Background
Steven Berglass, as trustee of his revocable living trust, filed suit in July 2022 against his neighbors Heidi and Jay Dworkin over a fence the Dworkins had constructed on their property in Milford, Connecticut, adjacent to Berglass’s property on Kings Highway. Berglass sought injunctive relief, claiming the fence violated local zoning regulations and was “encroaching and overlapping” his land. He also filed a motion for a temporary injunction and an order to show cause. This was one of two related actions between the neighbors—a separate case involving a swimming pool was decided by the Appellate Court in 2025.
There was a critical timing problem. The fence had already been completed in June 2022—before Berglass even filed suit. In August 2024, the Dworkins moved to dismiss for lack of subject matter jurisdiction, arguing the completed construction rendered the injunction claim moot and that Berglass had failed to exhaust administrative remedies through the municipal zoning process.
At the hearing on the motion, Berglass’s own counsel conceded that the fence was not actually on Berglass’s property. Berglass attempted to recast his claim as one for “specific performance”—i.e., removal or alteration of the fence—and raised new arguments about diminished property values and aesthetic harm. The trial court (Noble, J.) granted the dismissal on both grounds.
The Court’s Holding
The Connecticut Appellate Court affirmed the dismissal in a per curiam decision. On mootness, the court agreed that because the fence was already built when Berglass filed suit, there was nothing to enjoin, and the claim for declaratory and injunctive relief was moot. Berglass’s attempt to argue for “specific performance” failed because his complaint never specifically requested that relief. His catch-all prayer for “[s]uch other and further relief as law and equity may provide” was insufficient to put the defendants on notice. Citing Sovereign Bank v. Harrison, 184 Conn. App. 436 (2018), the court emphasized that broad construction of pleadings “does not mean that we may read into the [plaintiff’s complaint] a prayer for relief or factual allegations that simply are not there.”
On the exhaustion issue, the court applied the narrow exception that allows property owners to bypass municipal zoning channels and sue directly in Superior Court—but only when they allege “specific and material damage” from the zoning violation. Berglass’s complaint was “devoid of any assertion of specific and material damage”; it alleged only boilerplate “immediate and irreparable harm.” New arguments about aesthetic harm, obstructed views of Long Island Sound, and diminished property values were never in the complaint and could not be raised for the first time on appeal. The court cited the Connecticut Supreme Court’s admonition in Cummings v. Tripp, 204 Conn. 67 (1987), underscoring “the necessity for clear and precise allegations of specific and material claims of damage” to invoke this exception.
Key Takeaways
- A plaintiff seeking injunctive relief to prevent construction must file before the construction is complete; once the work is done, a claim to “enjoin” construction is moot unless the complaint specifically seeks demolition or alteration.
- The private enforcement exception to Connecticut’s exhaustion of administrative remedies doctrine requires specific, concrete allegations of harm in the complaint—boilerplate “irreparable harm” language is insufficient.
- Arguments not raised in the original complaint cannot be introduced for the first time in opposition to a motion to dismiss or in an appellate reply brief.
Why It Matters
This decision reinforces two fundamental principles for Connecticut litigators handling zoning and land-use disputes. First, timing matters: if the complained-of construction has been completed, the complaint must specifically request remedial relief such as removal or alteration—a general prayer clause will not save the claim. Second, the private zoning enforcement exception under Connecticut law demands real pleading specificity. Practitioners who rely on vague allegations of harm without articulating concrete, measurable damage risk dismissal at the threshold. The case also serves as a cautionary tale about concessions at oral argument: counsel’s admission that the fence was not on the plaintiff’s property fatally undermined the encroachment allegation on which the entire complaint rested. Additionally, the defendants had obtained approvals from the Milford Planning and Zoning Board for the fence, further weakening the zoning violation premise. Practitioners should ensure their clients have exhausted or properly exempted themselves from administrative remedies before filing suit, and should draft complaints that go well beyond boilerplate to articulate the concrete harms their clients have suffered.