As part of Halloran Sage’s continuing efforts to inform our clients of significant developments in the law, this is an update about a recent Connecticut Supreme Court decision dealing with the interplay among zoning variances, nonconforming structures, and flood-zone reconstruction requirements.

The case name is Mayer-Wittmann v. Zoning Board of Appeals of the City of Stamford (SC 19972, November 5, 2019), and it involved one of the many coastal structures seriously damaged by superstorm Sandy. Stamford’s zoning regulations require that, whenever any structure located within a special flood hazard area, as designated on a Flood Insurance Rate Map prepared by the Federal Emergency Management Agency (FEMA), is damaged and the cost to restore it would exceed fifty percent of its value, the rebuilt structure must comply with FEMA regulations. Many such coastal buildings are nonconforming with respect to FEMA’s current first-floor elevation requirements.

The defendant landowner, Paul Breunich, owned one such nonconforming building that had served as an accessory dwelling on his property and that was ravaged by storm Sandy. Although the zoning regulations nominally would have allowed him to rebuild the dwelling ‘‘as before’’ within twelve months of the calamity, doing so would have meant that the building would, again, be exposed to the risk of coastal flooding the FEMA regulations were designed to avoid. On the other hand, complying with the FEMA requirements would have made it impossible for him to satisfy the building height restrictions in the zoning regulations. Therefore, Mr. Breunich sought a variance of the height restrictions from the defendant Zoning Board of Appeals. He also applied for a three-foot setback variance in order to locate the rebuilt structure on more stable soils. The variances were granted.

The plaintiff, a neighboring property owner, appealed the granting of the variances to the Superior Court, which upheld the ZBA’s decision. On the plaintiff’s further appeal, the Connecticut Supreme Court addressed the following issues: (1) whether the nonconforming status of the accessory dwelling ended because Mr. Breunich did not comply with a regulation permitting landowners to reconstruct a damaged nonconforming building only within twelve months of the calamity; (2) whether Mr. Breunich failed to prove a legitimate hardship; (3) whether the variances satisfied the “uniqueness” standard in light of the fact that numerous structures in the area were similarly affected by the flood-zone regulations; and (4) whether the relief Mr. Breunich sought was more than the minimum remedy needed to cure the hardship.

As to the first issue, the Court held that the accessory dwelling did not lose its nonconforming status merely because it could not be rebuilt “as before.” The heart of the Court’s reasoning is set forth in the following excerpt from its opinion:

“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.”

Regarding the second issue, the plaintiff argued that Breunich did not establish a hardship because the inability to rebuild the damaged accessory dwelling would not have deprived him of the reasonable use of his property (Breunich had four other dwelling units and various other accessory structures on the property). The Court disagreed, saying, “Just as a landowner has a constitutionally protected right to use his property for some reasonable purpose, . . . a landowner has a constitutionally protected property right to the continued use of an existing, legally nonconforming building.” Accordingly, the Court held that the deprivation of that right by regulation would constitute an inverse condemnation (i.e., a “regulatory taking”) regardless of whether other reasonable uses were available. Applying previously decided principles, the Court held that the issuance of a variance is appropriate to prevent such a “taking.”

With respect to “uniqueness,” the plaintiff cited a line of cases in which Connecticut courts had held that a hardship must be “different in kind from that imposed upon properties in general by the ordinance.” The Court distinguished those cases because they did not involve a potential “taking.” It reasoned that, when an unconstitutional deprivation of property is threatened by a regulation, it makes no difference how many other parcels are similarly affected.

Finally, the plaintiff argued that the variances were not the minimum necessary to allow the structure to be rebuilt because (1) Mr. Breunich would not have had to seek variances of the height and setback restrictions if he had simply applied for a variance of the FEMA elevation regulations; and (2) Mr. Breunich could have complied with the setback requirements by choosing a different location. The Court rejected the first claim, noting the public health and safety objectives served by the elevation regulations and noting that Mr. Breunich was, in fact, able to comply with those regulations. As to the second point, the Court distinguished between situations involving new construction and those involving nonconforming structures. Essentially, it held that the minimum-needed-relief rule should apply only to new construction: “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. Presumably, any reduction in nonconformity could only benefit the zoning scheme.”

The Mayer-Wittman case is particularly intriguing because it involved  a 4 – 2 split in a six-member panel. The rulings described above came from the majority opinion. Although the other two justices agreed (concurred) with the result – namely, that the granting of the variances was proper – they disagreed with several of the majority’s conclusions. First, they pointed to the Court’s decision in the 1929 case of State v. Hillman, 110 Conn. 92 (1929). In that case, the Court had rejected a landowner’s claim that he had a constitutional entitlement to rebuild certain structures that had been more than 50 percent destroyed by fire. The concurring justices in Mayer-Wittman noted that the Hillman case had gone on to become one of the most frequently cited cases for the “casualty doctrine,” which is essentially the notion that “takings” concerns do not arise from the loss of buildings through no fault of the zoning regulations. In the words of the concurring justices, “Indeed, the more severe the loss caused by the casualty to the building itself, the stronger the case becomes for application of the casualty doctrine because its applicability depends on the loss being caused by a force other than the zoning regulation.”

The concurring justices also disagreed with the majority’s reasoning “that the statutory hardship standard is effectively ‘one and the same’ as the legal standard establishing a constitutional violation under the takings clause.”  They believed that that standard should be applied only when a landowner was claiming that the variance was necessary to avoid a financial or economic hardship, and that there other forms of hardship which could be proved.

The dispute between the majority and concurring justices was played out not only in the principal text of their respective opinions, but also in a series of remarkably lengthy footnotes. For example, in footnote 7 of the concurrence, the two minority justices argue that a finding of a constitutional taking cannot be based on the loss of one building if the relevant property would retain substantial value without it.

The split decision suggests that Mayer-Wittman may not be the final word on the matters discussed by the concurring justices. Still, the majority’s decision will be considered binding on all Superior Courts and on the Appellate Court unless and until the Supreme Court chooses to reconsider its holdings in a later case.

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