CT Supreme Court Holds Zoning Board of Appeals Acted Properly in Granting Variance for Structure Destroyed by Hurricane Sandy

This post was authored by Raymond Fragola ’20 Touro Law Center

The defendant, Paul Breunich owns property at 106 Carter Drive in the City of Stamford. The defendant has a primary residence and multiple accessory structures, which includes a sea cottage. The sea cottage is the accessory structure at the center of this case. During Hurricane Sandy, the sea cottage was damaged and has remained uninhabited since that time. The defendant applied for, and was granted variances from the Zoning Board of Appeals of the City of Stamford (The ZBA) for among other variances; to increase the height of the sea cottage from eighteen feet, ten inches to twenty-seven feet, nine inches where fifteen feet is permitted and for a twenty-six foot rear yard setback where thirty feet is required. After hearing arguments from both the plaintiff and defendant, the ZBA issued a decision granting the defendant’s variances finding that the strict application of the zoning ordinance would deprive the defendant of reasonable use of his buildings. Further, the ZBA found these were the minimum variances necessary, and the granting of these variances would not result in injury to the neighborhood.

When a Zoning Board states the reasons for its action, the question for the court is whether the reasons given are reasonable supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations. Verillo v. Zoning Board of Appeals, 155 Conn.App. 657, 678, 111 A.3d 473 (2015). It is well settled that courts are not to substitute their judgement for that of the board, and that the decisions of local boards will not be disturbed as long as honest judgement has been reasonably made after a full hearing. Id. The burden of proof to show the board acted improperly is on the plaintiffs. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). In the case at bar, the plaintiff claimed the ZBA acted improperly because the defendant failed to prove a unique hardship, the variance is the result of personal preference and not necessity and lastly that the defendant failed to prove the variance requested was the minimal relief necessary.

The court held that because the defendant’s property was located in both the VE and AE flood zones, it would be impossible for the defendant to meet the new flood zone restrictions without further increasing the height of the sea cottage. The court held that there was sufficient information in the record to demonstrate that the ZBA could show that the need to meet the new flood zone requirements were sufficiently unique to grant the variance in this case. Second, the court held that the increased nonconformity was necessary as it was the only way for the defendant to comply with both the FEMA and the City of Stamford flood regulations. The fact that the defendant was not increasing the habitable space of the sea cottage was cited by the ZBA and the court in demonstrating the variance was out of necessity. Lastly, the court held that the ZBA granted the minimum variance necessary as the plaintiff requested variances which satisfied the minimum requirements of the new flood regulations and further, that other non-conforming structures were to be relocated into compliance as a condition of the variance approval.

Given the ZBA members discussed on the record that the defendant requested the minimum variance required, the living space of the sea cottage did not increase, the defendant was required to bring nonconforming structures into conformity, and the variances requested were not self-created, but unique to the property of the defendant due to new flood zone regulations; the court held that the ZBA did not act unreasonably, arbitrarily, or in abuse of its discretion in granting the defendant’s variance and dismissed the appeal of the plaintiff.

Mayer-Wittman v. Zoning Board of Appeals of the City of Stamford, 333 Conn. 624 ( 11/5/2019).