We think the Connecticut Supreme Court's opinion in Mayer-Whitman v. Zoning Board of Appeals, No. SC 19972 (Nov. 5, 2019) is worth a read, even if it does not break new ground, because it does a good job of explaining some basic principles.
Quick story: Breunich had a house. It didn't conform to height, setback, and flood area requirements. That's because it was build prior to the regulations were adopted. Dirt lawyers call this a "nonconforming use." Civilians call it being "grandfathered." Hurricane Sandy damaged the house, but the cost of repairs was more than 50% of the home's value. And you know what that meant: Breunich could not rebuild without a variance.
He applied for a variance to rebuild the home in pretty much the same configuration it was before, asserting hardship because it would be impossible for the building to conform to both the height above-flood requirements, and the zoning's height limitation. The planning board was on board: it unanimously agreed, and granted the variance. End of story? Not quite. Breunich's neighbor appealed, asserting the variance should not have been granted because Breunich had not shown the required "hardship."
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.
Slip op. at 6. (With a neighbor like these, who needs enemies?)
The trial court disagreed with the neighbor, and so did the Supreme Court. You can read the details of why for yourselves -- and should -- but here are the highlights.
Variances are for unusual circumstances, and are not simply "let's not apply the regulations to the property" (hello, U.S. Supreme Court). There has to be "unusual hardship" resulting from the application of the regulations. The point of this is to keep the government from having to deal with a takings claim if a property owner who cannot use their property because of strict application of the regulation sues. So we have always viewed variances simply as takings safety valves.
The Connecticut court re-emphasized that point, noting:
[I]t 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 regulation 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’’).
Slip op. at 13.
Here, because Breunich was asking for a variance to rebuild the home in its former state (and not, for example, to make significant additions; in dirt lawyer's parlance, to "expand" the nonconforming use), the denial of a variance would mean that he could not rebuild at all. That, the court concluded, would "result[] in an inverse condemnation of his existing, legally nonconforming use. In other words, it would result in an unusual hardship." Slip op. at 14. Granting the variance averted a successful takings claim.
Two justices concurred in the judgment, but disagreed with the takings reasoning. They concluded that the owner had no constitutional property interest in rebuilding a nonconforming structure which is destroyed by a storm. The "casualty doctrine" posits that the owner of a grandfathered structure may lose use and value of the structure if it is substantially destroyed by a storm or other casualty event, but that if so, it is not the new regulations which have taken the property, but the casualty event.
The disagreement between the majority and the concurring justices seem to be about what "property" was at stake: was it only the nonconforming building? If so as the majority concluded, then yes, refusal to issue the variance would result in a Lucas wipeout of use. If, however, the "property" meant both the nonconforming structure and the land itself as the concurring justices argued, then we're back in Penn Central territory and maybe denial of permission to rebuild the structure does not result in a taking.
Mayer-Wittman v. Zoning Bd. of Appeals, No. SC 19972 (Conn. Nov. 5, 2019)