Turek v. Zoning Bd. of Appeals of Milford

196 Conn.App. 122

229 A.3d 737

Jack E. TUREK et al.

v.ZONING BOARD OF APPEALS OF the CITY OF MILFORD

AC 41824

Appellate Court of Connecticut.

Argued November 18, 2019

Officially released February 25, 2020

Kevin J. Curseaden, for the appellees (plaintiffs).

Matthew B. Woods, for the appellant (defendant).

Alvord, Devlin and Pellegrino, Js.

ALVORD, J.

The defendant, the Zoning Board of Appeals of the City of Milford (board), appeals from the judgment of the trial court sustaining the appeal filed by the plaintiffs, Jack E. Turek and Donna Weaver, and reversing the decision of the board that the plaintiffs were not entitled to a variance. On appeal, the board claims that the trial court erroneously sustained the appeal, and causes us to consider (1) whether the plaintiffs demonstrated a legally cognizable hardship, and (2) whether the plaintiffs' proposal qualifies under the exception to the hardship requirement set forth in Adolphson v. Zoning Board of Appeals , 205 Conn. 703, 710, 535 A.2d 799 (1988), and its progeny.¹ We reverse the judgment of the trial court.

The relevant facts and regulatory background are as follows. The plaintiffs own property located at 59 Hillside Avenue in Milford (property). The property measures approximately 4076 square feet and is situated between Long Island Sound to the east and Hillside Avenue to the west. The property, which is narrow in shape,² slopes downward from 13 feet above sea level at Hillside Avenue to between 8.3 and 8.9 feet above sea level at the shore. The property was originally created in 1901. The city of Milford (city) first enacted zoning regulations (regulations) in 1930. The property is located within the R-5 residential zone. The regulations require a minimum of 5000 square feet of land on each building lot located in an R-5 zone.³ See Milford Zoning Regs., art. III, § 3.1.4.1. Accordingly, the lot is a legal nonconforming lot. See Milford Zoning Regs., art. XI, § 11.2. The regulations also specify that in an R-5 zone the maximum building height permitted is thirty-five feet and the maximum lot coverage permitted is 65 percent. Milford Zoning Regs., art. III, § 3.1.4.1. Building height is defined in the regulations in part as "[t]he vertical distance measured in feet from the average existing level of the ground surrounding the building or addition thereto and within ten (10) feet thereof up to the midpoint height of a pitched roof or up to the level of the highest main ridge or peak of any other type of structure, or the total number of stories in a building including basements and/or half-stories."⁴ Milford Zoning Regs., art. XI, § 11.2.

"Building Height Within A Flood Hazard Area" is separately defined in the regulations as "[t]he building height as defined above, but including all portions of a building situated below the regulatory flood protection elevation and all portions of basements or cellars that extend above the finished grade adjacent to the building." Milford Zoning Regs., art. XI, § 11.2. The average elevation of the property is 10 feet and 8.4 inches above sea level.

Prior to Hurricane Sandy in late October, 2012, there existed on the property a single-family residence. The two-story residence, which was more than 100 years old, measured 1500 square feet. There were two other structures, a detached garage and a shed, on the property. Hurricane Sandy destroyed the residence, which was later demolished, and since that time the lot has remained vacant.

The entire property, which is split between the AE Flood Zone and the VE Flood Zone, is within a special flood hazard area. The regulations incorporate by reference the areas of special flood hazard identified by the Federal Emergency Management Agency (FEMA) and the accompanying Flood Insurance Rate Maps (FIRM).⁵ Milford Zoning Regs., art. V, § 5.8.2.⁶ The Code of Federal Regulations (code) defines "[a]rea of special flood hazard" in relevant part as "the land in the flood plain within a community subject to a 1 percent or greater chance of flooding in any given year...."

44 C.F.R. § 59.1. The regulations also identify the VE Flood Zone as a coastal high hazard area. Milford Zoning Regs., art. V, § 5.8.2, and art. XI, § 11.2. The code defines "coastal high hazard area" as "an area of special flood hazard extending from offshore to the inland limit of a primary frontal dune along an open coast and any other area subject to high velocity wave action from storms or seismic sources." 44 C.F.R. § 59.1 ; see also Milford Zoning Regs., art. XI, § 11.2 (containing similar definition and stating that "[t]he area is designated on a FIRM as Zone VE or V").

The regulations provide that "[a]reas of special flood hazard are determined utilizing the base flood elevations (BFE) provided on the flood profiles in the Flood Insurance Study (FIS)⁷ for a community. BFEs provided on a [FIRM] are only approximate (rounded up or down) and should be verified with the BFEs published in the FIS for a specific location." (Footnote added). Milford Zoning Regs., art. V, § 5.8.2. "Base flood" is defined in both the code and the regulations as "the flood having a one percent chance of being equaled or exceeded in any given year." 44 C.F.R. § 59.1 ; see also Milford Zoning Regs., art. XI, § 11.2. "Base flood elevation" is defined in the regulations as "[t]he elevation of the crest of the base flood or 100-year flood. The height in relation to mean sea level expected to be reached by the waters of the base flood at pertinent points in the floodplains of coastal and riverine areas."⁸ Milford Zoning Regs., art. XI, § 11.2. The base flood elevation for both the AE Flood Zone and VE Flood Zone where the property is located is thirteen feet.

The National Flood Insurance Program, administered by FEMA, "makes federal flood insurance available to communities that impose a minimum standard of floodplain management regulation, generally imposed through zoning 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 ...." (Emphasis in original; internal quotation marks omitted.) Mayer-Wittmann v. Zoning Board of Appeals , 333 Conn. 624, 635, 218 A.3d 37 (2019), quoting 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 February 18, 2020). Specifically, the code requires that "all new construction and substantial improvements of residential structures within Zones A1–30, AE and AH zones on the community's FIRM have the lowest floor (including basement) elevated to or above the base flood level ...." 44 C.F.R. § 60.3 (c) (2). Under the regulations, the board may not accept any application to perform new construction of a residence "with a lowest floor elevation below the regulatory flood protection ...." Milford Zoning Regs., art. IX, § 9.2.3 (3). Additionally, § 25-68h-2 of the Regulations of Connecticut State Agencies, addressing floodplain management standards, requires an additional one foot of freeboard,⁹ specifically mandating that new structures designed for human habitation located within the floodplain be "elevated with the lowest floor one foot above the level of the base flood."

With that factual and regulatory background in mind, we turn to the procedural history of the present case. After Hurricane Sandy destroyed their home, the plaintiffs sought to construct a new home on the vacant property. On May 26, 2015,¹⁰ the plaintiffs filed an application for variances from the building height and setback requirements of the regulations¹¹ and submitted plans for the proposed residence.

The proposed 1600 square foot house would be four stories, with a garage located on the lowest level and storage and utilities located on the highest level. The proposed house would be set further back from Long Island Sound than the previous house and would be entirely removed from the VE Flood Zone. It also would cover less of the lot than the previous structures.

As noted previously, building height as provided for in the regulations is measured from "the average existing level of the ground surrounding the building," in this case, 10 feet and 8.4 inches above sea level, to the midpoint of the pitched roof. Milford Zoning Regs., art. XI, § 11.2. As the trial court noted, were the proposed house not required to be elevated, the proposed building, when measured from the average elevation to the midpoint of the pitched roof, would have been 34 feet and 11.5 inches high. FEMA regulations, however, require residences in an AE-13 Flood Zone to be elevated to base flood elevation (thirteen feet above mean sea level), and state regulations require an additional one foot of freeboard. See footnote 9 of this opinion. With the base of the proposed building located at fourteen feet above sea level, the proposed house, when measured from the average elevation, would be 38 feet and 3.1 inches high. Thus, the plaintiffs sought a variance from the thirty-five foot height restriction.

The board held a public hearing on the plaintiffs' application on June 9, 2015. Counsel for the plaintiffs summarized the claimed hardship, including the topography of the property and applicable federal and state elevation requirements. He highlighted other communities' amendments to zoning regulations to take into account base flood elevations in determining building height. He also argued that the proposed house would reduce nonconformities in relation to the previous house and submitted...