use of the property to a less offensive use.

The plaintiffs argue that the facts presented in Hescock v. Zoning Board of Appeals, 112 Conn. App. 239,

962 A.2d 177 (2009), are most similar to those in the

present appeal. In Hescock, the applicants sought to raze

the house located on their property and to construct

a new house. Id., 242. They sought a variance of the

regulation requiring that new construction ‘‘be located

100 feet landward of the reach of the mean high tide.’’

(Internal quotation marks omitted.) Id. The existing

house was located forty-four feet from the mean high

tide, and the proposed new house would be located

forty-seven feet from the mean high tide. Id. The new

house would be compliant with all other flood regulations, including the standards concerning base flood

elevation levels, and would replace the existing home

below the base flood elevation. Id., 242–43, 260. The

board approved the variance, stating that the application ‘‘as presented—will diminish existing non-conformity and will address and improve flood zone issues.’’

(Internal quotation marks omitted.) Id., 251. On appeal,

this court concluded that the board’s determination that

the new construction would lessen nonconformities

was substantially supported by the evidence presented

at the hearing, including that the new house would be

set farther from the mean high tide than the existing

one. Id., 260. It further concluded that the law as set

forth in Vine, Adolphson, and Stancuna was applicable

to the circumstances, in that there was ‘‘substantial

evidence that the new construction would reduce and

eliminate existing nonconformities and present less of

a hazard in case of a flood . . . .’’ Id., 260–61. Accordingly, the elimination and reduction of nonconformities

presented an independent basis for granting a variance.18 Id., 261.

The plaintiffs argue that they are entitled to the

requested height variance under Adolphson, Stancuna,

Vine, and Hescock, on the basis that their proposed

residence would reduce ‘‘nonconformities from the pre-
vious structure.’’ Specifically, they maintain that the

previous nonconformities included the detached garage

in the front yard setback,19 the shed structure on the

property line in violation of the side yard setback, the

residence in violation in the side yard setback, portions

of the residence in the VE 13 Flood Zone which made

it more susceptible to serious flooding, and a finished

floor elevation below the flood line. They argue that

‘‘[t]he proposed plan consolidated all of the nonconforming structures on the property into one structure,

which is to be built flood compliant with federal, state,

and Milford regulations.’’ We disagree.

In each of the cases cited by the plaintiff, the applicants sought a variance and their proposal included the

elimination of a nonconforming use or conversion to a

less offensive nonconforming use; see Adolphson v.

Zoning Board of Appeals, supra, 205 Conn. 710 (variance from regulation prohibiting operation of automobile repair shop justified because such use was less

offensive than prior nonconforming use of foundry);

Stancuna v. Zoning Board of Appeals, supra, 66 Conn.

App. 569–71 (variance from setback requirement was

proper because variance eliminated nonconforming residential use and allowed for conforming commercial

use); or the variance the applicant sought itself constituted a reduction or elimination of a presently existing

nonconformity. See Vine v. Zoning Board of Appeals,

supra, 281 Conn. 571–72 (variance from minimum

square footage requirement justified because building

two houses on two lots constituted reduction in nonconformity of three houses on three lots); Hescock v. Zoning Board of Appeals, supra, 112 Conn. App. 260–61

(variance from setback requirement for proposed new

construction justified by reduction in existing noncompliance with setback requirement and elimination of

noncompliance with all remaining flood regulations).

In the present case, however, the plaintiffs’ proposed

new construction would create a height nonconformity

where none previously existed. These circumstances

distinguish the present case from Adolphson, Stancuna,

Vine, and Hescock. Cf. Verrillo v. Zoning Board of

Appeals, supra, 155 Conn. App. 728 (applicants’ proposed expansion would not result in lesser nonconformity on applicants’ property and, therefore, Adolphson

exception was not applicable). The plaintiffs have provided this court with no authority suggesting that the

board was required to grant the requested variance

from the height limitation, which would create a new

nonconformity, on the basis of a proposed reduction

or elimination of other nonconformities and compliance

with flood regulations. Thus, we conclude that the present case does not qualify under the Adolphson exception to the hardship requirement. Accordingly, the trial

court improperly sustained the plaintiffs’ appeal.

The judgment is reversed and the case is remanded
with direction to render judgment dismissing the plaintiffs’ appeal.

In this opinion the other judges concurred.

1 The board also claims on appeal that the requested variance would affect

substantially the city of Milford’s comprehensive zoning plan. Because we

conclude in part I of this opinion that the plaintiffs failed to establish unusual

hardship and in part II of this opinion that the plaintiffs’ proposal does not

qualify under the Adolphson exception, it is unnecessary to reach the board’s

claim that the plaintiffs’ requested variance would affect substantially the

comprehensive zoning plan. See Rural Water Co. v. Zoning Board of Appeals,

287 Conn. 282, 296 n.12, 947 A.2d 944 (2008) (declining to address whether

proposed residence would affect substantially comprehensive zoning plan

in light of conclusion that no unusual hardship existed); see also Moon v.

Zoning Board of Appeals, 291 Conn. 16, 18 n.1, 966 A.2d 722 (2009).

2 After noting a slight discrepancy between the plaintiffs’ measurements

and the measurements on the Zoning Location Survey submitted to the

board, the court included in its memorandum of decision the plaintiffs’

measurements of the lot as ‘‘approximately 113 feet long [and] 28.2 feet

[wide] along the shore of the Long Island Sound to the east and with 32

feet of frontage on Hillside Avenue to the west.’’

3 The zoning regulations also require a minimum lot width of fifty feet

and lot depth of seventy feet. Milford Zoning Regs., art. III, § 3.1.4.1.

4 Exempted from the height computation are roof parapets and turrets of

less than three feet, cupolas and domes that do not exceed 15 percent of

the roof area, among other restrictions, and church spires and chimneys.

Milford Zoning Regs., art. XI, § 11.2.

5 The Code of Federal Regulations defines ‘‘Flood Insurance Rate Map’’

as ‘‘an official map of a community, on which the Federal Insurance Administrator has delineated both the special hazard areas and the risk premium

zones applicable to the community. . . .’’ 44 C.F.R. § 59.1; see also Milford

Zoning Regs., art. XI, § 11.2 (containing similar definition).

6 Section 5.8.2 of the zoning regulations provides, in relevant part: ‘‘The

areas of special flood hazard identified by [FEMA] in its Flood Insurance

Study (FIS) for New Haven County, Connecticut, dated December 17, 2010,

and accompanying Flood Insurance Rate maps (FIRM), dated December 17,

2010, and other supporting data applicable to the [city], and any subsequent

revisions thereto, are adopted by reference and declared to be a part of

this regulation.’’

7 The code’s definition of ‘‘Flood Insurance Study’’ refers to ‘‘[f]lood elevation study,’’ which is defined as ‘‘an examination, evaluation and determination of flood hazards and, if appropriate, corresponding water surface elevations, or an examination, evaluation and determination of mudslide (i.e.,

mudflow) and/or flood-related erosion hazards.’’ 44 C.F.R. § 59.1.

8 The code defines ‘‘[f]lood elevation determination’’ as ‘‘a determination

by the Federal Insurance Administrator of the water surface elevations of

the base flood, that is, the flood level that has a one percent or greater

chance of occurrence in any given year.’’ 44 C.F.R. § 59.1.

9 The code defines ‘‘[f]reeboard’’ as ‘‘a factor of safety usually expressed

in feet above a flood level for purposes of flood plain management. ‘Freeboard’ tends to compensate for the many unknown factors that could contribute to flood heights greater than the height calculated for a selected size

flood and floodway conditions, such as wave action, bridge openings, and

the hydrological effect of urbanization of the watershed.’’ 44 C.F.R. § 59.1.

As the trial court noted in its memorandum of decision, the plaintiffs

originally contended that state regulations required two additional feet of

freeboard. They later argued that only one foot of freeboard was required.

On appeal, the parties agree that only one foot of freeboard is required.

10 The plaintiffs filed a previous variance application, which was denied

by the board without prejudice in December, 2014.

11 Specifically, the plaintiffs’ requested variances included a ‘‘[r]eduction

in the (south) side yard setback from 10 feet to 8.46 feet . . . [r]eduction

in the (south) deck stairs setback from 8 feet to 4.4 feet . . . [i]ncrease in

number of stories from three to four and . . . [i]ncrease in height from 35

feet to 39.5 feet . . . .’’ (Internal quotation marks omitted.)

As the trial court noted and as the plaintiffs represent in their brief to

this court, the requested variance of the number of stories became moot

as of a change in the regulations permitting four stories, which became

effective in March, 2016. Additionally, the board’s counsel recognized before

the trial court that the board ‘‘had no problem with the first two requested
setback variances.’’ (Internal quotation marks omitted.) Thus, the only issue

before the trial court and this court is the board’s denial of the requested

variance as to the height of the proposed structure.

12 Although the verbatim meeting minutes attribute this remark to board

member Haberman, it appears that another board member was speaking.

13 See footnote 9 of this opinion.

14 Our Supreme Court recently issued a decision addressing the unusual

hardship required to be shown by an applicant for a variance. See MayerWittmann v. Zoning Board of Appeals, supra, 333 Conn. 624. While the

majority opinion stated that ‘‘the tests for unusual hardship and inverse

condemnation are one and the same;’’ id., 642; it did not alter the hardship

analysis as it would be applied to this case. The parties had the opportunity,

during oral argument before this court, to argue the applicability of MayerWittmann to the present appeal, and neither contended that it was controlling.

15 During the public hearing, board member Soda repeated a suggestion

that he had made with respect to the plaintiffs’ prior application; see footnote

10 of this opinion; that a change in the type of roof could bring the proposed

house within the height limitation. Specifically, he suggested that the proposed shed roof could be changed to a gable roof. Counsel for the plaintiffs

represented that he had explored this possibility with Joe Griffith, the chief

building inspector for the city, but that it was not permitted under the state

building code because of wind concerns.

Aside from the preceding discussion regarding the roof, the only evidence

in the record of the effect of the denial of the requested variance is a

statement in a document titled ‘‘59 Hillside Ave Height [F]acts,’’ in which

the plaintiffs represented: ‘‘Unless zoning approves a hardship due to the

lot size, slope and location in a flood zone they will require us to remove

[five feet] from the structure. This will remove one floor from the design

which is not forced on any other Milford resident that is not in a flood

zone.’’ This representation alone is not sufficient evidence of hardship.

16 In its principal appellate brief, the board argues that the plaintiffs failed

to prove that their hardship was unique because ‘‘virtually every lot on

Hillside Avenue shares the same characteristics . . . .’’ The plaintiffs challenge that position by arguing that ‘‘[t]he correct standard is whether other

properties in the same zone are similar, not other properties in the same

neighborhood.’’ (Emphasis omitted.) Because we conclude that the plaintiffs

failed to demonstrate the existence of a sufficient hardship, we need not

address whether any claimed hardship is unique.

17 Before the board, the plaintiffs’ counsel argued as follows: ‘‘[T]he first

sheet of the plans we have submitted shows the proposed dwelling. When

you compare that to sheet 2 which showed the prior development on the

property you can see glaringly that the building area and the lot coverage

especially is going to be reduced. The prior development with the shed, the

garage and the residence on the property showed the lot coverage being

over 70 percent of the property. Our regulations in the R-5 zone permit no

more than 65 percent lot coverage and that is going to be what the proposed

dwelling will be. So actually right [from] the outset we’re reducing or eliminating a nonconformity on the structure, I mean a nonconformity on the

property with the proposed structure. Secondly, the other point I wanted

to make is that by centering the lot we are requesting side yard variances.

I noticed fro[m] the record and the minutes of the prior meeting that didn’t

pose a great problem to the board when you were considering the application, but I did want to note and make it part of the record that the proposed

residence is now going to be centered basically in the middle of the property.

It removes a residence that is closer some side yard setback before was

3.6 feet. It had a shed, it was basically right on the property line. It had a

garage which encroached upon the twenty foot front yard setback that’s

required in the zone. So, I think that the overall plan of development for

this new residence really cleans the property up and quite honestly reduces

and eliminates some prior nonconformities with the plan. So really it all

comes down to the height of the building . . . .’’

The board implicitly rejected this argument in denying the variance.

18 We note that Vine v. Zoning Board of Appeals, supra, 281 Conn. 555,

Adolphson v. Zoning Board of Appeals, supra, 205 Conn. 710, Hescock v.

Zoning Board of Appeals, supra, 112 Conn. App. 261, and Stancuna v.

Zoning Board of Appeals, supra, 66 Conn. App. 572, in contrast with the

present case, all involved a reviewing court’s decision to sustain a board’s

granting of a variance.

19 The board correctly maintains that ‘‘the proposed elimination of the
detached garage cannot be considered a reduction of a nonconformity

because there is no minimum front yard setback for accessory structures,

and therefore no violation.’’ See Milford Zoning Regs., art. XI, § 11.2 (defining

accessory building in relevant part as ‘‘[a] building which is clearly incidental

or subordinate customarily in connection and located on the same lot with

the principal building or use’’); see Milford Zoning Regs., art. III, § 3.1.4

(containing only side and rear setback requirements for accessory

structures).