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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 written 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 remedies 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 rendered 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 improperly struck their revised third special defense and thereby prohibited

them from demonstrating that they had a legally protected nonconforming 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 administrative remedies and their admitted violation of multiple zoning regulations, 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 violation 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 complaint 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 evidence; 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 nonconforming 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 defendants 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 defendants 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 authorized by General Statutes § 8-12 for the defendants’ failure to comply with the order to discontinue.

In their answer dated November 5, 2012, the defendants 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 enforcement of the zoning regulations against . . . [the

defendants].’’

The plaintiff filed a ‘‘motion to dismiss and/or strike’’

with respect to the defendants’ counterclaim and special 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 dismissing ‘‘[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 dismissal of their entire counterclaim ‘‘until a final judgment 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 violations 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 premises’’; ‘‘have stockpiled, and continue to stockpile, wood

materials, including wood, wood chips and compost,

beyond what is required for personal use on the premises and in contact with vegetation’’; ‘‘have parked, and

continue to park, several commercial vehicles which

exceed the maximum vehicle weight limit on the premises’’; ‘‘have parked, and continue to park, more than

one commercial vehicle within the vehicle weight limit

on the premises’’; ‘‘have stockpiled and stored, and continue to stockpile and store, materials and equipment

outside on the premises, including mulch, logs, firewood, 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 recreational 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 without a permit’’; ‘‘have kept, and continue to keep, chickens and ducks on the premises without a permit and

in excess of a total of ten’’; ‘‘have conducted, and continue to conduct, a farming operation of raising, keeping

and caring for livestock, poultry and ducks on the premises without a permit or special exception’’;5 and have

‘‘kept, and continue to keep, livestock on the premises

without any covered watertight container or containment 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 permanent 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 November 15, 2012, and further just and equitable relief
deemed appropriate by the court.

The defendants filed an answer to the amended complaint 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 operation, 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 premises 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 defendants 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 inasmuch 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 § 19a341.9 The defendants filed an opposition to the motion

to strike the third special defense. After the court, Aurigemma, 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 plaintiff had induced the defendants to engage in the activities 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 addition 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 previously 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) demonstrating that relevant actions or decisions had been

undertaken or made by any Clinton individuals or agencies other than the Clinton zoning authority; (4) demonstrating 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 nonconforming farm use of the subject premises. The defendants 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 conducted 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 explosion, 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 storage yards, as permitted uses, are prohibited in the R80 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 equipment 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 activities 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 fifteen (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 counsel, 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 discontinue 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. Additionally, the court found that, after the plaintiff issued

the April 16, 2012 order, which described the defendants’ 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 stockpiling 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 warning 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 regulations. The notice reminded the defendants of their

previous agreements to bring the premises into compliance 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 Department 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 enforcement 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 machinery on the premises. [Knapp] testified that [Jeffrey Cashman] 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 connection 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 discontinue 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 defendants’ 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 blatantly and defiantly violated multiple zoning regulations, 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 November 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 farmland 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 defendants’ 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 demonstrate that the plaintiff had engaged in activities that

induced them to engage in the conduct at issue at the

subject premises. Additionally, Judge Aurigemma concluded that, insofar as the defendants had revised the

special defense to include a claim pursuant to § 19a341, 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 defendants admittedly failed to appeal the [zoning enforcement 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 subject 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 owners with nonconforming uses and, because of the egregious 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 ‘‘prohibited [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 assertion 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 defendants 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 special defense that they had a legally protected right to

continue to conduct nonconforming farming activities

at the subject premises.11 Before discussing the propriety 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 omitted.) 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 substitute 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 ruling on the motion to strike on May 10, 2013, the defendants 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 complaint. In their answer to the amended complaint, the

defendants included two special defenses of nonconforming 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 striking 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 plaintiff’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 procedural history presented in the present case and, thus,

could be considered to be binding authority with

respect to the issue. Lacking clearly applicable precedent, 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 consider 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 property, 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 regulations 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 interpretation of a statute is required.’’ During argument on

the motion, the defendants’ attorney reiterated that the

defendants intended by their special defense to challenge 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 regulations 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 prohibiting 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 regulations 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 nonconforming uses. They argue that ‘‘[s]uch behavior is a violation

of the defendants’ statutory and constitutional rights

that are attached to property owners with nonconforming uses . . . .’’

The defendants argue that the present case falls into

one of the narrow exceptions to the exhaustion doctrine. 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 constitutionally 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 simply ‘‘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 defendants clarified that the timing of the plaintiff’s enforcement 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 previously, 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 defendants 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 arguments that were neither raised before nor addressed

by the court.

Even if we were to consider the merits of the arguments 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 jurisdictional 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 favorable 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 presumption 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 ‘‘constitutional 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 infrequently and only for narrowly defined purposes. . . .

One such exception involves a challenge to the constitutionality 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 constitutional 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 constitutional 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 futility 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 constitutionality 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 zoning regulations at issue, which are unaccompanied by

any legal analysis, a careful review of the substance of

the defendants’ arguments reveals that the ‘‘constitutional 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 regulations at issue, they had a constitutionally protected

preexisting use resulting from their activities on the

subject premises prior to January 1, 2012. As the defendants acknowledge ultimately, their special defense
was meant to challenge ‘‘the unconstitutional result of

the plaintiff’s illegal enforcement,’’ but not the constitutionality of the regulations that the plaintiff purported

to enforce. (Emphasis added.) The defendants’ constitutional challenge to the plaintiff’s activities does not

excuse their failure to avail themselves of the administrative 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 administrative 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 decision 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 previously 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 reliance 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 permitted. 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 parties—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 surrounding [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 discontinue, 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 nonconforming 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 opportunity 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 defendants 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 second motion pertained to evidence offered for the purpose 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 Domnarski’s prior ruling that struck the defendants’ special

defense, the fact that the defendants had voluntarily
withdrawn their special defenses related to nonconforming 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 Aurigemma’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 provide 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 concerning 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 permanent 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 consider 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 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. . . . The evidence that the

defendants seek to admit will provide the court with

evidence that is necessary for the determination regarding 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 plaintiff’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 discretion 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 evidence 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 equitable considerations that were before the court, the defendants’ 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 otherwise 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 plaintiff’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 presented 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 rulings 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 property, the plaintiff’s inspections of the property, town

regulation of the property and the defendants’

responses to the orders to discontinue.’’ (Internal quotation 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 evidence 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 constitutional 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 exception 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 remedies, (2) Judge Domnarski previously struck the special

defense of nonconforming use, and (3) the court previously struck the special defense of equitable estoppel.

The defendants urge us to reconsider whether the evidence 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 nonconforming use.

We recognize that the function performed by the

court in issuing the challenged evidentiary ruling dictates 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 speculate 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 existence 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 plaintiff 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 evidence, 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 regulations, 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 equitable 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 nonconforming 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 terminate 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 accompanied 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 nonconforming 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 concerning the continuance of a nonconforming use protects 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 Commission, 225 Conn. 731, 744, 626 A.2d 705 (1993).

Although the defendants bear the burden of demonstrating 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 evidence, 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 nonconforming. 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. Specifically, 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 regulations and manifested to the plaintiff an intent to continue 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 enforcement 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 withdrew 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 regulations of the town of Clinton, which use has been established and operated

by the defendants and their predecessors in ownership of said property for

a period of at least thirty (30) years.
‘‘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 Clinton zoning regulations.’’

9 General Statutes § 19a-341 provides in relevant part: ‘‘(a) Notwithstanding 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 cultivation operations, (4) use of chemicals, provided such chemicals and the

method of their application conform to practices approved by the Commissioner 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 premises. 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 counterclaim 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 Haussherr-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 agricultural 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.