179 Conn. App. 394
Conn. App. Ct.2018Background
- The Town of Clinton zoning enforcement officer (Lane/Knapp) issued two orders to discontinue (Apr 16, 2012 and Nov 15, 2012) for defendants Jeffrey and Patricia Cashman for keeping cows without a permit, a metal corral within setback, and multiple commercial/processing and storage activities in an R-80 residential zone. Defendants did not appeal either order to the Zoning Board of Appeals within the 15‑day statutory period.
- Plaintiff sued for permanent and mandatory injunctions enforcing the orders, civil penalties under § 8‑12, and attorney’s fees. Parties stipulated most operative facts, including the defendants’ ongoing violations and failure to appeal.
- Defendants pleaded special defenses asserting (initially) nonconforming farm and nursery uses predating the 2012 regulation changes, municipal estoppel, and reliance on Conn. Gen. Stat. § 19a‑341; the trial court (Domnarski J.) struck the original nonconforming‑use defense for failure to exhaust administrative remedies.
- Defendants deleted two nonconforming defenses in response to a request to revise; they repleaded a third defense but the trial court (Aurigemma J.) struck it in full (insufficient municipal‑estoppel facts and improperly reasserting nonconforming/use claims).
- The trial court granted plaintiff’s motions in limine excluding evidence that would collaterally attack the orders, show municipal estoppel, or prove a lawful nonconforming farm use. After a bench trial the court entered judgment for plaintiff with injunction, fines, and attorney’s fees. Defendants appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants could litigate a claimed preexisting nonconforming farm use without first appealing the orders to the ZBA | Knapp: defendants failed to exhaust the statutory administrative remedy (§ 8‑7); striking the defense and precluding collateral attack was proper. | Cashman: constitutional property rights / nonconforming‑use claim made exhaustion futile; they should be allowed to litigate the claim in court. | Court: Affirmed — exhaustion required; no showing that the ZBA lacked authority or that appeal would be futile; nonconforming claim must be raised administratively. |
| Whether a constitutional challenge to enforcement excused failure to appeal | Knapp: constitutional flavor does not excuse exhaustion absent demonstrable futility or inability of the board to provide relief. | Cashman: enforcement eliminated constitutionally protected nonconforming rights and thus they could bypass administrative appeal. | Court: Rejected defendant — mere constitutional claim insufficient; exceptions are narrow and not met here. |
| Whether trial court erred by granting motions in limine excluding evidence that would challenge the orders or show nonconforming use / estoppel | Knapp: exclusion follows from prior strikes and the defendants’ failure to appeal; such evidence would improperly convert the trial into the administrative review the defendants skipped. | Cashman: excluded evidence was necessary for equitable balancing (gravity, wilfulness, hardship) in injunction analysis. | Court: No reversible error — defendants failed to show how excluded evidence likely affected the outcome; undisputed facts supported injunction. |
| Whether the Upjohn/Gelinas exception to exhaustion applied because enforcement was allegedly extreme or outside legitimate zoning power | Knapp: no; defendants’ conduct did not meet the very high standard for permitting a collateral attack or bypassing appeal. | Cashman: plaintiff’s prompt enforcement after regulation change was egregious and eliminated nonconforming rights, justifying immediate court review. | Court: Exception not satisfied — facts did not show the enforcement was so outside zoning power or that reliance on administrative process was unjustified. |
Key Cases Cited
- Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1 (1988) (recognizes narrow exceptions to exhaustion, including futility and constitutional‑validity challenges to a regulation itself).
- Stepney, LLC v. Fairfield, 263 Conn. 558 (2003) (mere allegation of constitutional violation does not excuse exhaustion; relief must be demonstrably unavailable from agency).
- Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96 (1992) (describes narrow, exceptional circumstances where collateral attack might be allowed if condition is so outside zoning power).
- Gelinas v. West Hartford, 225 Conn. 575 (1993) (statutory scheme contemplates resolution of nonconforming‑use questions first by local officials; collateral attack improper where appeal was available and not taken).
- Greenwich v. Kristoff, 180 Conn. 575 (1980) (refusal to adjudicate nonconforming‑use claim where administrative appeal was the proper initial remedy).
- Conto v. Zoning Commission, 186 Conn. 106 (1982) (administrative remedies need not be exhausted when the remedy is futile or inadequate).