333 Conn. 624

Conn.

2019

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—officially released November 5, 2019

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

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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 ordеr 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:

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 casе, 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.
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, аfter 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 areа 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 аt 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 seа 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 zоning 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 relаtively 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 а 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 thе 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 triаl 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 regulatiоn 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 regulatiоn 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 continuе 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 cottаge 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 propеrly 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.

Notes

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.

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.

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.

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.

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.

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 . . . .”

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

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).

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 tо a variance.

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.

But see footnote 13 of this opinion.

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 (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.

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 propositiоn 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 (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.) ; see also (“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 wоuld be unreasonable and confiscatory . . . .” [Citations omitted; emphasis in original; internal quotation marks omitted.]), aff’d, . 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 . . . .” . 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 effеct of depriving Breunich of the clear right to rebuild the sea cottage that he otherwise would have enjoyed. Cf. (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 (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 оf 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.) . 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.“; (preliminary statement of facts and procedural history); would cause a significant “diminution in value of the property“; ; 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 , 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.) . 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 . 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“; ; 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. . 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 .

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 (“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.

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.”

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.

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 (“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.

The plaintiff also cites , 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 . 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 . 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 . 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. . 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 . 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“; ; 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“; ; 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 (“the new construction would reduce and eliminate ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍existing nonconformities“). Accordingly, Hescock provides little guidance in the present case.

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.