Lane v. Cashman

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THOMAS W. LANE, ZONING ENFORCEMENT
OFFICER OF THE TOWN OF CLINTON
v. JEFFREY S. CASHMAN ET AL.
(AC 38290)
Keller, Prescott and Beach, Js.
Syllabus
The plaintiff zoning enforcement officer of the town of Clinton sought a
permanent injunction to prohibit the defendant property owners from
keeping cows on their premises without a permit, and a mandatory
injunction to require the defendants to remove a metal corral from the
street line setback and to keep any permitted livestock in an appropriate
building. The plaintiff previously had issued to the defendants two writ-
ten orders to discontinue those activities and uses of their property.
The parties had discussions after the issuance of the first order to
discontinue, and the defendants moved the cows into areas that met
the setback requirements, but thereafter moved them back so that they
continued to violate that first order to discontinue. The defendants did
not appeal to the town Zoning Board of Appeals within fifteen days of
the issuance of either order to discontinue, as required by statute (§ 8-
7). The defendants filed a counterclaim and two special defenses alleging
that the activities at issue were lawful nonconforming farming uses
of their property and, thus, that they were entitled to constitutional
protection of those uses, which existed prior to the amendment of the
town’s zoning regulations in 2012 that the plaintiff sought to enforce.
The trial court granted the plaintiff’s motion to strike the counterclaim
and special defenses, concluding that they were legally insufficient
because the defendants had failed to exhaust their administrative reme-
dies by appealing to the board. The defendants thereafter filed three
special defenses, the first two of which alleged that the activities at
issue were lawful nonconforming uses of their property, and the third
of which alleged municipal estoppel. In response to a request to revise
by the plaintiff, the defendants deleted the first two special defenses,
and revised their third special defense to include claims of municipal
estoppel and that the defendants’ farming activities at their property
were lawful pursuant to statute (§ 19a-341). The trial court granted the
plaintiff’s motion to strike the revised third special defense, concluding
that it was improper because it alleged a preexisting nonconforming
use, which the court previously had stricken. The trial court also granted
three motions that the plaintiff had filed to preclude evidence at trial to
challenge the validity of the orders to discontinue, to preclude evidence
pertaining to the defense of municipal estoppel, and to preclude evidence
that would prove that the farming uses of the property were lawful,
nonconforming uses. Following a trial to the court, the trial court ren-
dered judgment for the plaintiff, from which the defendants appealed
to this court, claiming that the trial court improperly struck their revised
third special defense and improperly granted the plaintiff’s motions in
limine. Held:
1. The defendants could not prevail on their claim that the trial court improp-
erly struck their revised third special defense and thereby prohibited
them from demonstrating that they had a legally protected nonconform-
ing right to use their property as a farm: the defendants’ constitutional
challenge to the plaintiff’s activities did not excuse their failure to avail
themselves of the administrative appeal process that was available to
them, as nothing in the record suggested that the relief sought by the
defendants could not have been obtained by resort to the administrative
remedy that they ignored, and the defendants did not demonstrate that
the board was unable to grant them any appropriate relief or to determine
whether the plaintiff properly found that a nonconforming use did not
exist on their property; moreover, the defendants did not present any
authority to support their assertion that the question of whether any
constitutionally protected nonconforming use of their property existed
was beyond the scope of the board and, thus, constituted an exception
to the exhaustion doctrine that permitted them to bypass available
administrative relief, as the defendants chose not to appeal within the
time period set by the board, they had ample opportunity to demonstrate
to the board that the farming uses of their property were nonconforming
uses and presented no compelling reasons why that issue was not the
proper subject of such an appeal, and nothing in the record suggested
that the defendants could not have brought a timely appeal before the
board while continuing to negotiate with the plaintiff in an effort to
resolve the dispute.
2. The defendants’ claim that the trial court improperly granted the plaintiff’s
motions to preclude certain evidence was unavailing, the defendants
having failed to adequately analyze how that court’s rulings likely
affected the result of the trial: the defendants did not refer to any portion
of the record for details concerning the excluded evidence or to any
proffer they made to the trial court concerning evidence that would
have been relevant to understanding their historic use of the premises,
as well as the gravity and wilfulness of their zoning violation, they did
not point to any zoning regulation to support a determination that their
historic use of the premises was lawfully nonconforming, and they did
not demonstrate how any excluded evidence would have proven a lack
of wilfulness on their part; moreover, the record reflected undisputed
facts, such as the defendants’ admitted failure to exhaust their adminis-
trative remedies and their admitted violation of multiple zoning regula-
tions, that supported the trial court’s determination that injunctive relief
was warranted.
Argued October 18, 2017—officially released January 30, 2018
Procedural History
Action for a permanent injunction to prohibit the
defendants from conducting certain activities in viola-
tion of the zoning regulations of the town of Clinton,
and for other relief, brought to the Superior Court in
the judicial district of Middlesex, where the defendants
filed a counterclaim; thereafter, the court, Domnarski,
J., granted the plaintiff’s motion to strike; subsequently,
the court, Aurigemma, J., granted the plaintiff’s motion
to strike; thereafter, the plaintiff withdrew the com-
plaint in part; subsequently, the court, Aurigemma, J.,
granted the plaintiff’s motion to substitute Eric Knapp
as the plaintiff; thereafter, the court, Aurigemma, J.,
granted the plaintiff’s motions to preclude certain evi-
dence; subsequently, the matter was tried to the court,
Aurigemma, J.; judgment for the plaintiff, from which
the defendants appealed to this court. Affirmed.
Edward M. Cassella, for the appellants (defendants).
Sylvia K. Rutkowska, for the appellee (plaintiff).
Opinion
KELLER, J. The defendants, Jeffrey S. Cashman and
Patricia Cashman, appeal from the judgment of the trial
court rendered in favor of the plaintiff, Eric Knapp, the
zoning enforcement officer for the town of Clinton.1
The plaintiff brought the underlying action against the
defendants to enforce orders to discontinue alleged
zoning violations occurring at the defendants’ property
in Clinton. The defendants claim that the court erred
in (1) striking their special defenses related to noncon-
forming uses and (2) granting the plaintiff’s motions in
limine. We affirm the judgment of the trial court.
In his original complaint dated September 6, 2012,
the plaintiff alleged that the defendants, who are the
owners of 66 River Road in Clinton, were in violation
of several Clinton zoning regulations by virtue of their
keeping and raising cows without a permit, constructing
a metal corral within fifty feet of the street line and
within thirty-five feet of the southeast property line,
and utilizing the metal corral as a structure or enclosure
in which to keep the cows.2 The plaintiff alleged that,
on January 26, 2012, he issued a warning of violation
to the defendants with respect to their keeping of cows
on the property without a permit and that, on March
13, 2012, he issued a warning of violation to the defen-
dants with respect to their placement of the metal corral
within the minimum setback requirements and the
keeping of cows in the metal corral. The plaintiff further
alleged that, on April 16, 2012, he issued to the defen-
dants an order to discontinue their uses of the premises
that violated the applicable zoning regulations, that the
defendants did not file an appeal from the order within
fifteen days of the issuance of the order, and that the
defendants had failed to comply with the order.3 In
his prayer for relief, the plaintiff sought, inter alia, a
permanent injunction prohibiting the defendants from
keeping cows on the subject premises without a permit;
a mandatory injunction requiring the defendants to
remove the metal corral from the street line setback
and to keep any permitted livestock in an appropriate
building, stable, or enclosure; and civil penalties author-
ized by General Statutes § 8-12 for the defendants’ fail-
ure to comply with the order to discontinue.
In their answer dated November 5, 2012, the defen-
dants admitted their ownership of the subject premises
and, with respect to the remainder of the allegations
set forth in the original compliant, either denied the
allegations or left the plaintiff to his proof. In a special
defense dated November 5, 2012, the defendants alleged
in relevant part that ‘‘[t]he complained of activities were
nonconforming uses that predate the zoning laws the
plaintiff is trying to enforce.’’4 Also, in a counterclaim
dated November 5, 2012, the defendants alleged that the
plaintiff, by bringing ‘‘these complaints’’ against them,
engaged in ‘‘extreme and outrageous’’ conduct that
caused the defendants ‘‘extreme emotional distress’’;
the plaintiff, ‘‘[b]y filing these groundless complaints,’’
committed intrusions of a ‘‘highly offensive’’ nature
against the defendants; and that the plaintiff had
engaged in professional malpractice that caused the
defendants to suffer damages. The defendants sought,
inter alia, money damages and ‘‘[a] court order requiring
. . . [the plaintiff] to cease harassing, selective enforce-
ment of the zoning regulations against . . . [the
defendants].’’
The plaintiff filed a ‘‘motion to dismiss and/or strike’’
with respect to the defendants’ counterclaim and spe-
cial defense. The plaintiff argued that the counterclaim
and special defense ‘‘merely seek to contest the validity
of a zoning order issued pursuant to General Statutes
§ 8-12, from which the [defendants] did not timely
appeal pursuant to General Statutes § 8-7. Their failure
to exhaust that administrative remedy leaves this court
without subject matter jurisdiction over their special
defense and counterclaim.’’ Alternatively, the plaintiff
argued that each counterclaim count ‘‘[failed] to state
a claim upon which relief can be granted under the
facts alleged.’’
Over the defendants’ objection, and after hearing
argument on the motion, the court, Domnarski, J., by
order dated May 10, 2013, granted the plaintiff’s motion.
In striking the special defense, the court reasoned that
it was ‘‘legally insufficient’’ because the defendants
failed to exhaust their administrative remedies. In dis-
missing ‘‘[a]ll counts of the counterclaim,’’ the court
likewise relied on the fact that the defendants had failed
to exhaust their administrative remedies, noting that
‘‘[i]n the counterclaim counts, the defendants seek a
collateral attack on a zoning determination that they
did not appeal from.’’ On June 3, 2013, the defendants,
pursuant to Practice Book § 6-15, filed a notice of intent
to appeal from Judge Domnarski’s May 10, 2013 dis-
missal of their entire counterclaim ‘‘until a final judg-
ment rendered in said matter disposes of the case for
all purposes and as to all parties.’’
In the absence of an objection, on July 3, 2013, the
plaintiff filed a request for leave to file an amended
complaint and an amended complaint for the purpose
of incorporating allegations of additional zoning viola-
tions at the subject premises. The amended complaint
added an additional count to the cause of action. In
this second count, the plaintiff sought enforcement with
respect to an order to discontinue dated November
15, 2012. In count two, the plaintiff alleged that the
defendants engaged in multiple activities on the subject
premises in violation of the Clinton zoning regulations.
Specifically, the plaintiff alleged that the defendants
‘‘have sold, and continue to sell, firewood and mulch,
or otherwise maintain a retail establishment on the
premises’’; ‘‘have brought, and continue to bring, wood,
brush, logs, wood chips, branches, and/or leaves onto
the site from outside sources to process into firewood
and mulch, or otherwise manufacture or process goods,
on the premises’’; ‘‘have participated, and continue to
participate, in the wholesale of mulch on the premises’’;
‘‘have stored, and continue to store, heavy equipment,
trucks, and small equipment and machinery associated
with businesses being conducted at the site on the prem-
ises’’; ‘‘have stockpiled, and continue to stockpile, wood
materials, including wood, wood chips and compost,
beyond what is required for personal use on the prem-
ises and in contact with vegetation’’; ‘‘have parked, and
continue to park, several commercial vehicles which
exceed the maximum vehicle weight limit on the prem-
ises’’; ‘‘have parked, and continue to park, more than
one commercial vehicle within the vehicle weight limit
on the premises’’; ‘‘have stockpiled and stored, and con-
tinue to stockpile and store, materials and equipment
outside on the premises, including mulch, logs, fire-
wood, log splitters, wood chippers, grinders, vehicles,
loaders, and light and heavy construction equipment’’;
‘‘have stored, and continue to store, more than two
unregistered vehicles on the premises, including a rec-
reational vehicle, a tractor for a tractor trailer, a dump
truck, and an SUV’’; ‘‘have constructed and maintained,
and continue to maintain, a shed on the premises with-
out a permit’’; ‘‘have kept, and continue to keep, chick-
ens and ducks on the premises without a permit and
in excess of a total of ten’’; ‘‘have conducted, and con-
tinue to conduct, a farming operation of raising, keeping
and caring for livestock, poultry and ducks on the prem-
ises without a permit or special exception’’;5 and have
‘‘kept, and continue to keep, livestock on the premises
without any covered watertight container or contain-
ment on site for manure.’’
The plaintiff alleged that all of these activities violated
specific zoning regulations, all of which were cited in
the complaint; that he issued the defendants a warning
of violation on October 18, 2012; that he issued the
defendants an order to discontinue on November 15,
2012; that the defendants failed to comply with the
order to discontinue; and that the defendants did not
file an appeal from the order to discontinue within
fifteen days of the issuance of that order.6 Moreover, the
plaintiff alleged that on March 13, 2013, the defendants
notified him ‘‘that they intended to continue to regrind
and sell wood chips from the premises,’’ and that their
conduct constituted a wilful failure to comply with the
order to discontinue.
In his amended complaint seeking enforcement of
both orders to discontinue, the plaintiff sought perma-
nent and mandatory injunctive relief related to the
defendants’ activities on the premises, civil penalties
for the defendants’ wilful failure to comply with the
orders to discontinue dated April 16, 2012, and Novem-
ber 15, 2012, and further just and equitable relief
deemed appropriate by the court.
The defendants filed an answer to the amended com-
plaint dated August 22, 2013. Therein, the defendants
generally denied the substantive allegations in the
amended complaint, or left the plaintiff to his proof.
Additionally, the defendants raised three special
defenses. In the first special defense, the defendants
alleged that, to the extent that the plaintiff alleged that
they used the subject premises as a farm, such use
was a legally permissible nonconforming use of the
premises.7 In the second special defense, the defendants
alleged that, to the extent that the plaintiff alleged that
they used the premises as a commercial nursery opera-
tion, such use was a legally permissible nonconforming
use of the premises.8 In the third special defense, the
defendants, claiming that the plaintiff’s conduct led
them to believe that their activities at the subject prem-
ises were legally permissible, alleged a defense of
municipal estoppel.
Subsequently, on September 6, 2013, the plaintiff filed
a request to revise in which he requested that the defen-
dants delete the first and second special defenses in
their entirety and, with respect to the third special
defense, state the special defense more particularly. In
his request to revise, the plaintiff asserted that the first
two special defenses were legally improper because
they previously had been stricken by Judge Domnarski.
Thereafter, on November 22, 2013, the defendants
deleted the first and second special defenses in their
entirety and repleaded the third special defense.
Following the revision, on December 24, 2013, the
plaintiff moved to strike the repleaded third special
defense in its entirety on the grounds that it failed to
state a claim upon which relief could be granted and
was, in part, unresponsive to the request to revise inas-
much as it injected into the special defense a new claim
that appeared to challenge the validity of the orders,
specifically, that the defendants’ use of the subject
premises was lawful pursuant to General Statutes § 19a-
341.9 The defendants filed an opposition to the motion
to strike the third special defense. After the court, Auri-
gemma, J., heard argument on the motion, on May 21,
2014, it granted the motion. In granting the motion, the
court determined, first, that the defendants had failed
to allege sufficient facts to support a claim of municipal
estoppel because they had failed to allege that the plain-
tiff had induced the defendants to engage in the activi-
ties at issue at the subject premises. The court
determined, second, that, in their revised answer, the
defendants improperly had included revisions that had
not been requested by the plaintiff in his request to
revise and which were unrelated to the special defense
of municipal estoppel.10 Also, with respect to the addi-
tion of paragraph 10 of the revised third special defense,
which raised a claim that was based on § 19a-341, the
court determined that it was improper because it
‘‘alleges preexisting nonconforming use, which has pre-
viously been stricken by this court.’’
Additionally, prior to the commencement of the trial,
the plaintiff filed five motions in limine to preclude the
defendants from presenting evidence for the purpose
of (1) contesting the validity of the orders to discontinue
dated April 16, 2012, and November 15, 2012; (2) proving
a defense of municipal estoppel or laches; (3) demon-
strating that relevant actions or decisions had been
undertaken or made by any Clinton individuals or agen-
cies other than the Clinton zoning authority; (4) demon-
strating facts related to police reports and ‘‘claims of
false or illegal entries into the record (specifically the
zoning office ‘street’ file) by the plaintiff as zoning
enforcement officer’’; and (5) proving a defense of non-
conforming farm use of the subject premises. The defen-
dants objected to these motions. The court expressly
granted the first, second, fourth, and fifth of these
motions, but a ruling on the third motion, related to
evidence concerning other agencies or individuals, does
not appear in the record.
Prior to the hearing, the parties entered into a joint
stipulation of facts, dated April 28, 2015, as follows:
‘‘(1) The defendants . . . purchased the [subject
premises] . . . and are the current owners.
‘‘(2) The premises is located within a R-80 residential
zoning district.
‘‘(3) The defendants have kept, and continue to keep,
cows on the premises . . . .
‘‘(4) The defendants have constructed a metal corral
within fifty feet from the street line and thirty-five feet
from the southeast property line. . . .
‘‘(5) On April 16, 2012, the plaintiff issued to the
defendants an order to discontinue the keeping of cows
within a metal corral, which was constructed and
located within the minimum front yard setback for the
R-80 zoning district (50 feet) and the minimum side
property line setback for the R-80 zoning district (35
feet).
‘‘(6) The defendants did not file an appeal from the
order to discontinue to contest its validity within fifteen
(15) days after the issuance of said order to discontinue
pursuant to . . . General Statutes §§ 8-6 and 8-7 and
the rules of the Zoning Board of Appeals of the Town
of Clinton [board] . . . establishing a fifteen (15) day
appeal period. . . .
‘‘(7) The defendants have sold, and continue to sell,
firewood and mulch on the premises.
‘‘(8) On October 18 and November 15, 2012, section
24.1.21 [of the Clinton zoning regulations] stated that
retail establishments, as a permitted use, were prohib-
ited in the R-80 district.
‘‘(9) The defendants have brought, and continue to
bring, wood, logs and wood chips onto the premises
from outside sources to process into firewood and
mulch.
‘‘(10) The defendants have participated, and continue
to participate, in the wholesale of mulch on the
premises.
‘‘(11) On October 18 and November 15, 2012, section
24.1.61 [of the Clinton zoning regulations] stated [that]
manufacturing, processing or assembly of goods, as a
permitted use, is prohibited in the R-80 district.
‘‘(12) On October 18 and November 15, 2012, section
24.1.62 [of the Clinton zoning regulations] stated [that]
warehousing and wholesale businesses, as a permitted
use, are prohibited in the R-80 district.
‘‘(13) The defendants have stored, and continue to
store, heavy equipment, trucks, small equipment and
machinery associated with the business being con-
ducted at the site on the premises.
‘‘(14) The defendants have stockpiled, and continue
to stockpile, wood materials, including wood, wood
chips and compost.
‘‘(15) On October 18 and November 15, 2012, section
24.1.76 [of the Clinton zoning regulations] stated [that]
storage of materials, which is dangerous due to explo-
sion, extreme fire hazard and radioactivity, beyond
what is required for person[al] residential use, as a
permitted use, is prohibited in the R-80 district.
‘‘(16) The defendants have parked, and continue to
park, several vehicles, including two dump trucks, two
mason trucks, a 3500 Dodge pickup and a six wheel
tanker truck on the premises.
‘‘(17) On October 18 and November 15, 2012, section
24.1.70 [of the Clinton zoning regulations] stated [that]
contractor’s businesses, associated building and stor-
age yards, as permitted uses, are prohibited in the R-
80 district.
‘‘(18) On October 18 and November 15, 2012, section
26.1.4 (d) (1) stated that parking of commercial vehicles
in excess of one and one-half ton gross vehicle weight,
as an accessory use, is prohibited in the R-80 district.
‘‘(19) The defendants have stockpiled and stored, and
continue to stockpile and store, materials and equip-
ment outside on the premises, including mulch, logs,
firewood, a log splitter, wood chippers, vehicles and
loaders.
‘‘(20) On October 18 and November 15, 2012, section
26.1.4 (m) [of the Clinton zoning regulations] stated
[that] outside storage areas, as an accessory use, shall
not extend into the areas required for setbacks from
property line or residential district boundary lines; and
section 26.1.4 (m) (1) [of the Clinton zoning regulations]
stated [that] any permitted outside accessory storage
areas shall be enclosed except for necessary access
drive, by building and/or fence, walls, embankments or
evergreen shrubs or trees so as to screen the storage
area[s] from view from any other lot or from any street.
‘‘(21) The defendants have kept, and continue to keep,
chickens and ducks on the premises in excess of ten.
‘‘(22) On October 18 and November 15, 2012, section
24.1.43 [of the Clinton zoning regulations] stated that
chickens or other poultry, as a permitted use, are not
to exceed a total of ten (10) on a lot.
‘‘(23) The defendants have conducted, and continue
to conduct, a farming operation of raising, keeping and
caring for livestock, poultry and ducks on the premises.
‘‘(24) On November 15, 2012, the plaintiff issued to the
defendants an order to discontinue, listing numerous
violations of the Clinton zoning regulations with activi-
ties on the site . . . .
‘‘(25) The defendants did not file an appeal from the
order to discontinue to contest its validity within fifteen
(15) days after the issuance of said order to discontinue
pursuant to . . . General Statutes §§ 8-6 and 8-7 and
rules of the [board] . . . section IV, establishing a fif-
teen (15) day appeal period. . . .
‘‘(26) On March 13, 2013, the defendants notified the
plaintiff that they intended to continue to regrind wood
chips and sell wood chips from the premises.
‘‘(27) On March 28, 2013, the plaintiff, through coun-
sel, issued to the defendants a letter advising them that
the importation and processing of wood materials is a
violation of the acts prohibited under section 24.1.61
of the Clinton zoning regulations and the order to dis-
continue dated November 15, 2012.’’ (Citations
omitted.)
The matter was tried before the court, Aurigemma,
J., on April 28, 2015. The court heard testimony from
Lane, Knapp, and Jeffrey Cashman. Additionally, the
parties presented several exhibits. On July 30, 2015, the
court issued a memorandum of decision by which it
rendered judgment in favor of the plaintiff, thereby
enforcing the plaintiff’s orders of April 16, 2012, and
November 15, 2012. In its memorandum of decision,
the court set forth the parties’ stipulation of facts. Addi-
tionally, the court found that, after the plaintiff issued
the April 16, 2012 order, which described the defen-
dants’ right to appeal, ‘‘the parties had discussions, and
the defendants agreed to move the cows into the areas
that met the setback requirements. The defendants did
relocate the cows, but only for a short period of time,
[before they] moved them back so that they continued
to violate the April 16, 2012 order to discontinue.
‘‘On February 1, 2012, the plaintiff issued a warning
of violation of sections 7.5, 23.4, 24.1.57 and 4.1.74 of
the [Clinton zoning] regulations to the defendants. The
warning expressly advised the defendants to ‘[s]top the
manufacturing of wood materials for sale and the stock-
piling of wood and debris away from vegetative areas to
prevent any possible ignition of the vegetation. Stabilize
the site by properly installing erosion controls along
all disturbed areas and stockpiles. Stop the import of
materials such as logs, wood chips, branches, leaves
and other land/tree clearing debris.’ After inspection,
on February 13, 2012, the plaintiff issued a second warn-
ing of violations that was identical to the February 1,
2012 warning. Thereafter, the defendants met with the
plaintiff and agreed to reduce and eliminate the mulch
piles, eliminate the use of outside mulch and provide
a place for the animals outside of the setbacks. The
defendants also advised the plaintiff in April, 2012, that
they had stopped accepting outside wood and wood
chips. Thereafter, the defendants violated their
agreements and failed to comply with the February
warnings.
‘‘After the plaintiff inspected the premises and found
that the defendants had not remedied various violations
of the zoning regulations, on October 18, 2012, he issued
a notice of violations of numerous sections of the regu-
lations. The notice reminded the defendants of their
previous agreements to bring the premises into compli-
ance and expressly advised the defendants that their
failure to remedy the violations could lead to further
legal action and the imposition of penalties under the
Connecticut General Statutes. Thereafter, on November
15, 2012, the plaintiff issued an order to discontinue,
listing the numerous violations of the regulations about
which the defendants had previously received notice.
This order, like the April order, expressly stated that
it ‘may be appealed to the [board] within fifteen days
of its receipt.’
‘‘On March 13, 2013, the defendants’ attorney . . .
sent a letter to . . . [the attorney] who represented
the plaintiff, advising her that since the Department of
[Energy and] Environmental Protection did not require
[Jeffrey Cashman] to obtain a permit to regrind and
sell wood chips, [Jeffrey Cashman] intended to resume
regrinding and selling wood chips on the premises. The
letter did not explain how the position of the Depart-
ment of [Energy and] Environmental Protection had
any relevance whatsoever to the violation of the Clinton
zoning regulations. On March 28, 2013 . . . [another
attorney who] also represented the plaintiff, sent a letter
to the defendants’ attorney . . . advising that
accepting wood chips for regrinding and sale would
constitute a wilful failure to comply with the November
15, 2012 order to discontinue.
‘‘On November 13, 2013, the defendants petitioned
to amend the Clinton zoning regulations to allow a
number of the defendants’ activities that are the subject
of the orders to discontinue, including the mulching
operation. The petition to amend was approved with
modification on May 12, 2014. However, the defendants
have never even attempted to take advantage of the
amended regulations and, unbelievably, have not
applied to obtain a special permit exception pursuant
to the new regulations.
‘‘[Lane] retired as zoning enforcement officer . . .
and . . . [Knapp] became the Clinton [zoning enforce-
ment officer] on May 1, 2014. He inspected the premises
and found that almost all of the violations mentioned
in the orders to discontinue still existed, including cows
in the corral, smoking piles of mulch, and heavy machin-
ery on the premises. [Knapp] testified that [Jeffrey Cash-
man] has made it clear that he has no intention of
complying with the orders at issue. [Jeffrey Cashman’s]
own testimony made it clear that, essentially, he does
not think the zoning regulations should apply to him
because he’s a farmer.
‘‘The plaintiff has incurred $16,388.50 in attorney’s
fees and $412.20 in costs related to this action through
May 1, 2015. Since the briefs in this case were filed
on June 19, 2015, and July 7, 2015, the plaintiff has
undoubtedly incurred additional legal expenses in con-
nection therewith.
‘‘The defendants have stipulated to the majority of
the allegations in the plaintiff’s complaint. They don’t
deny that they are in violation of the orders to discon-
tinue and the regulations referenced therein. They just
don’t believe the orders are valid and/or that the orders
should apply to them. However, the defendants may
not contest the validity of the orders to discontinue in
this zoning enforcement action because they failed to
appeal those orders.’’
The court proceeded in its analysis to reject the defen-
dants’ argument that the injunctive relief requested by
the plaintiff was inequitable. The court, citing relevant
case law, observed that the granting of such relief must
be compatible with the equities of the case, and went
on to determine that equitable considerations weighed
in favor of granting the plaintiff relief. The court stated
in relevant part: ‘‘[T]he fact that a party will suffer
irreparable harm as a result of a zoning enforcement
injunction does not make the injunction inequitable.
. . . In this case . . . the court finds that the equities
patently lie with the town. The defendants have bla-
tantly and defiantly violated multiple zoning regula-
tions, failing to even attempt to lessen or erase those
violations by applying for special permits.’’ The court
granted the plaintiff injunctive relief with respect to the
activities and conditions at the subject premises that
were the subject of the plaintiff’s orders to discontinue.
Moreover, the court ordered the defendants to pay a
fine and awarded the plaintiff attorney’s fees and costs.
This appeal followed. Additional facts will be set forth
as necessary.
I
First, the defendants claim that Judge Domnarski and
Judge Aurigemma erred in striking one of their special
defenses, thereby prohibiting them from demonstrating
that they had a legally protected right to use the subject
premises as a farm on the ground that such use of their
property was a nonconforming use that existed prior
to the town’s amendment of the zoning regulations in
2012 with respect to farms and livestock. We disagree.
We begin our analysis of this claim by reviewing some
of the relevant procedural history set forth previously
in this opinion. The record reflects that on May 10,
2013, Judge Domnarski struck the defendants’ special
defense that was included in their answer dated Novem-
ber 5, 2012, which they had filed in response to the
plaintiff’s original complaint. This special defense was
that the subject property had been classified as farm-
land under Public Act 63-490 and that the activities
described in the April 16, 2012 order to discontinue
‘‘were nonconforming uses that predate the zoning laws
the plaintiff is trying to enforce.’’ In granting the motion
to strike, Judge Domnarski agreed with the plaintiff’s
arguments and determined that the special defense was
‘‘legally insufficient’’ because the defendants had failed
to exhaust their administrative remedies by exercising
their right to challenge the validity of the order by
appealing it to the board.
After the plaintiff filed an amended complaint, the
defendants filed an answer to the amended complaint.
As we explained previously, the answer to the amended
complaint originally contained three special defenses.
The defendants deleted the first two of these special
defenses in response to the plaintiff’s request to revise.
Thus, following its revision by the defendants, the
answer set forth only one special defense that included
a claim of municipal estoppel and a claim that the defen-
dants’ activities at the subject premises were protected
pursuant to § 19a-341. In striking this special defense
in its entirety, Judge Aurigemma determined that the
defendants had failed to allege sufficient facts to dem-
onstrate that the plaintiff had engaged in activities that
induced them to engage in the conduct at issue at the
subject premises. Additionally, Judge Aurigemma con-
cluded that, insofar as the defendants had revised the
special defense to include a claim pursuant to § 19a-
341, such revision was legally improper. See footnotes
9 and 10 of this opinion.
In their argument concerning the present claim, the
defendants focus solely on whether the court properly
precluded them from setting forth their special defense
on the basis of farming as a nonconforming use. Specifi-
cally, the defendants argue: ‘‘Throughout the record of
the case, the defendant[s] [have] attempted to provide
evidence that shows, unequivocally, that some, if not
all, of the ‘violations’ existed prior to the revision of
the zoning regulations on January 1, 2012, and were
legal as of right uses on December 31, 2011. The defen-
dants admittedly failed to appeal the [zoning enforce-
ment officer’s] orders to the [board]. The trial court
should have [nonetheless] . . . allowed the defendants
to proceed with their special defenses. Because the
defendants’ uses were legal nonconforming uses, the
defendants were entitled to constitutional protection
of those nonconforming uses that were on the property
at the time of the amendment to the zoning regulations.’’
The defendants proceed to argue that they operated a
farm on the subject premises prior to January 1, 2012,
that the zoning regulations at issue were amended to
prohibit some of the defendants’ activities on the sub-
ject premises on January 1, 2012, and that the plaintiff
began enforcement action against the defendants
approximately four months later. Additionally, the
defendants argue that ‘‘[t]he facts are clear that once
the town revised the regulations, the plaintiff began
immediate enforcement against the defendants. Such
behavior is a violation of the defendants’ statutory and
constitutional rights that are attached to property own-
ers with nonconforming uses and, because of the egre-
gious nature of the enforcement and the
unconstitutional nature of the result, the doctrine of
exhaustion of administrative remedies should not
apply.’’
Additionally, in framing their claim, the defendants
have referred to rulings made by Judge Domnarski and
Judge Aurigemma. They argue that these rulings ‘‘pro-
hibited [them] from raising the special defenses that
they had a legal nonconforming right to use the property
as a farm . . . .’’ Turning to the defendants’ claim of
error as it relates to Judge Aurigemma’s ruling, we
observe, once again, that, in this appeal, the defendants
do not claim that Judge Aurigemma erroneously struck
their special defense as it pertained to their claim of
municipal estoppel or their reliance on § 19a-341.
Instead, the defendants claim is limited to their asser-
tion of a legally protected right to the nonconforming
use of the subject premises as a farm. Although the
defendants refer to Judge Aurigemma’s ruling in their
statement of the claim, they do not identify how Judge
Aurigemma’s ruling on the motion to strike harmed
them or why it was erroneous. As counsel for the defen-
dants acknowledged at oral argument before this court,
Judge Aurigemma did not strike a special defense
related to such a nonconforming use of the subject
premises because, by the time that Judge Aurigemma
ruled on the motion to strike, the defendants had
deleted their first and second special defenses (related
to nonconforming use) in their response to the plain-
tiff’s request to revise. Thus, any claim of error by the
defendants that Judge Aurigemma improperly struck
their special defenses related to nonconforming use is
belied by a simple review of the record. We are unable
to review a ruling that was not made.
Thus, we turn to the defendants’ claim of error as it
relates to Judge Domnarski’s ruling striking their spe-
cial defense that they had a legally protected right to
continue to conduct nonconforming farming activities
at the subject premises.11 Before discussing the propri-
ety of that ruling, we address the plaintiff’s argument
that the defendants voluntarily waived appellate review
of Judge Domnarski’s ruling because, following that
ruling, the plaintiff filed an amended complaint, the
defendants filed an answer in response to the plaintiff’s
amended complaint, and, later, the defendants amended
their answer and voluntarily deleted special defenses
alleging nonconforming use.12
It is well established in our law that ‘‘[w]hen an
amended pleading is filed, it operates as a waiver of
the original pleading. The original pleading drops out
of the case and although it remains in the file, it cannot
serve as the basis for any future judgment, and previous
rulings on the original pleading cannot be made the
subject of an appeal.’’ (Internal quotation marks omit-
ted.) Lund v. Milford Hospital, Inc., 326 Conn. 846,
850, 168 A.3d 479 (2017); see also Rockstone Capital,
LLC v. Sanzo, 175 Conn. App. 770, 788, 171 A.3d 77
(same), cert. granted on other grounds, 327 Conn. 968,
A.3d (2017); Ed Lally & Associates, Inc. v.
DSBNC, LLC, 145 Conn. App. 718, 746, 78 A.3d 148
(same), cert. denied, 310 Conn. 958, 82 A.3d 626 (2013).
‘‘When a defendant voluntarily files an amended or sub-
stitute answer after a former one has been adjudged
insufficient on demurrer, he waives all right to except
to the action of the court in sustaining the demurrer to
the first answer.’’ Pettus v. Gault, 81 Conn. 415, 418,
71 A. 509 (1908).
In the present case, following Judge Domnarski’s rul-
ing on the motion to strike on May 10, 2013, the defen-
dants did not file an amended or substitute answer in
response to the plaintiff’s original complaint. Rather,
on August 22, 2013, after the plaintiff filed a motion for
default for the defendants’ failure to file a responsive
pleading to the amended complaint, the defendants filed
an answer to the plaintiff’s July 3, 2013 amended com-
plaint. In their answer to the amended complaint, the
defendants included two special defenses of noncon-
forming use, thereby reasserting the special defense
related to farming activities that had been stricken by
Judge Domnarski.13 In his request to revise the answer
to the amended complaint, the plaintiff requested that
the first and second special defenses be deleted in their
entirety as having been ‘‘previously alleged’’ by the
defendants in their response to his original complaint
and having been ‘‘already stricken by Judge Domnarski’’
on the ground that the defendants failed to exhaust
their administrative remedies. Although they had a right
to object to any or all of the requested revisions; see
Practice Book § 10-37 (b); the defendants did not do
so.14 Instead, they deleted the special defenses, thereby
removing those special defenses from the trial court’s
consideration in adjudicating the merits of the case.
To clarify the narrow waiver issue before us, we
reiterate that, presently, the defendants only challenge
Judge Domnarski’s ruling in striking their special
defense related to farming activities on the subject
premises. They deleted their special defense related to
commercial nursery activities at the subject premises;
see footnote 11 of this opinion; and no ruling was made
with respect to that special defense. Moreover, they
have not appealed from Judge Aurigemma’s ruling strik-
ing their special defense that was based on municipal
estoppel. The plaintiff’s waiver argument is somewhat
persuasive, for it is based on the defendants’ voluntary
decision to delete both their special defenses that were
based on nonconforming use in response to the plain-
tiff’s request to revise. The defendants, although failing
to address the plaintiff’s waiver argument by means of
a reply brief, nonetheless rely on Judge Domnarski’s
ruling as a rationale for their failure to object to the
request to revise, an undoubtedly futile endeavor that
only would have compelled the court to revisit the issue
of the validity of their special defenses.15 We have not
discovered any precedent that shares the unique proce-
dural history presented in the present case and, thus,
could be considered to be binding authority with
respect to the issue. Lacking clearly applicable prece-
dent, we turn to a review of the merits of the claim and
conclude that Judge Domnarski’s ruling was proper.
It is undisputed that the defendants did not exercise
their right to appeal to the board from the plaintiff’s
April 16, 2012 order to discontinue within fifteen days
of the receipt of that order. In moving to dismiss and/
or strike the special defense at issue, the plaintiff argued
that the court lacked subject matter jurisdiction to con-
sider the special defense because the defendants failed
to exhaust their administrative remedies by appealing
to board within the time prescribed by the board. See
General Statutes § 8-7.
In their written objection to the plaintiff’s motion,
submitted to the trial court, the defendants argued in
relevant part that the exhaustion doctrine did not apply
in this case because (1) the special defense was based
on a determination that one or more zoning regulations
were invalid, specifically, that by virtue of Public Act
63-490, the regulations on which the plaintiff relied are
invalid or illegal and did not apply to the subject prop-
erty, and (2) their special defense was based on the
interpretation of a statute, specifically, that it required
the court to interpret Public Act 63-490, which, the
defendants argued, ‘‘exempts them from the zoning reg-
ulations of Clinton by making their property a valid
nonconforming use that predates the zoning regulations
of Clinton’’ and that ‘‘[a] land owner is not required to
appeal to an administrative agency where the interpre-
tation of a statute is required.’’ During argument on
the motion, the defendants’ attorney reiterated that the
defendants intended by their special defense to chal-
lenge the validity of the zoning regulations ‘‘because
Public Act 63-490 . . . effectively trumps these zoning
enforcement regulations’’ and that their special defense
required the court to interpret Public Act 63-490. The
plaintiff reiterated the central premise advanced in his
motion, namely, that the special defense at issue raised
a garden variety claim of whether the defendants had
a nonconforming use and that such issue should have
been raised before the board because it was ‘‘clearly
within [its] purview.’’
Before this court, the defendants argue that they
wanted to demonstrate that some, if not all, of the
conditions and activities at issue on the subject property
existed prior to the time that the Clinton zoning regula-
tions were revised on January 1, 2012, such that they
were legal on December 31, 2011. The defendants argue
that farming uses were ‘‘lightly regulated’’ prior to the
revisions, but beginning on January 1, 2012, farming
uses required a permit. The defendants argue that, as
part of proving their special defense, they intended to
present evidence to show that they had been operating
a farm on the subject premises since 1988 and had
constructed the enclosure for cows prior to January 1,
2012, the date when newly enacted regulations prohib-
iting livestock from being kept within the setback area
went into effect. They argue that it was obvious that
their farming activities predated the newly enacted reg-
ulations and that the plaintiff’s conduct, in immediately
enforcing the newly enacted zoning regulations with
respect to their property was ‘‘egregious’’ because their
activities clearly were legally protected as nonconform-
ing uses. They argue that ‘‘[s]uch behavior is a violation
of the defendants’ statutory and constitutional rights
that are attached to property owners with nonconform-
ing uses . . . .’’
The defendants argue that the present case falls into
one of the narrow exceptions to the exhaustion doc-
trine. Relying on Norwich v. Norwalk Wilbert Vault Co.,
208 Conn. 1, 4, 544 A.2d 152 (1988), the defendants argue
that they excusably bypassed available administrative
relief, specifically, appealing to the board, because ‘‘a
constitutional question is involved and obtaining relief
from the [board] would be futile.’’ In this regard, the
defendants argue that the question of whether any con-
stitutionally protected nonconforming uses existed was
beyond the scope of review by the board and that ‘‘this
case presents a constitutional question as to whether
the plaintiff can eliminate a constitutionally protected
nonconforming right just by the issuance of a cease
and desist order that is not appealed.’’ The defendants
argue that the exception applies in this case to address
what they describe as an ‘‘unconstitutional result’’ of
the plaintiff’s order. Additionally, the defendants argue
that the plaintiff’s actions ‘‘raised questions as to
whether or not the newly enacted regulation[s] [were]
invalid. The [board] was not in a position to make a
determination as to whether or not the newly enacted
regulation[s] [were] invalid, particularly, in [their]
enforcement against the defendants.’’ Without citing to
any relevant authority, the defendants posit that the
issue of whether a nonconforming use existed was sim-
ply ‘‘beyond the scope of the [board].’’
Additionally, relying on Upjohn Co. v. Zoning Board
of Appeals, 224 Conn. 96, 104–105, 616 A.2d 793 (1992),
the defendants argue that they properly bypassed
administrative relief because the plaintiff’s ‘‘zoning
action [was] so far outside [a] valid exercise of zoning
power that public policy dictates that the aggrieved
party be allowed to challenge the zoning authority in
court.’’ In this regard, the defendants rely, in part, on
the fact that the plaintiff began his enforcement action
soon after the zoning regulations were revised and that
the order to discontinue had the effect of ‘‘eliminat[ing]’’
their nonconforming right to use the subject property
as a farm. At oral argument before this court, the defen-
dants clarified that the timing of the plaintiff’s enforce-
ment activities in relation to the revisions to the zoning
regulations was sufficient to reflect that the plaintiff’s
zoning enforcement activities fell so far outside of the
lawful or legitimate exercise of zoning power that they
should be permitted to challenge the zoning authority
in court.
Thus, the arguments raised by the defendants before
Judge Domnarski with respect to exceptions to the
exhaustion doctrine differ from those, discussed pre-
viously, that the defendants currently advance before
this court. Before the trial court, the defendants’
exhaustion arguments were dominated by a reliance
on Public Act 63-490, an enactment to which the defen-
dants do not even refer in their appellate brief. It would
be particularly unfair, both to the trial court and to the
plaintiff, for this court to overturn the trial court’s ruling
on the basis of constitutional and public policy argu-
ments that were neither raised before nor addressed
by the court.
Even if we were to consider the merits of the argu-
ments on which the defendants currently rely, we would
readily conclude that they are not persuasive and, thus,
do not afford them a right to bypass the administrative
remedies available to them.16 A motion to strike is the
procedural vehicle whereby a party may challenge the
legal sufficiency of a special defense and, in ruling on
a motion to strike, the court ‘‘must accept as true the
facts alleged in the special defenses and construe them
in the manner most favorable to sustaining their legal
sufficiency.’’ Barasso v. Rear Still Hill Road, LLC, 64
Conn. App. 9, 13, 779 A.2d 198 (2001). In the present
case, the issue raised by the motion to strike concerned
the exhaustion doctrine and, thus, the court’s subject
matter jurisdiction to consider the special defense
rather than the legal sufficiency of the special defense.
Accordingly, it is appropriate to view and review the
ruling as one made in connection with a motion to
dismiss. ‘‘The standard of review for a court’s decision
on a motion to dismiss . . . is well settled. A motion
to dismiss tests, inter alia, whether, on the face of the
record, the court is without jurisdiction. . . . [O]ur
review of the court’s ultimate legal conclusion and
resulting [determination] of the motion to dismiss will
be de novo. . . . When a . . . court decides a jurisdic-
tional question raised by a pretrial motion to dismiss,
it must consider the allegations of the [special defense]
in their most favorable light. . . . In this regard, a court
must take the facts to be those alleged in the [special
defense], including those facts necessarily implied from
the allegations, construing them in a manner most favor-
able to the pleader. . . . The motion to dismiss . . .
admits all facts which are well pleaded, invokes the
existing record and must be decided upon that alone.
. . . In undertaking this review, we are mindful of the
well established notion that, in determining whether a
court has subject matter jurisdiction, every presump-
tion favoring jurisdiction should be indulged.’’ (Internal
quotation marks omitted.) Dorry v. Garden, 313 Conn.
516, 521, 98 A.3d 55 (2014). If the resolution of the
jurisdictional issue hinges on relevant facts that are in
dispute, the court may hold an evidentiary hearing to
resolve them. Id., 523–24. In the present case, it is of
no consequence that the court viewed the motion as it
was framed by the parties, as a motion to strike, because
the relevant facts were not in dispute in light of the
parties’ stipulation that the defendants did not pursue
an appeal before the board.
The defendants argue that this case falls within an
exception to the exhaustion doctrine because a ‘‘consti-
tutional question is involved’’ and ‘‘[t]he [board] was
not in a position to make a determination as to whether
or not the newly enacted regulation was invalid . . . .’’
In Norwich v. Norwalk Wilbert Vault Co., supra, 208
Conn. 1, precedent on which the defendants expressly
rely, our Supreme Court stated: ‘‘It is well settled that
a jurisdictional prerequisite to seeking relief in a court
of law is that all available administrative remedies must
have been exhausted. . . . We have held, however, that
under limited circumstances, there are exceptions to
this principle. One such exception is that where the
available relief is inadequate or futile, the administrative
process may be bypassed. . . . [E]xhaustion of admin-
istrative remedies is generally not required when the
challenge is to the constitutionality of the statute or
regulation under which the board or agency operates,
rather than to the actions of the board or agency. . . .
Generally, such challenges have been instituted by a
plaintiff in a declaratory judgment action.’’ (Citations
omitted; internal quotation marks omitted.) Id., 4–5.
In Stepney, LLC v. Fairfield, 263 Conn. 558, 821 A.2d
725 (2003), our Supreme Court provided additional
guidance with respect to this type of issue: ‘‘[T]here
are recognized exceptions to the exhaustion doctrine,
but we have recognized such exceptions only infre-
quently and only for narrowly defined purposes. . . .
One such exception involves a challenge to the constitu-
tionality of the statute or regulation under which an
agency operates, rather than to the actions of the board
or agency. . . . [T]he mere allegation of a constitu-
tional violation [however] will not necessarily excuse
a [party’s] failure to exhaust available administrative
remedies . . . . The test is whether the appeal would
be futile because the administrative agency . . . lacks
the authority to grant adequate relief. . . .
‘‘Moreover . . . [s]imply bringing a constitutional
challenge to an agency’s actions will not necessarily
excuse a failure to follow an available statutory appeal
process. . . . [D]irect adjudication even of constitu-
tional claims is not warranted when the relief sought
by a litigant might conceivably have been obtained
through an alternative [statutory] procedure . . .
which [the litigant] has chosen to ignore. . . . [W]e
continue to limit any judicial bypass of even colorable
constitutional claims to instances of demonstrable futil-
ity in pursuing an available administrative remedy.’’
(Citations omitted; internal quotation marks omitted.)
Id., 570–71; see also General Dynamics Corp. v. Groton,
184 Conn. 483, 490, 440 A.2d 185 (1981) (exhaustion
doctrine does not apply to questions concerning consti-
tutionality of statute granting administrative agency
authority to operate); Friedson v. Westport, 181 Conn.
230, 233, 435 A.2d 17 (1980) (exhaustion doctrine does
not apply to questions related to ‘‘very enactment’’ of
regulations at issue).
Looking beyond isolated assertions by which the
defendants purport to challenge the validity of the zon-
ing regulations at issue, which are unaccompanied by
any legal analysis, a careful review of the substance of
the defendants’ arguments reveals that the ‘‘constitu-
tional question’’ that they sought to raise by means of
their special defense simply was whether the plaintiff’s
enforcement activities were valid despite the fact that,
following the enactment of the revised zoning regula-
tions at issue, they had a constitutionally protected
preexisting use resulting from their activities on the
subject premises prior to January 1, 2012. As the defen-
dants acknowledge ultimately, their special defense
was meant to challenge ‘‘the unconstitutional result of
the plaintiff’s illegal enforcement,’’ but not the constitu-
tionality of the regulations that the plaintiff purported
to enforce. (Emphasis added.) The defendants’ constitu-
tional challenge to the plaintiff’s activities does not
excuse their failure to avail themselves of the adminis-
trative appeal process that was available to them.
Although we recognize that ‘‘[a] party need not exhaust
an inadequate or futile administrative remedy’’; Conto
v. Zoning Commission, 186 Conn. 106, 115, 439 A.2d
441 (1982); the defendants have not demonstrated that
the board was unable to fulfill its customary administra-
tive function in the present case by considering the
appropriate evidence and determining whether the
plaintiff properly determined that a nonconforming use
did not exist, a determination made manifest by the
issuance of the order to discontinue. Moreover, the
defendants have not demonstrated that the board, in
fulfilling its customary administrative function, was
unable to grant any appropriate relief warranted in the
present case with respect to the plaintiff’s order to
discontinue. Nothing in the record suggests that the
relief sought by the defendants could not have been
obtained by resort to the administrative remedy that
they ignored.
Our Supreme Court has ‘‘held that the statutory
scheme [which affords a right to appeal from the deci-
sion of an administrative officer or agency to the zoning
board of appeals] reflects the legislative intent that the
issue of what constitutes a nonconforming use should
be resolved in the first instance by local officials. . . .
[W]hen a party has a statutory right of appeal from the
decision of an administrative officer or agency, he may
not, instead of appealing, bring an independent action
to test the very issue which the appeal was designed
to test. . . . Likewise, the validity of the order may not
be contested if zoning officials seek its enforcement
after a violator has failed to appeal.’’ (Citations omitted;
internal quotation marks omitted.) Gelinas v. West
Hartford, 225 Conn. 575, 595, 626 A.2d 259 (1993).
The rationale in another decision of our Supreme
Court applies with equal force to the present case:
‘‘Clearly the defendant had a statutory right to appeal
the cease and desist order to the zoning board of
appeals. The zoning board [of appeals] would in that
proceeding determine whether the defendant, in fact,
had a nonconforming use. The statutory procedure
reflects the legislative intent that such issues be handled
in the first instance by local administrative officials
in order to provide aggrieved persons with full and
adequate administrative relief, and to give the reviewing
court the benefit of the local board’s judgment. . . .
Instead of following this administrative process to
establish the legality of his use after the receipt of the
order to cease and desist, the defendant elected to await
the institution of an action by the town to enforce the
order. On the record of this case, we conclude that the
trial court properly refused to resolve the issue of the
defendant’s special defense alleging a nonconforming
use, since that issue was one properly for administrative
determination in the first instance.’’ (Citation omitted;
footnote omitted.) Greenwich v. Kristoff, 180 Conn.
575, 578–79, 430 A.2d 1294 (1980). Accordingly, the
defendants’ futility argument is unpersuasive.
As the defendants properly observe, in Upjohn Co.
v. Zoning Board of Appeals, supra, 224 Conn. 104–105,
our Supreme Court, in rejecting a collateral attack upon
a condition attached to a building application, stated
that ‘‘there may be exceptional cases in which a pre-
viously unchallenged condition was so far outside what
could have been regarded as a valid exercise of zoning
power that there could not have been any justified reli-
ance on it, or in which the continued maintenance of a
previously unchallenged condition would violate some
strong public policy. It may be that in such a case a
collateral attack on such a condition should be permit-
ted. We leave that issue to a case that, unlike this case,
properly presents it.’’ See also Gangemi v. Zoning
Board of Appeals, 255 Conn. 143, 150, 763 A.2d 1011
(2001) (rejecting claim that exception suggested in
Upjohn Co. satisfied). The court in Upjohn Co. stated:
‘‘[W]e have ordinarily recognized that the failure of a
party to appeal from the action of a zoning authority
renders that action final so that the correctness of that
action is no longer subject to review by a court. . . .
[This rule rests] in large part, at least in the zoning
context, on the need for stability in land use planning
and the need for justified reliance by all interested par-
ties—the interested property owner, any interested
neighbors and the town—on the decisions of the zoning
authorities.’’ (Citations omitted.) Upjohn Co. v. Zoning
Board of Appeals, supra, 102.
In arguing that this precedent permitted them to
bypass the administrative remedies available to them,
the defendants argue, inter alia, that they were faced
with a fifteen day appeal period in which to appeal to
the board, that they had complied with the plaintiff’s
initial orders and had made attempts to persuade the
plaintiff that his zoning enforcement activities were
unjust and illegal, that such discussions lasted beyond
the appeal period, and that the plaintiff’s orders had
the effect of eliminating their nonconforming use rights
with respect to the subject premises. The defendants
challenge Judge Domnarski’s ruling in striking their
special defense, yet the defendants rely on ‘‘facts sur-
rounding [their] decision not to appeal the orders’’ that
were presented at the time of the trial, well after the
time that Judge Domnarski considered and ruled on
the motion to strike.
Having reviewed Upjohn Co. and its progeny, we are
not persuaded that the facts of the present case are
sufficient to meet the ‘‘very high standard’’; Torrington
v. Zoning Commission, 261 Conn. 759, 769, 806 A.2d
1020 (2002); necessary to satisfy the narrow exception
to the exhaustion doctrine on which they rely. Stripped
of the defendants’ rhetoric, their special defense was
a means of demonstrating that a nonconforming use
existed. The plaintiff, in issuing the order to discon-
tinue, plainly disagreed with the defendants’ position
in this regard. That a property owner disagreed with the
determination of a zoning enforcement officer hardly
presents an extraordinary circumstance. Moreover, the
defendants have not presented this court with any
authority to support their assertion that ‘‘[t]he question
of whether any constitutionally protected nonconform-
ing uses [existed] is beyond the scope of the [board].’’
The defendants, having been apprised of their right to
appeal, chose not to appeal within the time period set
by the board. If, as they argue, their farming activities
obviously were nonconforming uses of the property
following January 1, 2012, they had an ample opportu-
nity to demonstrate that fact before the board. They do
not present any compelling reasons why the issue was
not the proper subject of an appeal before the board
or why, despite any ongoing efforts to persuade the
plaintiff to rescind his order, they were unable to bring
an appeal. Nothing in the record suggests that the defen-
dants could not have brought a timely appeal before
the board while simultaneously continuing to negotiate
with the plaintiff in an effort to resolve the dispute.
For the foregoing reasons, we conclude that Judge
Domnarski’s ruling in striking the special defense
was proper.
II
Next, we consider the defendants’ claim that the
court improperly granted three of the plaintiff’s motions
in limine. We disagree.
As explained previously in this opinion, the plaintiff
brought five motions in limine in which he sought to
preclude certain evidence. The defendants challenge
the court’s granting of three of those motions. The first
motion pertained to evidence offered for the purpose
of challenging the validity of the orders to discontinue
dated April 16, 2012, and November 15, 2012. The sec-
ond motion pertained to evidence offered for the pur-
pose of proving a defense of municipal estoppel or
laches. The third motion pertained to evidence offered
for the purpose of proving a nonconforming farm use
of the subject premises. In his written motions, the
plaintiff argued in relevant part that any evidence by
which the defendants sought to raise a collateral attack
on the orders to discontinue, including any evidence
offered to demonstrate that a nonconforming use
existed, should be disallowed in light of Judge Domn-
arski’s prior ruling that struck the defendants’ special
defense, the fact that the defendants had voluntarily
withdrawn their special defenses related to noncon-
forming use in response to his request to revise, and
the defendants’ failure to appeal the orders to the board.
Moreover, the plaintiff argued, in relevant part, that
evidence related to the issues of municipal estoppel or
laches should be disallowed in light of Judge Aurigem-
ma’s prior ruling that struck the defendants’ special
defense that was related to these issues. Previously in
this opinion, we discussed the foregoing procedural
history in greater detail.
The defendants filed a written objection to these
motions, in which they argued in relevant part: ‘‘The
defendants intend to present evidence which will pro-
vide the court with the full history of the defendants’
use of the property since they acquired the property in
1987. The defendants intend to present evidence con-
cerning the steps that they have taken to improve their
property and utilize it in a manner that they believed
was consistent with the zoning regulations then in
effect. The defendants intend to present evidence of
their responses to the orders to discontinue and their
obtaining and providing information concerning the
nature of their use. . . . All of the evidence that the
defendants intend to introduce is relevant to the court’s
central determination as to whether or not the perma-
nent injunction should be granted.’’ The defendants
argued that because the plaintiff has invoked the court’s
equitable powers by seeking a permanent injunction
with respect to the defendants’ farming activities on
the subject property, the court was obligated to con-
sider the equities of the case and to assess the gravity
and wilfulness of the violation and the potential harm
to the defendants. The defendants argued: ‘‘Although
the defendants failed to appeal the orders to discon-
tinue, the court must look to the historic use of the
property in ruling on whether the equities will be served
in granting this injunction. . . . The evidence that the
defendants seek to admit will provide the court with
evidence that is necessary for the determination regard-
ing the gravity and wilfulness of the violation as well
as the potential harm [to the] defendants. The evidence
will include the historic use of the property, the plain-
tiff’s inspections of the property, town regulation of the
property and the defendants’ responses to the orders
to discontinue.’’ (Citation omitted; internal quotation
marks omitted.)
Initially, during oral argument on the motions, the
defendants’ attorney argued in relevant part: ‘‘I disagree
that we cannot challenge the validity of the orders [to
discontinue] because the court has the ultimate discre-
tion as to whether or not those orders should be upheld
and turned into permanent injunctions in favor of the
town.’’ The defendants’ attorney argued that the evi-
dence at issue, with respect to nonconforming use, was
necessary so that the court would have ‘‘a full picture’’
of all of the facts surrounding the orders to discontinue
and that such evidence was relevant to the equitable
issues before the court in determining whether it should
grant the plaintiff permanent injunctive relief. Later,
the defendants’ attorney appeared to have modified his
argument slightly by stating that the defendants did not
intend ‘‘necessarily’’ to challenge the validity of the
orders to discontinue, but to present evidence that was
relevant to a determination of what injunctive relief, if
any, was warranted.
During oral argument on the motions, the plaintiff’s
attorney argued in relevant part that, despite the equita-
ble considerations that were before the court, the defen-
dants’ position, that they should be allowed to present
evidence in an attempt to demonstrate a nonconforming
farm use or to otherwise challenge the validity of the
orders to discontinue, would permit them, effectively,
to transform the case into the administrative appeal
that the defendants chose not to pursue.
With respect to the motions in limine pertaining to
evidence of nonconforming use or evidence that other-
wise would effectively challenge the validity of the
orders to discontinue, the court, Aurigemma, J., agreed
with the plaintiff’s arguments and granted the motions
in limine related to such evidence. The court stated
that the defendants had not pursued an administrative
appeal. With respect to the motion in limine pertaining
to the special defense of estoppel or laches, the plain-
tiff’s attorney observed that the court already had
stricken the special defense of the defendants to which
such evidence would have pertained. The defendants’
attorney acknowledged that the parties already had pre-
sented relevant arguments in this regard in the context
of the motion to strike that special defense. The court
granted the motion.
Presently, the defendants argue that the court’s rul-
ings were erroneous because in so ruling the court
prohibited them from presenting an equitable defense
to the zoning enforcement action. The defendants
argue: ‘‘In this case, although the defendants failed to
appeal the orders to discontinue, the court must look
to the historic use of the property in ruling on whether
the equities will be served in granting this injunction.’’
They argue: ‘‘The evidence that the defendants
attempted to admit would have provided the trial court
with evidence that was necessary for the determination
regarding the gravity and wilfulness of the violation as
well as the potential harm to the [defendants]. . . .
[T]he evidence will include the historic use of the prop-
erty, the plaintiff’s inspections of the property, town
regulation of the property and the defendants’
responses to the orders to discontinue.’’ (Internal quota-
tion marks omitted.) Additionally, the defendants argue:
‘‘In the present matter, the defendants failed to appeal
the cease and desist orders due to their belief that the
matters would be amicably resolved. We do not believe
that the mere failure to timely appeal the matter is
sufficient to have the nonconforming uses extinguished.
In reviewing the orders, it does not appear as though
[the] plaintiff ever considered the property was a farm
or understood that the farm use was permitted without
a zoning permit until December 31, 2011.’’ (Internal
quotation marks omitted.)
Primarily, the plaintiff argues that the defendants
have failed to claim, let alone demonstrate, that the
court’s rulings were harmful such that the disallowed
evidence likely would have affected the result of the
trial. Also, the plaintiff argues that the court’s rulings
reflected a proper exercise of its discretion because
the equitable nature of the proceeding did not limit the
court’s discretion in the manner claimed by the
defendants.
The defendants urge us to review the court’s rulings
de novo because the court based its evidentiary rulings
on its resolution of a question of law, specifically,
whether their failure to exhaust their administrative
remedies precluded them from presenting ‘‘any evi-
dence concerning their historic use of the property or
the regulations that had been in effect on December
31, 2011.’’ Also, the defendants argue that the rulings
require that we review questions of law, including
‘‘whether the defendants were entitled to a constitu-
tional review of the elimination of the nonconforming
rights, whether the plaintiff’s actions deprived the
defendants of constitutionally protected rights and
whether this constitutional question presents an excep-
tion to the exhaustion of administrative remedies rule.’’
The plaintiff urges us to apply the deferential abuse of
discretion standard of review to the claimed errors.
Here, it is apparent that the court determined that
the evidence at issue was inadmissible because (1) the
defendants failed to exhaust their administrative reme-
dies, (2) Judge Domnarski previously struck the special
defense of nonconforming use, and (3) the court pre-
viously struck the special defense of equitable estoppel.
The defendants urge us to reconsider whether the evi-
dence at issue related to the historic use of the subject
property, the zoning regulations in effect on December
31, 2011, and estoppel nonetheless was admissible in
the present enforcement action. We note, however, that
we already have determined in part I of this opinion
that the court properly struck the special defense of
farming as a nonconforming use, and the defendants
do not challenge Judge Aurigemma’s ruling that struck
their special defense that was based on estoppel. At no
time did the court strike the voluntarily deleted special
defense of operating a commercial nursery as a noncon-
forming use.
We recognize that the function performed by the
court in issuing the challenged evidentiary ruling dic-
tates our scope of review. See State v. Saucier, 283
Conn. 207, 219, 926 A.2d 633 (2007). Regardless of
whether we review the rulings under a plenary standard
of review or under an abuse of discretion standard of
review, it remains the defendant’s burden on appeal to
demonstrate that the court’s evidentiary rulings were
harmful. ‘‘[B]efore a party is entitled to a new trial
because of an erroneous evidentiary ruling, he or she
has the burden of demonstrating that the error was
harmful. . . . The harmless error standard in a civil
case is whether the improper ruling would likely affect
the result. . . . When judging the likely effect of such
a trial court ruling, the reviewing court is constrained
to make its determination on the basis of the printed
record before it. . . . In the absence of a showing that
the [excluded] evidence would have affected the final
result, its exclusion is harmless.’’ (Internal quotation
marks omitted.) Desrosiers v. Henne, 283 Conn. 361,
366, 926 A.2d 1024 (2007).
As the plaintiff aptly observes, the defendants’ brief
does not adequately set forth an analysis of how the
court’s exclusion of evidence affected the final result
of the proceeding. Faced with an appellant’s failure
adequately to brief how a challenged evidentiary ruling
was harmful, both this court and our Supreme Court
have declined to review a claim of error related to such
ruling. See, e.g., Saint Bernard School of Montville, Inc.
v. Bank of America, 312 Conn. 811, 823, 95 A.3d 1063
(2014); State v. Toro, 172 Conn. App. 810, 813, 162 A.3d
63, cert. denied, 327 Conn. 905, 170 A.3d 2 (2017); In
re James O., 160 Conn. App. 506, 526, 127 A.3d 375
(2015), aff’d, 322 Conn. 636, 142 A.3d 1147 (2016).
The consequence of the defendants’ failure to analyze
the issue of harm adequately is that we are left to specu-
late with respect to the content and significance of the
evidence that was excluded by the court’s rulings. The
defendants argued before the trial court that they would
have presented evidence relevant to an understanding
of the historic use of the subject premises, as well as
the gravity and wilfulness of the zoning violation.17 In
their brief, the defendants do not draw our attention
to any proffer made by them to the trial court and,
beyond conclusory statements concerning the exis-
tence of a nonconforming use, the record does not
clearly describe the content of the evidence that the
court excluded.18
In their appellate brief, the defendants state in broad
terms that the court erroneously excluded evidence
concerning ‘‘the historic utilization of the property, the
previous versions of the regulations under which the
defendants acted and the unreasonableness of the plain-
tiff when considering the history prior to January 1,
2012.’’ Apart from failing to refer us to any portion of
the record for details concerning the excluded evi-
dence, the defendants fail to attempt to demonstrate
how the excluded evidence was likely to have affected
the result—a showing that, on the scant record before
us, is not at all self-evident. As the defendants assert,
‘‘[e]ven in an action brought by a zoning enforcement
officer to require conformity with the zoning regula-
tions, the granting of injunctive relief, which must be
compatible with the equities of the case, rests within
the trial court’s sound discretion. . . . Those equities
should take into account the gravity and wilfulness
of the violation, as well as the potential harm to the
defendants.’’ (Citation omitted.) Johnson v. Murzyn, 1
Conn. App. 176, 183, 469 A.2d 1227, cert. denied, 192
Conn. 802, 471 A.2d 244 (1984). ‘‘This court previously
has observed that [t]here is a general principle that a
court of equity will balance the equities between the
parties in determining what, if any, relief to give. The
equities on both sides must be taken into account in
considering an appeal to a court’s equitable powers. An
equity court wisely considers the relative positions of
the parties and makes a decree that does substantial
justice to all. It is the duty of a court of equity to strike
a proper balance between the needs of the plaintiff
and the consequences of giving the desired relief. . . .
[C]ourts should not intervene unless the need for equita-
ble relief is clear, not remote or speculative. Thus, a
court of equity should not grant an award which would
be disproportionate in its harm to the defendant and
its assistance to the plaintiff.’’ (Internal quotation marks
omitted.) Steroco, Inc. v. Szymanski, 166 Conn. App.
75, 90–91, 140 A.3d 1014 (2016).
At the core of the defendants’ claim is their belief
that a nonconforming use existed and that the plaintiff
unjustly deprived them of such use. General Statutes
§ 8-2 (a), as amended by Public Acts 2017, No. 17-39,
§ 1, provides in relevant part that zoning regulations
‘‘shall not prohibit the continuance of any nonconform-
ing use, building or structure existing at the time of the
adoption of such regulations. Such regulations shall not
provide for the termination of any nonconforming use
solely as a result of nonuse for a specified period of
time without regard to the intent of the property owner
to maintain that use. Such regulations shall not termi-
nate or deem abandoned a nonconforming use, building
or structure unless the property owner of such use,
building or structure voluntarily discontinues such use,
building or structure and such discontinuance is accom-
panied by an intent to not reestablish such use, building
or structure. The demolition or deconstruction of a
nonconforming use, building or structure shall not by
itself be evidence of such property owner’s intent to
not reestablish such use, building or structure.’’ A non-
conforming use has been defined as ‘‘a use or structure
[that is] prohibited by the zoning regulations but is
permitted because of its existence at the time that the
regulations [were] adopted.’’ (Internal quotation marks
omitted.) Stamford v. Ten Rugby Street, LLC, 164 Conn.
App. 49, 71, 137 A.3d 781, cert. denied, 321 Conn. 923,
138 A.3d 284 (2016). ‘‘A [nonconforming] use is merely
an existing use, the continuance of which is authorized
by the zoning regulations. . . . Stated another way, it
is a use . . . prohibited by the zoning regulations but
. . . permitted because of its existence at the time that
the regulations [were] adopted. . . . [T]he rule con-
cerning the continuance of a nonconforming use pro-
tects the right of a user to continue the same use of
the property as it existed before the date of the adoption
of the [relevant] zoning regulations.’’ (Internal quotation
marks omitted.) Wiltzius v. Zoning Board of Appeals,
106 Conn. App. 1, 25, 940 A.2d 892, cert. denied, 287
Conn. 906, 907, 950 A.2d 1283, 1284 (2008). ‘‘For a use
to be considered nonconforming . . . that use must
possess two characteristics. First, it must be lawful and
second, it must be in existence at the time that the
zoning regulation making the use nonconforming was
enacted.’’ (Emphasis omitted; internal quotation marks
omitted.) Cummings v. Tripp, 204 Conn. 67, 91–92,
527 A.2d 230 (1987); see also R. Fuller, 9 Connecticut
Practice Series: Land Use Law and Practice (4th Ed.
2015) § 2:2 p. 28 (‘‘[a] nonconforming use is one that
was in existence at the time that the zoning regulation
making the use nonconforming was enacted and which
was previously lawful’’). ‘‘The party claiming the benefit
of a nonconforming use bears the burden of proving that
the nonconforming use is valid.’’ Connecticut Resources
Recovery Authority v. Planning & Zoning Commis-
sion, 225 Conn. 731, 744, 626 A.2d 705 (1993).
Although the defendants bear the burden of demon-
strating that the exclusion of evidence and, particularly,
the exclusion of evidence of a nonconforming use, likely
affected the result of the trial, they do not demonstrate
how the record justifies that they were prepared to
present such evidence to the court. Although they argue
that, on and before December 31, 2011, they used the
subject property as a farm, they do not point to evi-
dence, or proffered evidence, in the record, or to any
applicable zoning regulation in effect prior to January
1, 2012, to support a determination that their historic
use of the subject premises was lawfully nonconform-
ing. Additionally, by reference to the record, they do
not demonstrate how any excluded evidence would
have proven a lack of wilfulness on the defendants’ part.
Instead, the record reflects the existence of many
undisputed facts, all of which tend to support the court’s
determination that injunctive relief was warranted. Spe-
cifically, the facts reflect that the defendants admittedly
failed to exhaust their administrative remedies by
appealing from either of the orders to discontinue and
that they admittedly violated multiple zoning regula-
tions and manifested to the plaintiff an intent to con-
tinue activities that violated zoning regulations.19
Additionally, in determining that ‘‘the equities patently
lie with [the plaintiff],’’ the court found: ‘‘The defendants
have blatantly and defiantly violated multiple zoning
regulations, failing to even attempt to lessen or erase
those violations by applying for special permits.’’
The defendants do not afford this court any basis on
which to conclude that the excluded evidence would
have tipped the balance of the equities in their favor.
For the foregoing reasons, we reject the claim that the
court’s evidentiary ruling was erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In 2012, the underlying action was commenced by Thomas W. Lane as
zoning enforcement officer for the town of Clinton. On September 23, 2014,
prior to the trial, Lane moved to substitute Knapp as the plaintiff in the
present action because, on May 1, 2014, Knapp had assumed the position
of zoning enforcement officer for Clinton. The court granted the motion.
Because Lane and Knapp appear in the same representative capacity and
it is not necessary to our analysis to distinguish between them, in this
opinion, we will refer to both Lane and Knapp as the plaintiff.
2
The plaintiff alleged in part: ‘‘The defendants’ use of the property . . .
violates Clinton zoning regulations, sections 24.1.42, which states that the
keeping and raising of cows requires a zoning permit from the zoning enforce-
ment officer; 25.1, which states that ‘no structure shall extend into any
setbacks required by [the zoning] regulations’; 25.10.6, which states that the
minimum setback from the street line in a R-80 district is fifty feet; 25.10.8,
which states that the minimum setback from the property line or side
property in a R-80 district is 35 feet; and 26.1.4, which states that ‘all livestock
shall be kept in a building, stable or enclosure, not less than the legal setback
for the appropriate zone for any abutting residential property.’ ’’
3
It is undisputed that the order of April 16, 2012, stated, in relevant part:
‘‘This violation must be remedied within ten (10) days of receipt of this
notice. Failure to correct these violations within the above stated time frame
may result in the party being fined $250 per day for each day the violation(s)
continues and/or may result in a civil penalty not to exceed $2500 and/or
result in legal action to enforce the order and to obtain penalties and fines
accruing pursuant to . . . General Statutes § 8-12.
‘‘This order may be appealed to the Zoning Board of Appeals of the Town
of Clinton within fifteen days of its receipt.’’
4
The special defense stated: ‘‘1. The subject property has been classified
by the town of Clinton as farmland under Public Act 63-490 since 1990 and
is, therefore, a legally nonconforming use of the subject property not subject
to zoning laws passed after its classification as farmland under Public Act
63-490.
‘‘2. The complained of activities were nonconforming uses that predate
the zoning laws the plaintiff is trying to enforce.’’
In general terms, No. 63-490 of the 1963 Public Acts, codified in General
Statutes § 12-107a et seq., allows certain types of land, including farmland,
to be assessed at its use value, rather than at its fair market value, for
purposes of local property taxation.
5
Additionally, the plaintiff alleged that the defendants have caused dust
and smoke; ‘‘[o]dors, fumes and/or gasses’’; have made ‘‘[n]oise’’; have failed
to have proper provisions for the storage of waste; and have stockpiled
wood materials in contact with vegetation. Prior to trial, the plaintiff with-
drew these parts of the second count of the amended complaint.
6
It is undisputed that the order of November 15, 2012, stated, in relevant
part: ‘‘These violations must be remedied within ten (10) days of the receipt
of this notice. Failure to correct these violations within the above stated
time frame may result in the party being fined $250 per day for each day
the violations continue and/or may result in a civil penalty not to exceed
$2500 and/or result in legal action to enforce the order and to obtain penalties
and fines accruing pursuant to . . . General Statutes § 8-12.
‘‘This order may be appealed to the Zoning Board of Appeals of the Town
of Clinton within fifteen days of receipt.’’
7
The first special defense stated: ‘‘1. The various uses described in the
plaintiff’s amended complaint are uses directly associated with a farm on
said premises, which is a specifically permitted use under the zoning regula-
tions of the town of Clinton, which use has been established and operated
by the defendants and their predecessors in ownership of said property for
‘‘2. The above described use of the property predates the present zoning
regulations, which require a special permit or a special exception for said
use, and hence is a permitted, preexisting, nonconforming use.’’
8
The second special defense stated: ‘‘1. In addition to the use of said
premises as a ‘farm,’ said premises also had been used by the defendants
and their predecessors in title as a commercial nursery operation, and as
such, is a legally permitted, preexisting, nonconforming use under the Clin-
ton zoning regulations.’’
9
General Statutes § 19a-341 provides in relevant part: ‘‘(a) Notwithstand-
ing any general statute or municipal ordinance or regulation pertaining
to nuisances to the contrary, no agricultural or farming operation, place,
establishment or facility, or any of its appurtenances, or the operation
thereof, shall be deemed to constitute a nuisance, either public or private,
due to alleged objectionable (1) odor from livestock, manure, fertilizer or
feed, (2) noise from livestock or farm equipment used in normal, generally
acceptable farming procedures, (3) dust created during plowing or cultiva-
tion operations, (4) use of chemicals, provided such chemicals and the
method of their application conform to practices approved by the Commis-
sioner of Energy and Environmental Protection or, where applicable, the
Commissioner of Public Health, or (5) water pollution from livestock or
crop production activities, except the pollution of public or private drinking
water supplies, provided such activities conform to acceptable management
practices for pollution control approved by the Commissioner of Energy and
Environmental Protection; provided such agricultural or farming operation,
place, establishment or facility has been in operation for one year or more
and has not been substantially changed, and such operation follows generally
accepted agricultural practices. Inspection and approval of the agricultural
or farming operation, place, establishment or facility by the Commissioner of
Agriculture or his designee shall be prima facie evidence that such operation
follows generally accepted agricultural practices. . . .
‘‘(c) The provisions of this section shall not apply whenever a nuisance
results from negligence or wilful or reckless misconduct in the operation
of any such agricultural or farming operation, place, establishment or facility,
or any of its appurtenances.’’
10
In revising the third special defense, in which the defendants originally
had raised a claim of municipal estoppel, the defendants, inter alia, inserted
a new paragraph, numbered as paragraph 10, which provides: ‘‘In addition,
the defendants claim that their activities on said premises with respect to
the mulching operation as a farming activity, together with other farming
activities conducted on said premises by them, are protected and permitted
under the provisions of [General Statutes § 19a-341].’’ In his memorandum
of law in support of the motion to strike the third special defense, the
plaintiff argued that this newly added paragraph should be stricken because
it was unresponsive to the request to revise and, in light of the defendants’
failure to exhaust their administrative remedies, jurisdictionally improper
as a means of demonstrating that the defendants were lawfully using the
subject premises.
11
We reiterate that Judge Domnarski struck the special defense set forth
in the defendants’ answer to the plaintiff’s original complaint. This special
defense pertained to nonconforming farming activities at the subject prem-
ises. The defendants did not plead a special defense of nonconforming use
related to commercial nursery activities at the subject premises until after
the plaintiff amended his complaint to seek enforcement of the order to
discontinue dated November 15, 2012.
12
The defendants did not file a reply brief to respond to this waiver
argument. At oral argument before this court, the defendants’ attorney relied
on the fact that the defendants had filed a notice of intent to appeal from
Judge Domnarski’s ruling dismissing their counterclaim. The defendants’
notice of intent to appeal from Judge Domnarski’s dismissal of their coun-
terclaim does not affect our analysis of the waiver issue concerning the
striking of their special defense.
13
Count one of the amended complaint was related to the zoning violations
addressed in the order to discontinue dated April 16, 2012. Count two of
the amended complaint was related to the zoning violations addressed in
the order to discontinue dated November 15, 2012. The special defenses in
the answer to the amended complaint were designated as ‘‘first,’’ ‘‘second,’’
and ‘‘third’’ special defenses and, thus, were not pleaded in accordance with
Practice Book § 10-51, which provides in relevant part that ‘‘[w]here the
complaint . . . is for more than one cause of action, set forth in several
counts, each separate matter of defense should be preceded by a designation
of the cause of action which it is designed to meet, in this manner: First
Defense to First Count, Second Defense to First Count, First Defense to
Second Count, and so on. . . .’’ (Emphasis in original.)
14
At oral argument before this court, the defendants’ attorney stated that
the defendants’ trial counsel deleted the special defenses in recognition of
Judge Domnarski’s prior ruling.
15
‘‘[T]he law does not require the performance of a futile act.’’ (Internal
quotation marks omitted.) Barber v. Jacobs, 58 Conn. App. 330, 336, 753
A.2d 430, cert. denied, 254 Conn. 920, 759 A.2d 1023 (2000).
16
It suffices to state that, with respect to the exhaustion of administrative
remedies issue, we are not persuaded by the defendants’ reliance on Haussh-
err-Hughes v. Redenz, Superior Court, judicial district of Danbury, Docket
No. CV-98-0332716 S (January 11, 2000) (26 Conn. L. Rptr. 256), which we
deem to be factually and procedurally distinguishable from the present case.
17
The defendants also argued that they would have presented evidence
concerning the potential harm to them arising from injunctive relief. We
observe that, during his testimony before the trial court, Jeffrey Cashman
testified with respect to what actions he took in an attempt to address the
zoning violations at issue, why he did not bring an administrative appeal,
and how the granting of injunctive relief would impact and harm him.
18
Our review of the trial transcript reveals that the defendants made an
offer of proof on two separate occasions. During argument on the plaintiff’s
motions in limine, the defendants made an offer of proof with respect to
certain police report evidence. The defendants, however, do not appeal from
the court’s ruling on the plaintiff’s motion in limine related to this evidence.
Later, during Jeffrey Cashman’s examination, the defendants attempted to
make an offer of proof with respect to an inspection report that was provided
to Jeffrey Cashman by the Department of Agriculture to demonstrate that
‘‘what he was doing on his property was within generally accepted agricul-
tural practices.’’
19
We note that, although the defendants purport to challenge the court’s
ruling in excluding evidence pertaining to estoppel, they do not adequately
address this issue in their brief, and the record does not contain sufficient
facts to warrant any discussion of harm with respect to the exclusion of
such evidence.