Mayer-Wittmann v. Zoning Bd. of Appeals of Stamford

• Decision Date: 05 November 2019
• Docket Number: SC 19972
• Citation: 218 A.3d 37,333 Conn. 624
• Court: Connecticut Supreme Court
• Parties: Karl MAYER-WITTMANN, Executor (Estate of Gerda Mayer-Wittmann) v. ZONING BOARD OF APPEALS OF the CITY OF STAMFORD et al.

333 Conn. 624

218 A.3d 37

Karl MAYER-WITTMANN, Executor (Estate of Gerda Mayer-Wittmann)

v.ZONING BOARD OF APPEALS OF the CITY OF STAMFORD et al.

SC 19972

Supreme Court of Connecticut.

Argued January 15, 2019

Officially released November 5, 2019

Scott T. Garosshen, with whom were Brendon P. Levesque, Hartford, and, on the brief, William I. Haslun II, Greenwich, for the appellant (plaintiff).

James V. Minor, special corporation counsel, with whom, on the brief, was Kathryn Emmett, director of legal affairs, for the appellee (named defendant).

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

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

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 R-10 single family district, low density zone. Breunich's property is nonconforming to the Zoning Regulations of the city of Stamford (regulations)² but, because the property's structures, including the structure the parties refer to as the "sea cottage," were built before the zoning regulations were adopted in 1951, they are legally authorized nonconforming structures under the regulations. See Stamford Zoning Regs., art. IV, § 10 (A) (2015); see also General Statutes § 8-2 (a)³ (zoning "regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations"). The sea cottage, the building at issue in the present case, is an accessory structure containing a single dwelling unit that is nonconforming in several respects. Specifically, the sea cottage is located twenty-three feet from the rear yard property line, in violation of the thirty foot minimum required by article III, § 4 (AA) (2.4) (e), of the regulations, and it is located four feet, six inches from the side yard property line, in violation of the ten foot minimum required by article III, § 4 (AA) (2.4) (e). In addition, the lowest horizontal structural member of the sea cottage has an elevation of 8.7 feet, although the minimum elevation standard for the structure is sixteen feet under the zoning regulations applicable to flood prone areas.⁴ Finally, the sea cottage has a height of eighteen feet, ten inches, whereas article III, § 6 (D), of the regulations provides that detached accessory structures may not exceed fifteen feet in height.

The sea cottage was severely damaged by Hurricane Sandy in late October, 2012, and Breunich wishes to rebuild it. Because the cost of repairs exceeds 50 percent of the sea cottage's value, however, the zoning board and Breunich agree that the sea cottage must conform to certain current regulations governing flood prone areas, including the minimum elevation requirement, notwithstanding the fact that the sea cottage is a legally nonconforming structure. See Stamford Zoning Regs., art. III, § 7.1 (B) (43) (2015) (for purposes of zoning regulations governing flood prone areas, "[s]ubstantial [d]amage" is defined as "damage ... sustained by a structure, whereby the cost of restoring the structure to its pre-damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred"); id., art. III, § 7.1 (B) (44) (defining "[s]ubstantial [i]mprovement" to include repairs "the cumulative cost of which equals or exceeds [50] percent ... of the market value" of structure); id., art. III, § 7.1 (D) (1) (requiring substantial improvements to comply with certain regulations governing flood prone areas); id. (requiring all substantial improvements within special flood hazard area to have lowest floor elevated to minimum elevation standard).⁵

As we indicated, under the regulations applicable to flood prone areas, the minimum flood elevation requirement for the lowest horizontal structural member of the sea cottage is sixteen feet above the base flood elevation, whereas the maximum height allowed in the R-10 zone for accessory structures is fifteen feet. See id., art. III, §§ 6 (D) and 7.1. Because the lowest horizontal structural member of the sea cottage, which is at ground level, is currently 8.7 feet above base flood elevation, elevating the sea cottage by 7.3 feet to satisfy the minimum flood elevation requirement would leave only 7.7 feet of buildable vertical space if the structure also were required to conform to the building height requirement. Accordingly, it would be impossible for the sea cottage to conform to both requirements. Moreover, because the soils on which the sea cottage is currently standing cannot support the foundation that would be required to elevate the sea cottage to the minimum flood elevation, restoration of the sea cottage requires moving it three feet to the north. Accordingly, Breunich applied for variances from the building height and setback requirements of the regulations.

The planning board unanimously recommended that the zoning board approve Breunich's application for variances. After a hearing at which both Breunich and a representative of the plaintiff appeared, the zoning board granted Breunich's application subject to certain restrictions that are not at issue in this appeal. The plaintiff then appealed to the trial court, claiming, inter alia, that the zoning board improperly granted the variances because Breunich had not established that, without them, he would be deprived of the reasonable use of his property, as is required to establish a hardship, or that the variances were the minimum relief necessary. In addition, the plaintiff claimed that any hardship was "personal and self-inflicted" because Breunich failed to rebuild the sea cottage within twelve months of the hurricane. Specifically, he contended that Breunich could have rebuilt the sea cottage pursuant to article IV, § 10 (C), of the regulations,⁶ which authorizes the owner of a nonconforming building that has been damaged by flood or other calamity to reconstruct and use the building as before within twelve months of the damage, and that his failure to do so terminated the legal nonconforming status of the sea cottage on October 29, 2013, one year after it was damaged in the hurricane.

The trial court concluded that the zoning board's determinations that the regulations applicable to flood prone areas imposed a hardship on Breunich that justified granting the variances and that the variances were the minimal relief required to alleviate the hardship were supported by the record. The court also agreed with Breunich's claim that the zoning board could have granted the variances on the ground that the variances reduced the sea cottage's nonconformities. Accordingly, the court dismissed the plaintiff's appeal.

On appeal to this court, the plaintiff renews his claims that the zoning board improperly granted the variances because Breunich had not established a hardship by showing that enforcement of the regulations would deprive him of all reasonable use of his property or render his lot completely unusable, and the variances were not the minimal relief required to alleviate any hardship. In addition, the plaintiff again contends that Breunich is barred by article IV, § 10 (C), of the regulations from rebuilding the sea cottage because its legally nonconforming status has terminated. We conclude that the sea cottage retains its status as a legally nonconforming accessory structure and that the zoning board properly granted the variances on the ground that the enforcement of the regulations would create a hardship.

I

Because the question of whether the sea cottage retains its status as a legally nonconforming structure has bearing on the question of whether the zoning board properly granted the variances, we first address the plaintiff's contention that that status terminated one year after the sea cottage was damaged by the hurricane pursuant to article IV, § 10 (C), of the regulations. The defendants contend that that provision does not apply to the sea cottage because the "fundamental predicate" that it was possible, as a matter of law, for the sea cottage to be "reconstructed and used as before" it was damaged; see Stamford Zoning Regs., art. IV, § 10 (C) (2015); without any need to apply for variances, has not been met.⁷ We agree with the defendants.

"Because the interpretation of the regulations presents a question of law, our review is plenary.... Additionally, zoning regulations are local legislative enactments ... and,...