196 Conn.App. 122
Conn. App. Ct.2020Background
- Plaintiffs owned a narrow, legal-nonconforming lot in Milford where Hurricane Sandy destroyed a 2‑story, ~1,500 sq ft house; the lot has remained vacant.
- The lot lies in FEMA AE and VE flood zones; the base flood elevation (BFE) is 13 ft MSL and state rules require +1 ft freeboard, so new residences must be elevated.
- Milford measures building height from average existing ground level (~10 ft 8.4 in); elevating the new house to meet flood rules increased measured height from ~34'11.5" to ~38'3", exceeding the 35' limit.
- Plaintiffs applied for variances (including height) proposing a ~1,600 sq ft, four‑story residence that would reduce other nonconformities and move development farther from the VE zone.
- The Zoning Board of Appeals denied the height variance; the Superior Court sustained plaintiffs’ appeal, finding unusual hardship (destruction + flood-elevation requirements) and invoking the Adolphson exception (reduction of nonconformities).
- The Appellate Court reversed: plaintiffs failed to prove a legally cognizable hardship and Adolphson did not permit creating a new height nonconformity as a tradeoff for reducing other nonconformities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs proved a legally cognizable "unusual hardship" for a height variance | Hardship arises from lot topography, split AE/VE flood zones, small/wide nonconforming lot, and federal/state elevation mandates after Sandy | Hardship is self‑created or stems from plaintiffs’ preference to build a larger/3‑story design; they can build a conforming house without the height variance | No. Plaintiffs failed to show hardship originating in the zoning regulation; inability to build the desired house is "personal disappointment," not legal hardship |
| Whether Adolphson exception (granting variance to reduce/eliminate nonconformity) applies | New plan reduces/removes several prior nonconformities (garage, shed, lot coverage, VE exposure), so variance justified despite new height nonconformity | Adolphson allows reduction/elimination of an existing nonconformity but does not permit creating a new nonconformity (height) as a tradeoff | No. Adolphson and its progeny do not support creating a new height nonconformity in exchange for reducing others; exception inapplicable |
| Whether the board stated its official reasons for denial | Plaintiffs pointed to board discussion noting "height is an issue" and other members’ remarks | Board’s member comments before the vote are not a formal collective statement; no official, collective reasons were entered | Court must search the record for support; but here the denial is supported because plaintiffs failed to meet their burden, so reversal is warranted |
Key Cases Cited
- Adolphson v. Zoning Board of Appeals, 205 Conn. 703 (1988) (variance may be justified to reduce or eliminate a preexisting nonconforming use)
- Vine v. Zoning Board of Appeals, 281 Conn. 553 (2007) (Adolphson exception applied where variance reduced nonconformity)
- Hescock v. Zoning Board of Appeals, 112 Conn. App. 239 (2009) (affirming variance where new construction lessened nonconformities and improved flood compliance)
- Jaser v. Zoning Board of Appeals, 43 Conn. App. 545 (1996) (no hardship where a conforming structure could be built; desire for a particular house is not hardship)
- Mayer-Wittmann v. Zoning Board of Appeals, 333 Conn. 624 (2019) (discussing the unusual‑hardship standard for variances in the floodplain context)
- Verrillo v. Zoning Board of Appeals, 155 Conn. App. 657 (2015) (applicant bears burden to prove hardship; personal preference is not sufficient)