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*********************************************** 
KARL MAYER-WITTMANN, EXECUTOR (ESTATE OF

GERDA MAYER-WITTMANN) v. ZONING BOARD

OF APPEALS OF THE CITY OF

STAMFORD ET AL.

(SC 19972)

Robinson, C. J., and D’Auria, Mullins, Kahn, Ecker and Vertefeuille, Js.*

Syllabus

Pursuant to the Stamford Zoning Regulations (article IV, § 10 [C]), when a

legally nonconforming building has been damaged by a flood or other

calamity, the building ‘‘may be reconstructed and used as before’’ if

reconstruction is commenced within twelve months of the calamity.

The plaintiff appealed from the judgment of the trial court, which dismissed

his appeal from the decision of the defendant zoning board of appeals

granting the application of the defendant property owner, B, for variances in connection with the reconstruction of a cottage on his property

after the cottage was severely damaged by a hurricane. The plaintiff

owned real property adjacent to B’s beachfront property. The cottage

was nonconforming under the Stamford Zoning Regulations in several

respects, including its location in relation to various setback requirements, its height of eighteen feet, ten inches, and its elevation of 8.7

feet. Pursuant to the zoning regulations, the maximum height for an

accessory structure such as the cottage is fifteen feet and the minimum

elevation standard for such a structure is sixteen feet, as its location

makes it subject to certain zoning regulations applicable to flood prone

areas. Nevertheless, because the cottage had been built before the zoning

regulations at issue were adopted, it constituted a legally nonconforming

structure. Following the hurricane, the cost to repair the cottage

exceeded 50 percent of its value, and, in order for it to be reconstructed,

the zoning board required that B conform the cottage to certain regulations governing flood prone areas, including the minimum elevation

requirement. B applied for variances from the building height and setback requirements of the regulations because it would have been impossible for him to conform both to the fifteen foot maximum height allowed

for the cottage and to the minimum flood elevation of sixteen feet, and

because restoration of the cottage required that it be moved three feet

north in order to be constructed on soils that could support the minimum

flood elevation. The zoning board of appeals ultimately approved B’s

application for the variances, and the plaintiff appealed to the trial court.

The trial court dismissed the plaintiff’s appeal, concluding that the record

supported the zoning board’s determinations that the zoning regulations

applicable to flood prone areas imposed a hardship on B that justified

the granting of the variances and that the variances were the minimal

relief required to alleviate the hardship. The plaintiff, on the granting

of certification, appealed. Held:

1. The plaintiff could not prevail on his claim that B’s failure to begin

reconstruction of the cottage within twelve months of the hurricane

caused its legally nonconforming status to be terminated under article

IV, § 10 (C), of the zoning regulations: when, as in the present case, a

legally nonconforming building subject to zoning regulations applicable

to flood prone areas is damaged and the cost of repairs exceeds 50

percent of the value of the building, the minimum flood elevation 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), which

authorizes the reconstruction ‘‘as before’’ of buildings damaged in a

calamity within twelve months of the calamity; accordingly, article IV,

§ 10 (C), did not apply to the cottage because it would have been impossible for B to reconstruct the cottage ‘‘as before’’ without either conforming to the minimum elevation requirement or seeking a variance from

that requirement, as the purpose of the prohibition of the reconstruction

of a building that is nonconforming with the minimum flood elevation

requirement to its previous state if the cost of the repairs exceeds 50

percent of the value of the building was not to deprive the building
entirely of its legally nonconforming status but to ensure the maximum

possible compliance with the regulations applicable to flood prone areas;

moreover, the fact that the building cannot be reconstructed without

either complying with the minimum flood elevation requirement or

obtaining a variance from that requirement or obtaining a variance from

the height restriction did not mean that the reconstructed building must

comply with all other regulations with which it was previously nonconforming, and, accordingly, the cottage retained its status as a legally

nonconforming accessory structure with respect to the setback and

building height requirements in the regulations.

2. The trial court correctly determined that the zoning board of appeals

properly granted B’s application for variances from the setback requirements and the height restrictions in the regulations, the zoning board

having reasonably found that B established the existence of an unusual

hardship warranting approval of his application because strict enforcement of the regulations would have deprived him of his constitutionally

protected right to continue using the cottage, an existing, legally nonconforming accessory structure; moreover, this court rejected the plaintiff’s

claim that, when an applicant seeks a variance that will have the effect

of reducing a nonconformity of an existing, legally nonconforming building, the variance may not be granted unless the applicant reduces all

of the building’s nonconformities to the maximum extent possible, as

any reduction in nonconformity presumably could only benefit the zoning scheme.

(Two justices concurring separately in one opinion)

Argued January 15—officially released November 5, 2019

Procedural History

Appeal from the decision of the named defendant

granting the application for variances filed by the 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.

Affirmed.

Scott T. Garosshen, with whom were Brendon P.

Levesque and, on the brief, William I. Haslun II, for

the appellant (plaintiff).

James V. Minor, special corporation counsel, with

whom, on the brief, was Kathryn Emmett, director of

legal affairs, for the appellee (named defendant).

Peter M. Nolin, with whom were Jacqueline O. Kaufman and, on the brief, Timothy A. Smith, for the appellee (defendant Paul E. Breunich).
Opinion

VERTEFEUILLE, J. The issue that we must decide

in this appeal is whether the named defendant, the

Zoning Board of Appeals of the City of Stamford (zoning

board), properly granted the application of the 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 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 R10 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 fed-
eral 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 nonconforming. 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 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.’’ Florentine v. Darien,

142 Conn. 415, 425, 115 A.2d 328 (1955).

In the present case, the plaintiff relies on our cases

holding that ‘‘[d]isadvantage in property value or

income, or both, to a single owner of property, resulting

from application of zoning restrictions, does not, ordinarily, warrant relaxation in his favor on the ground of

. . . unnecessary hardship. . . . Financial considerations are relevant only in those exceptional situations

where a board could reasonably find that the application of the regulations to the property greatly decreases

or practically destroys its value for any of the uses

to which it could reasonably be put and where the

regulations, as applied, bear so little relationship to the

purposes of zoning that, as to particular premises, the

regulations have a confiscatory or arbitrary effect. . . .

Zoning regulations have such an effect in the extreme

situation where the application of the regulations renders the property in question practically worthless.’’

(Citation omitted; emphasis added; internal quotation

marks omitted.) Vine v. Zoning Board of Appeals, 281

Conn. 553, 561–62, 916 A.2d 5 (2007); see also E & F

Associates, LLC v. Zoning Board of Appeals, supra, 320

Conn. 20 (‘‘when a property would have economic value

even if the zoning regulations were strictly enforced,

the fact that a peculiar characteristic of the property

would make compliance with the zoning regulations

exceptionally difficult if the property were put to a more

valuable or desirable use does not constitute either an

‘exceptional difficulty’ or an unusual hardship’’). The

plaintiff contends that, if Breunich’s application for variances is denied and he is unable to rebuild the sea

cottage, he will still be able to use the four other dwelling units and various accessory structures that are

located on the property, and, therefore, the strict

enforcement of the setback and building height requirements of the zoning regulations would impose no

unusual hardship.
In addressing the plaintiff’s claim, however, it is

important to keep in mind the legal principle underlying

the general rule that enforcement of a regulation does

not create an unusual hardship warranting a variance if

the landowner retains a reasonable use of the property.

That underlying principle is that land use regulation is

constitutionally permissible as long as it does not

amount to practical confiscation or inverse condemnation of a property, and a confiscation or inverse condemnation ordinarily does not occur unless the landowner is deprived of any reasonable use of the property.

See Rural Water Co. v. Zoning Board of Appeals, 287

Conn. 282, 298, 947 A.2d 944 (2008) (‘‘ ‘[a]n ordinance

which permanently restricts the use of land for any

reasonable purpose . . . goes beyond permissible regulation and amounts to practical confiscation’ ’’); id.,

299 (‘‘an inverse condemnation occurs when . . .

application of the regulation amounted to a practical

confiscation because the property cannot be used for

any reasonable purpose’’). Thus, the tests for unusual

hardship and inverse condemnation are one and the

same. See Barton v. Norwalk, 326 Conn. 139, 148 n.6,

161 A.3d 1264 (2017) (‘‘[t]he unusual hardship test in

zoning variance cases and the substantial destruction

test in inverse condemnation cases require a showing

that the property cannot be utilized for any reasonable purpose’’).12

Just as a landowner has a constitutionally protected

right to use his property for some reasonable purpose,

however; see Rural Water Co. v. Zoning Board of

Appeals, supra, 287 Conn. 299; a landowner has a constitutionally protected property right to the continued

use of an existing, legally nonconforming building. See

Petruzzi v. Zoning Board of Appeals, 176 Conn. 479,

484, 408 A.2d 243 (1979) (‘‘ ‘[a] lawfully established nonconforming use is a vested right and is entitled to constitutional protection’ ’’). Accordingly, the deprivation of

that right by regulation would also constitute an inverse

condemnation, notwithstanding the fact that the landowner could still use the property for some other permitted or legally nonconforming purpose.13

The decision of the Commonwealth Court of Pennsylvania in Jenkintown Towing Service v. Zoning Hearing

Board, 67 Pa. Commw. 183, 446 A.2d 716 (1982), is

instructive on this issue. The court in that case noted

that, although ‘‘hardship clearly consists of the virtual

unusability of the land in its entirety for any permitted

use’’ if the regulations were strictly enforced and the

applicant has sought a variance in order to bring into

being a nonconforming use or building, in cases involving existing legally nonconforming uses or structures,

‘‘the land . . . already has utility.’’ (Emphasis added.)

Id., 192. The court then observed that, ‘‘because any

zoning ordinance provision is subject to the grant of a

variance in a proper case . . . such restrictions must
bow if adhering to them would threaten the continued

existence of the [preexisting] use [or structure] itself.’’

(Emphasis added.) Id., 193. As we have explained, this

is because such regulations would amount to an inverse

condemnation of the landowner’s vested property right

in the existing, legally nonconforming use or structure,

even if the landowner could use the property for some

other reasonable purpose.

None of the cases that the plaintiff cites in support

of his claim that Breunich was required to establish

that he could not use his property for any reasonable

purpose if the regulations were strictly enforced

involves an application for a variance in order to allow

the continuation of an existing, legally nonconforming

use or structure. Rather, in each case that he cites in

which a variance was found not to be warranted, the

applicant sought either to construct a new nonconforming structure or to expand an existing nonconforming

structure. See E & F Associates, LLC v. Zoning Board

of Appeals, supra, 320 Conn. 12 (applicant sought to

expand nonconforming building by adding second

story); Moon v. Zoning Board of Appeals, 291 Conn.

16, 18, 966 A.2d 722 (2009) (applicants sought to add

additional living space to second story of nonconforming building); Francini v. Zoning Board of Appeals, 228

Conn. 785, 787, 639 A.2d 519 (1994) (applicant sought to

build residence on nonconforming lot); Hyatt v. Zoning

Board of Appeals, 163 Conn. 379, 381, 311 A.2d 77 (1972)

(applicant sought to build second nonconforming building); Verrillo v. Zoning Board of Appeals, 155 Conn.

App. 657, 664, 111 A.3d 473 (2015) (applicant sought to

expand existing nonconforming building); Horace v.

Zoning Board of Appeals, 85 Conn. App. 162, 164, 855

A.2d 1044 (2004) (applicant sought to expand existing

nonconforming use); Munroe v. Zoning Board of

Appeals, 75 Conn. App. 796, 798, 818 A.2d 72 (2003)

(applicant sought to add second story to existing nonconforming building). In the present case, although conforming the sea cottage to the minimum flood elevation

requirement will increase its nonconformity with the

regulations governing building height, in contrast to

these cases, Breunich is not seeking to ‘‘expand’’ the

nonconforming building for his own personal benefit

or convenience but is seeking the variances in order to

comply with the minimum flood elevation requirement

of the regulations applicable to flood prone areas, which

is intended to reduce the safety and financial hazards

that nonconforming structures present both to landowners and to the general public in the event of a flood.

As we explained, the sea cottage is required to conform

to that requirement even though the building previously

was legally nonconforming. In the absence of either a

variance from the building height regulations or the

minimum flood elevation requirement, the sea cottage

cannot be rebuilt. Thus, the underlying purpose of the

variances is not to ‘‘expand’’ the nonconformities of
the sea cottage but merely to allow its continued use.

Accordingly, we find the cases that the plaintiff cites

to be inapposite.

On the basis of the foregoing, we conclude that the

zoning board reasonably found that Breunich established the existence of an unusual hardship warranting

approval of his application for variances because the

strict enforcement of the regulations would have

deprived him of his constitutionally protected right to

continue using the sea cottage, which is an existing,

legally nonconforming accessory structure. As we

explained, without variances in some form, Breunich

simply would be unable to reconstruct the sea cottage,

resulting in an inverse condemnation of his existing,

legally nonconforming use. In other words, it would

result in an unusual hardship. Such a result is precisely

what the zoning board’s authority to grant variances

was designed to circumvent. See Florentine v. Darien,

supra, 142 Conn. 425 (power to grant variances is

intended to ‘‘[furnish] elasticity in the application of

regulatory measures so that they do not operate in an

arbitrary or confiscatory and, consequently unconstitutional . . . manner’’).

To the extent that the plaintiff contends that it was

improper for the zoning board to have granted the variances from the regulations governing building height

and setbacks because those variances would have been

unnecessary if Breunich had sought a variance from

the minimum flood elevation requirement, we disagree.

First, considered in light of the compelling public interests that the minimum flood elevation requirement is

intended to protect, nothing in the record indicates that

conforming the sea cottage to that requirement would

entail an unusual hardship, thereby warranting a variance.14 Second, the plaintiff has cited no authority for

the proposition that a zoning board of appeals cannot

grant a variance from one regulation if granting a variance from another regulation would make the variance

from the first regulation unnecessary.

The plaintiff also claims that, to establish an unusual

hardship, Breunich was required to show that the hardship arose from some unique or peculiar characteristic

of his property. See, e.g., Moon v. Zoning Board of

Appeals, supra, 291 Conn. 24 (‘‘[a]n applicant for a 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’’ [emphasis added;

internal quotation marks omitted]); Francini v. Zoning

Board of Appeals, supra, 228 Conn. 791 (‘‘[i]t is well

settled that the hardship must be different in kind from

that generally affecting properties in the same zoning

district’’ [internal quotation marks omitted]); Plumb v.

Board of Zoning Appeals, 141 Conn. 595, 600, 108 A.2d
899 (1954) (‘‘[t]he hardship must be one different in

kind from that imposed upon properties in general by

the ordinance’’). The plaintiff contends that the sea

cottage has no such unique or peculiar characteristic,

but, to the contrary, its characteristics making full compliance with all zoning regulations difficult are shared

by ‘‘numerous coastal properties in Stamford,’’ many

of which were also damaged by Hurricane Sandy.15 Even

if we were to assume, however, that there is nothing

unique or peculiar about Breunich’s property that renders the strict application of the regulations unusually

harsh, and that the problems that he faces in reconstructing the sea cottage are shared by many other

owners of damaged buildings in flood prone areas, it

would then follow that the strict enforcement of the

regulations would also threaten to confiscate the other

damaged buildings and structures that, before being

damaged, were legally nonconforming with the minimum flood elevation requirements.16 The plaintiff has

cited no authority for the proposition that a variance

from a regulation may not be granted to a particular

landowner if the regulation has a confiscatory effect

not only on his property, but also on other existing,

legally nonconforming buildings and structures,

because the hardship does not arise from a peculiar or

unique characteristic of the landowner’s property.17 An

unconstitutional confiscation of property by regulation

does not become constitutional merely because the regulation affects other properties in the same way.

Accordingly, we reject this claim.

Finally, we address the plaintiff’s claim that the zoning board improperly granted Breunich’s application for

variances because the variances were not the minimum

relief required to alleviate the hardship. See, e.g., L &

G Associates, Inc. v. Zoning Board of Appeals, 40 Conn.

App. 784, 788, 673 A.2d 1146 (1996) (‘‘[b]ecause a variance affords relief from the literal enforcement of a

zoning ordinance, it will be strictly construed to limit

relief to the minimum variance which is sufficient to

relieve the hardship’’ [internal quotation marks omitted]). The plaintiff contends that the setback variances

that Breunich requested were not the minimum necessary to alleviate any hardship because he could conform

the sea cottage to all of the setback requirements by

moving it west five and one-half feet and north ten feet.

In support of this claim, the plaintiff cites Green Falls

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

App. 481, 484, 53 A.3d 273 (2012) (applicant sought

to build new single-family residence on lot), Jaser v.

Zoning Board of Appeals, 43 Conn. App. 545, 546, 684

A.2d 735 (1996) (applicants sought to construct new

single-family residence on lot), and L & G Associates,

Inc. v. Zoning Board of Appeals, supra, 786 (applicant

sought to construct new office building on property).

All of these cases, however, involved applications for

variances to build new nonconforming buildings.18 As
we indicated, the sea cottage is an existing, legally

nonconforming building, and the setback variances that

Breunich sought and that the zoning board granted will

allow the building to be moved to a less nonconforming

location. See footnote 14 of this opinion. The plaintiff

has cited no authority that convincingly supports the

proposition that, when an applicant seeks a variance

that will have the effect of reducing a nonconformity

of an existing, legally nonconforming building, the variance may not be granted unless the applicant reduces

all of the building’s nonconformities to the maximum

extent possible. Indeed, it would make little sense to

bar landowners from seeking a variance to reduce a

nonconformity of an existing building unless they

reduced that conformity—as well as all other nonconformities—to the maximum extent possible.19 Presumably, any reduction in nonconformity could only benefit

the zoning scheme. We therefore reject this claim.

For the foregoing reasons, we conclude that the trial

court correctly determined that the zoning board properly granted Breunich’s application for variances from

the regulations and, therefore, properly dismissed the

plaintiff’s appeal.

The judgment is affirmed.

In this opinion D’AURIA, MULLINS and KAHN, Js.,

concurred.

* This appeal originally was argued before a panel of this court consisting

of Chief Justice Robinson and Justices D’Auria, Mullins, Kahn and Ecker.

Thereafter, Justice Vertefeuille was added to the panel and has read the

briefs and appendices, and listened to a recording of oral argument prior

to participating in this decision.

1 The plaintiff appealed to the Appellate Court, and we transferred the

appeal to this court pursuant to General Statutes § 51-199 (c) and Practice

Book § 65-1.

2 The regulations have been amended since the events underlying the

present case. All references herein are to the regulations as adopted November 30, 1951, with subsequent amendments through December 31, 2015.

3 Although § 8-2 has been amended by the legislature several times since

the events underlying the present case; see, e.g., Public Acts 2017, No. 17-

155, § 2; those amendments have no bearing on the merits of this appeal.

In the interest of simplicity, we refer to the current revision of the statute.

4 The structure is within the VE and AE Flood Zones under Federal Emergency Management Agency (FEMA) standards, which are incorporated into

the regulations. See Stamford Zoning Regs., art. III, § 7.1 (B) (2) (2015)

(defining base flood elevation); id., § 7.1 (B) (20) (referring to FEMA’s flood

insurance rate map, which delineates ‘‘special flood hazard areas’’); id., § 7.1

(C) (1) (§ 7.1 of regulations, governing flood prone areas, applies to ‘‘all

areas of special flood hazard’’ within city); id., § 7.1 (C) (2) (special flood

hazard areas are based on base flood elevation data developed by FEMA).

Under FEMA standards, the minimum elevation for structures in the VE

Flood Zone is fifteen feet. Article III, § 7.1 (B) (32) of the Stamford Zoning

Regulations defines ‘‘[m]inimum [e]levation [s]tandard’’ as the minimum

required by the FEMA standards plus one foot.

5 Breunich also makes a passing reference to article IV, § 10 (B), of the

Stamford Zoning Regulations, which provides that ‘‘[t]he total structural

repairs and alterations that may be made in a structure which is nonconforming in use only shall not exceed [50] percent . . . of its replacement value

at the time of application for the first structural change, unless changed to

a conforming use.’’ The plaintiff also does not address this regulation at

any length but merely notes in a footnote in his reply brief that, assuming

that Breunich is correct that the regulation applies, he ‘‘did not request a

variance on the basis that his total repairs would exceed 50 percent of the
value of the cottage.’’ We address the effect of this regulation in footnote

13 of this opinion.

6 Article IV, § 10 (C), of the Stamford Zoning Regulations provides in

relevant part: ‘‘Any non-conforming building . . . which has been or may

be damaged by . . . flood . . . [or] act of God . . . may be reconstructed

and used as before, if reconstruction is started with[in] twelve . . . months

of such calamity . . . .’’

7 For purposes of this analysis, we assume, without deciding, that the

plaintiff is correct that, when article IV, § 10 (C), of the regulations applies

to a legally nonconforming structure that has been damaged by flood or

calamity, and the owner fails to start reconstruction within twelve months

of the calamity, the building loses its legally nonconforming status.

8 See Stamford Zoning Regs., art. III, § 7.1 (B) (43) (2015) (for purposes

of regulations governing flood prone areas, ‘‘[s]ubstantial [d]amage’’ is

defined as ‘‘damage . . . sustained by a structure, whereby the cost of

restoring the structure to its pre-damaged condition would equal or exceed

50 percent of the market value of the structure before the damage occurred’’);

id., art. III, § 7.1 (B) (44) (defining ‘‘[s]ubstantial [i]mprovement’’ to include

repairs ‘‘the cumulative cost of which equals or exceeds [50] percent . . . of

the market value’’ of structure); id., art. III, § 7.1 (D) (1) (requiring substantial

improvements to comply with certain regulations governing flood prone

areas); id. (requiring all substantial improvements within special flood hazard area to have lowest floor elevated to minimum elevation standard).

9

Indeed, the plaintiff makes no claim to the contrary. In response to the

defendants’ argument that article IV, § 10 (C), of the regulations does not

apply to the sea cottage because the building was required to conform to

current regulations governing minimum flood elevation, the plaintiff states

that the defendants are ‘‘accurate as far as [they go]. It is true that [the

regulations governing] substantial improvements [in flood prone areas] . . .

apply where the work to be done exceeds 50 percent of the structure’s

value.’’ The plaintiff then contends that the defendants fail to recognize that

compliance with these regulations is not categorically required but may be

subject to a variance.

10 Indeed, to interpret article IV, §10 (C), of the regulations to apply to

situations in which it would be virtually impossible for a landowner to begin

repairs of a legally nonconforming building that was damaged in a calamity

within twelve months of the damage would be of questionable constitutional

validity because it would be confiscatory. See part II of this opinion.

11 But see footnote 13 of this opinion.

12 We do not suggest that establishing an inverse condemnation is the

only way to establish an unusual hardship. Our cases indicate that an unusual

hardship may also be established when the strict enforcement of a zoning

regulation to a particular property would contribute so little to the goals

that the regulation was intended to achieve that it would be arbitrary.

See Vine v. Zoning Board of Appeals, supra, 281 Conn. 561 (hardship is

established ‘‘where the regulations, as applied, bear so little relationship

to the purposes of zoning that, as to particular premises, the regulations

have a confiscatory or arbitrary effect’’ [emphasis added; internal quotation

marks omitted]). It is clear, however, that an unusual hardship is established

if an inverse condemnation is established.

Although all members of this court agree that the trial court correctly

concluded that the variances were properly granted, there is disagreement

regarding the reasoning supporting that conclusion. Specifically, relying

heavily on treatises and cases from other jurisdictions, the concurrence

disagrees that the test for unusual hardship and the test for a regulatory

taking are the same, and contends that that is the case only when the

landowner claims that he will suffer a financial hardship if the zoning regulation is strictly enforced. As we indicated, we would agree that a landowner

is not required to establish a financial loss rising to the level of a regulatory

taking in order to obtain a variance if the landowner can establish that the

enforcement of the zoning regulation would be arbitrary in the sense that

it would not contribute meaningfully to the goals that the regulation was

intended to achieve. That is not the case here, however. Increasing the

height of the sea cottage to 27.9 feet, which is 12.9 feet above the maximum

allowed height of fifteen feet, will block the views of neighboring properties,

which is precisely what the maximum height regulation was intended to

prevent. Moreover, if the concurrence were correct that the sea cottage

lost its legally nonconforming status because it was more than 50 percent

destroyed—which we conclude that it did not; see footnote 13 of this opinion;

Breunich would be required to seek variances from all of the regulations
with which the sea cottage was nonconforming before its destruction, not

just those regulations with which the sea cottage is now even more nonconforming. Thus, Breunich would be required to obtain a variance from article

III, § 4 (AA) (2.2), of the regulations, which permits only one single family

detached dwelling per lot, so that he could maintain three dwelling structures

with a total of five dwelling units on the property, as well as two sheds and

a garage. Such a variance would clearly increase the population density of

the zone, which is precisely what the regulation is intended to prevent.

To the extent that the concurrence suggests that there are considerations

other than financial loss that can give rise to an unusual hardship warranting

a variance, even when granting the variance would have a negative impact

on the goals of the zoning scheme, it is entirely unclear to us what those

considerations might be or why the concurrence believes that they justify

the granting of the variance in the present case. Moreover, the concurrence

has not cited any authority for the proposition that a property owner’s loss of

the right to use the property in a particular manner has ever been considered

anything other than a reduction in the value of the property—in other words,

a financial loss—for zoning purposes in this state.

13 Although the plaintiff makes no claim that Breunich is prohibited from

rebuilding the sea cottage pursuant to article IV, § 10 (B), of the Stamford

Zoning Regulations, which provides that ‘‘[t]he total structural repairs and

alterations that may be made in a structure which is nonconforming in use

only shall not exceed [50] percent . . . of its replacement value at the time

of application for the first structural change, unless changed to a conforming

use’’; see footnote 5 of this opinion; there is authority for the proposition

that such regulations are constitutional because the destruction of more

than 50 percent of the value of a nonconforming building or a building with

a nonconforming use can deprive the owner of his vested right to continue

using the property for that purpose. See State v. Hillman, 110 Conn. 92,

107, 147 A. 294 (1929) (regulation that prohibited reconstruction of nonconforming building when more than 50 percent of building is destroyed was

constitutional as applied). The court in Hillman observed that ‘‘[t]he police

power has its limitations in the extent of the taking or the diminution of

the value of property affected. When it reaches a certain magnitude, in

most if not all cases there must be an exercise of eminent domain and

compensation to sustain the act. So the question depends upon the particular

facts.’’ (Internal quotation marks omitted.) Id., 106; see also Bobandal Realties, Inc. v. Worthington, 21 App. Div. 2d 784, 785–86, 250 N.Y.S.2d 575

(1964) (‘‘Ordinances using 50 [percent] of value or assessed value as a

criterion in determining whether an owner shall be permitted to reconstruct

a partly destroyed nonconforming building have been held not unreasonable

on their face . . . . The question whether an ordinance using 50 [percent]

of [value] as a criterion is unreasonable and confiscatory should not be

decided in a vacuum, but only with relation to a specific case in which facts

have been presented to show that in that case the application of such

criterion would destroy so great a part of the value of the nonconforming

property that it would be unreasonable and confiscatory . . . .’’ [Citations

omitted; emphasis in original; internal quotation marks omitted.]), aff’d, 15

N.Y.2d 788, 205 N.E.2d 685, 257 N.Y.S.2d 588 (1965). We note that the court

in Hillman concluded that enforcing the regulation at issue in that case did

not have a confiscatory effect after noting that there was no evidence that

there would be a significant ‘‘diminution in value of the property . . . .’’

State v. Hillman, supra, 107. Presumably, this was because the defendant

landowner could construct a conforming building on the property. Contrary

to the concurrence’s suggestion, we do not conclude that Hillman did not

involve the casualty doctrine. See footnote 5 of the concurring opinion.

Rather, we conclude that, under the casualty doctrine, the courts must

consider the specific facts of the case in determining whether a zoning

regulation that prohibits the reconstruction of a nonconforming building

that has been destroyed is constitutional as applied.

In the present case, we find the following circumstances to be relevant.

First, article IV, § 10 (C), of the regulations expressly allows the owner of

a nonconforming building that has been completely destroyed in a calamity

to reconstruct the building and use it as before. The record supports the

conclusion that Breunich would have taken advantage of that regulation

but for the fact that the regulations applicable to flood prone areas prohibited

him from doing so. Thus, if article IV, § 10 (B), of the regulations were

applied to the sea cottage, the minimum flood elevation requirement would

have the effect of depriving Breunich of the clear right to rebuild the sea

cottage that he otherwise would have enjoyed. Cf. Piccolo v. West Haven, 120
Conn. 449, 453–54, 455–56, 181 A. 615 (1935) (when owners of nonconforming

building that had been destroyed by fire sought variance to replace destroyed

building with building that would have increased nonconformities, and owners could have reconstructed original building within one year under town

regulations, variance was not warranted because any hardship was caused

by owners’ own failure to reconstruct original building within one year).

Second, the record supports the conclusion that, in light of the governing

regulatory requirements, the need to redesign the sea cottage to conform

to those requirements, and the need to obtain variances, Breunich proceeded

as expeditiously as reasonably possible to take steps to rebuild the sea

cottage. Finally, unlike in Hillman, there is no evidence in the present case

that Breunich would be able to construct a conforming structure of some

type on the property if the variances were denied, and he would therefore

lose the entire value of the sea cottage. We recognize that there is authority

for the proposition that, when a property contains multiple structures, and

a nonconforming structure is more than 50 percent destroyed, prohibiting

the rebuilding of the structure may not be confiscatory under certain circumstances because the landowner still has a reasonable use of the property.

See State ex rel. Covenant Harbor Bible Camp v. Steinke, 7 Wis. 2d 275,

283, 96 N.W.2d 356 (1959) (as applied to destroyed nonconforming building

on property containing multiple buildings, 50 percent rule may be reasonable

if building contained separate use, but may not be reasonable if building

was ‘‘used jointly with other buildings in a single [nonconforming] use upon

one premises’’). In our view, however, it would make no sense to conclude

that it is confiscatory to prohibit the reconstruction of a destroyed nonconforming building when the building is the only building on the property and

it cannot be replaced by a conforming building, but if an identical building

on a property containing multiple buildings is destroyed and cannot be

replaced, reconstruction can constitutionally be prohibited. The loss is the

same in both cases. We conclude that, under these specific circumstances

it would be confiscatory to prohibit Breunich from rebuilding the sea cottage

pursuant to article IV, § 10 (B), of the regulations.

The concurrence disagrees with this analysis and, again relying on treatises

and case law from another state, contends that this court should consider

only the extent to which a nonconforming building has been destroyed in

determining whether the owner continues to have the right to use the

property for that purpose, and whether the landowner can replace the

nonconforming building with a conforming building is irrelevant. This court

expressly recognized in Hillman, however, that, when a nonconforming

structure has been destroyed, whether the application of a zoning regulation

that prevents the rebuilding of the structure would be constitutional

‘‘depends upon the particular facts’’ of the case. (Internal quotation marks

omitted.) State v. Hillman, supra, 110 Conn. 106. This court in Hillman

found it significant that there was no evidence in that case that prohibiting

the defendant landowner from rebuilding the destroyed nonconforming

buildings, which had been used in connection with the business of ‘‘storing,

washing, repairing, burning, and steaming barrels of various kinds and

descriptions which had contained commodities such as fish, lard, crisco, oil,

cider, pork, etc.’’; id., 96–98 (preliminary statement of facts and procedural

history); would cause a significant ‘‘diminution in value of the property’’;

id., 107; presumably because the defendant could replace the destroyed

buildings with a conforming building or buildings of comparable value.

The concurrence also contends that prohibiting Breunich from rebuilding

the sea cottage would not be unconstitutional because Breunich can still

use his property for other purposes. In support of this contention, the

concurrence cites Murr v. Wisconsin, U.S. , 137 S. Ct. 1933, 198 L.

Ed. 2d 497 (2017), for the proposition that the ‘‘test for regulatory taking

requires us to compare the value that has been taken from the property

with the value that remains in the property . . . .’’ (Internal quotation marks

omitted.) Id., 1943–44. The court in Murr, however, was not addressing the

problem that is before this court, namely, whether prohibiting the rebuilding

of a nonconforming building that has been destroyed violates the constitution when the landowner cannot replace the building with another structure

that is conforming. Rather, the court was addressing the question of whether

it should treat adjacent parcels of land that are owned by the same landowner

as a single parcel or as distinct parcels in determining whether a taking has

occurred. See id., 1941. The court declined to adopt a categorical answer

to that question but repeatedly emphasized that ‘‘[a] central dynamic of the

[c]ourt’s regulatory takings jurisprudence . . . is its flexibility’’; id., 1943;

and that ‘‘courts must consider a number of factors’’ on a case-by-case basis
when identifying the property that was taken by regulation and the property

that remains. Id., 1945. Thus, Murr is not inconsistent with Hillman. We

therefore conclude that, when a nonconforming structure has been

destroyed and a regulation prohibits the rebuilding of the structure, the

difference between the value that was taken from the property, i.e., the

value of the destroyed nonconforming structure, and the value that remains,

i.e., the value of the structure, if any, that the landowner can build to

replace the destroyed structure, is a factor that the courts may consider in

determining whether the strict enforcement of the regulation would have

a confiscatory effect.

The concurrence insists that, in making the determination as to whether

a taking has occurred, the only consideration is whether ‘‘the property,’’

i.e., the legally defined parcel of land on which a structure stood, still has

value. See footnote 5 of the concurring opinion. Murr makes clear, however,

that, for purposes of takings jurisprudence, the meaning of the term ‘‘the

property’’ is flexible. See Murr v. Wisconsin, supra, 137 S. Ct. 1943.

14 To the extent that it might be claimed that the fact that the soils under

the sea cottage would not support the elevated structure would constitute

an unusual hardship justifying such a variance, the response to that claim

is that that any such hardship could be alleviated merely by moving the sea

cottage three feet north.

To the extent that the plaintiff contends that, by submitting a request to

move the footprint of the sea cottage three feet north, thereby necessitating

the variance from the setback requirements, Breunich lost his constitutionally protected right to continue to use the sea cottage as a legally nonconforming building, we disagree. It is well settled that a variance may be

granted to continue a nonconforming use if the variance will reduce the

nonconformity of the building or use. See Vine v. Zoning Board of Appeals,

supra, 281 Conn. 562 (‘‘the reduction of a nonconforming use to a less

offensive prohibited use may constitute an independent ground for granting

a variance’’). The only effect of moving the sea cottage would be to reduce

the rear yard setback nonconformity. Accordingly, we can see no reason

why, if the zoning board would have been warranted in granting a variance

to the regulation governing building height to accommodate the minimum

flood elevation requirement if it had been possible to elevate the sea cottage

in its current location, it was barred from granting the application for variances because the sea cottage had to be moved three feet, thereby reducing

its nonconformity.

15 The authors of the white paper prepared by the Center for Energy &

Environmental Law at the University of Connecticut School of Law have

observed that applicants seeking variances from zoning regulations governing building height in order to conform to the minimum flood elevation

requirement must ‘‘demonstrate that the variance is required because of

some peculiar characteristic of the property. [This] can be [a] difficult

[requirement] to meet when the applicant is one of many similarly situated

floodplain property owners.’’ W. Rath et al., supra, p. 3. The authors also

note that height restrictions on buildings have the effect of ‘‘squeezing [such]

property owners between two different regulatory requirements.’’ Id.

16 The concurrence would conclude that the sea cottage is unique because

it was ‘‘a nonconforming accessory structure located in a highly restrictive

flood zone subject to the mandatory flood regulations.’’ The plaintiff’s point,

however, is that many of the buildings that were destroyed by Hurricane

Sandy cannot be rebuilt to conform to the flood regulations without obtaining

a variance from building height restrictions. See W. Rath et al., supra, app.

A, p. 7, quoting Stamford Zoning Regs., art. III, § 3 (A) (16) (b) (2016)

(when primary residence is reconstructed to comply with minimum elevation

standards, maximum height of new building may be only up to five feet

higher than height allowed by zoning regulations). Accordingly, we fail to

perceive how the sea cottage was unique. To the extent that the concurrence

contends that the plaintiff’s situation is different because the sea cottage

was an accessory structure, and, therefore, in contrast to the application

of a regulatory prohibition on rebuilding to primary residences that cannot

be rebuilt without obtaining a variance, the application of such a regulation

to the sea cottage does not constitute a taking; see footnote 13 of this

opinion; the concurrence appears to admit through the back door what it

refuses to admit through the front door, namely, the principle that a regulation that prohibits the reconstruction of a nonconforming building that has

been destroyed creates a hardship if the building cannot be replaced with

a conforming building, notwithstanding the fact that the parcel of property

on which the structure was located still has value.
17 We note parenthetically that we are somewhat puzzled by the line of

cases holding that a variance is not warranted if the subject property does

not have a unique or peculiar characteristic that renders the strict application

of the zoning regulations unusually harsh. We have held that the fact that

a property does have such a unique or peculiar characteristic, standing alone,

does not justify the granting of a variance in the absence of proof that the

regulation is confiscatory. See E & F Associates, LLC v. Zoning Board of

Appeals, supra, 320 Conn. 20 (‘‘when a property would have economic value

even if the zoning regulations were strictly enforced, the fact that a peculiar

characteristic of the property would make compliance with the zoning regulations exceptionally difficult if the property were put to a more valuable

or desirable use does not constitute either an ‘exceptional difficulty’ or an

unusual hardship’’). On the other hand, it is clear to us that, if a regulation

has a confiscatory effect on a property, it does not follow from the fact that

that effect does not arise from a unique characteristic of the particular

property that no hardship warranting a variance exists. Accordingly, it would

appear to us that the question of whether the regulation has a confiscatory

effect is dispositive, and it is unclear to us how the unique characteristics

of a particular property come into play when determining whether an unusual

hardship exists. Because this question is not before us, however, we leave

it for another day.

18 The plaintiff also cites Hescock v. Zoning Board of Appeals, 112 Conn.

App. 239, 962 A.2d 177 (2009), in support of the proposition that the requirement that a variance provide only the minimal relief required to alleviate

the hardship also applies to variances that will reduce the nonconformity

of an existing nonconforming building. His reliance on this case, however,

is misplaced. In Hescock, the defendant landowners owned a legally nonconforming house that was damaged in a hurricane and that no longer complied

with various building and habitability codes and requirements. See id., 252.

The house was located 44 feet landward of the mean high tide, in legal

nonconformance with a zoning regulation requiring a minimum distance of

100 feet. See id., 242. The landowners wanted to build a new house that

would be located 47 feet landward of the mean high tide and sought a

variance to authorize that nonconformity. See id. The Appellate Court

rejected the plaintiffs’ contention that the defendant zoning board of appeals

had failed to consider a zoning regulation requiring that ‘‘the granted variance

be minimal’’ on the ground that the board had considered the fact that ‘‘the

new house would be as far from the water as possible’’ given the configuration of the lot when it granted the variance. Id., 255. In addressing the

plaintiffs’ contention that no hardship had been established, the Appellate

Court observed that a reduction in nonconformity can also justify a variance,

and concluded that the new house would reduce the existing nonconformities because it would be further from the water than the damaged house

and it would eliminate nonconformance with all of the other flood zone

regulations. See id., 260–61. In the present case, the plaintiff relies on the

Appellate Court’s conclusion that the variance was the minimum relief

required because ‘‘the new house would be as far from the water as possible’’;

id., 255; to support his claim that the zoning board could not grant the

variances unless Breunich established that he was reducing all of the sea

cottage’s nonconformities to the maximum extent possible. The Appellate

Court in Hescock, however, did not clearly distinguish the variance principles

that apply to new construction from the principles that apply to legally

nonconforming buildings. Indeed, the court did not cite any cases at all

in support of the proposition that the landowners were required to establish

that the variance was the ‘‘minimum necessary’’ to relieve hardship. Rather,

the court appears to have assumed in that portion of its decision that the

application for a variance was for ‘‘new construction’’; id., 254; and not for

the repair or modification of an existing, legally nonconforming building.

In contrast, in the portion of its decision addressing the plaintiffs’ claim

that no hardship existed, the court clearly assumed that the landowners

were continuing the use of a legally nonconforming building. See id., 261

(‘‘the new construction would reduce and eliminate existing nonconformities’’). Accordingly, Hescock provides little guidance in the present case.

19 We recognize, of course, that, if a landowner sought a variance to

increase the nonconformity of an existing, legally nonconforming building,

the landowner would be required to establish that the variance was the

minimum relief necessary to alleviate the hardship.