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Watson v. Zoning Board of Appeals of Town of Glastonbury

Court of Appeals of Connecticut

April 23, 2019

CINDY WATSON
v.
ZONING BOARD OF APPEALS OF THE TOWN OF GLASTONBURY

          Argued January 7, 2019

         Procedural History

         Appeal from the decision of the defendant affirming the decision of the defendant's zoning enforcement officer declining to approve the plaintiff's application for permission to conduct a customary home occupation from a home office within her residence, brought to the Superior Court in the judicial district of Hartford, where the court, Robaina, J., granted the plaintiff's motion to cite in the defendant Peter R. Carey; thereafter, the matter was tried to the court, Domnarski, J.; judgment dismissing the appeal, from which the plaintiff, on the granting of certification, appealed to this court. Reversed; judgment directed.

          Kenneth R. Slater, Jr., for the appellant (plaintiff).

          Andrea L. Gomes, with whom was Matthew Ranelli, for the appellees (defendants).

          DiPentima, C. J., and Bright and Beach, Js.

          OPINION

          BRIGHT, J.

         The plaintiff, Cindy Watson, appeals from the judgment of the Superior Court dismissing her appeal from the decision of the defendant Zoning Board of Appeals of the Town of Glastonbury (board), in which the board affirmed the decision of the defendant zoning enforcement officer, Peter R. Carey, declining to approve the plaintiff's application for permission to conduct a customary home occupation from a home office within her residence. On appeal, the plaintiff claims that the Superior Court erred in upholding the decision of the board and dismissing her appeal because the court improperly concluded that (1) the plaintiff needed to prove that her home occupation was ‘‘customary, '' in that other people in Glastonbury also were managing off-site companies from a home office, in addition to establishing that it complied with the specific standards set forth in § 7.1 (b) (2) (a) of the Glastonbury Building Zone Regulations (regulations), and (2) the determining factor of whether a specific customary home occupation is allowed under the regulations is by a consideration of the nature of the business to which the home occupation relates and whether any part of that business is conducted off-site. We reverse the judgment of the Superior Court.

         The record reveals the following uncontested facts. The plaintiff owns and operates a business, Haven Transportation, LLC (business), which provides special transportation services to school districts, using mini-vans. The business has forty-one vehicles and forty-nine employees, and it operates a facility in East Hartford, which has an office and a maintenance facility. Many of the business' minivans are stored at this location or at the homes of the employees who drive them.

         The plaintiff has managed her business from her residence since 2013, in a single room home office. Prior to November, 2015, drivers using the minivans went to the plaintiff's residence, both for business and for social events. Following a complaint, Carey, on November 18, 2015, issued a cease and desist order to the plaintiff. The order alleged that the plaintiff was operating her business outside of the regulations in that (1) a transportation center was not a permitted use, (2) the plaintiff had not obtained the town's approval for a customary home occupation, and (3) the plaintiff was storing as many as eight commercial vehicles at her residence.

         On December 7, 2015, the plaintiff filed an appeal of the cease and desist order with the board. She attached a statement of her reasons for appeal, which set forth, in relevant part: ‘‘The [plaintiff] . . . operates a fully compliant customary home occupation in which she manages, by telephone and electronic communications, the logistics of her business, which provides transportation services to students, primarily those with special needs, using vehicles that are the primary vehicles used by [the plaintiff] and her husband, and a third vehicle, such as a passenger van, that is periodically used for the business. . . . As will be demonstrated at the hearing before the [board], the [plaintiff's] home occupation at the [p]roperty is a secondary use to her family's primary residence and meets all conditions for operating a customary home occupation under the [regulations].''

         During the January 4, 2016 public hearing on the plaintiff's appeal from the cease and desist order, her attorney, Kenneth R. Slater, explained that the plaintiff had hired him one month before the cease and desist order was issued, and that the plaintiff was compliant with all regulations by the time that order was issued. Additionally, following discussions with several members of the board during the hearing, Slater agreed that the plaintiff would file an application for permission to conduct a customary home occupation. He explained that they had not filed previously because the application process was unclear.[1] Carey told the board that he would need more information in the form of an application before he could make a decision regarding the merits of such an application. The minutes of this hearing also reflect that Carey told the board that he had issued the cease and desist order because he had been instructed to do so ‘‘by a higher-up.'' The board unanimously agreed to table the matter.[2]

         Thereafter, on January 8, 2016, the plaintiff submitted her application for permission to conduct a customary home occupation. On January 25, 2016, Carey sent a letter to the plaintiff and her attorney notifying them that he had denied the plaintiff's application, stating, in relevant part: ‘‘[Y]ou do not meet the general intent and spirit of the [c]ustomary [h]ome [o]ccupation [regulations], and also don't meet all the standards set forth in [§ 7.1 (b) (2) (a) of the regulations], specifically items 1, 4, and 8. . . . Items 1 and 4 are based on evidence from complaints and testimony and also from your letter dated [January 8, 2016]. The operation of the home occupation doesn't take place entirely within the home, and has changed the character of the neighborhood. Given past practice, it is apparent that Haven Transport vehicles come and go from the property. . . . Item 8 is based on complaints and testimony of past practices. There is evidence that unsightly conditions of the property have existed and will possibly continue in the future. Therefore I am continuing to uphold my cease [and] desist dated November 18, 2015 and [d]eny your application for a [c]ustomary [h]ome [o]ccupation . . . .'' (Emphasis omitted.) The plaintiff appealed that denial to the board.

         On April4, 2016, the board conducted what appears to have been a rather contentious hearing on the plaintiff's appeal. During the hearing, in response to some com- ments by board members, Slater explained to the board that it was required to conduct a de novo review of the plaintiff's application, rather than merely review the determination of Carey. He then began his presentation to the board. Board chairperson, Timothy Lamb, asked if the business was still being operated out of the residence, and Slater explained that the call center was ongoing, using phones and a computer. Lamb stated that the plaintiff was applying for permission to do something that she already was doing, and that she was acting ahead of her application. Board vice chairperson, Sandra O'Leary, stated that because Carey already had denied the plaintiff's application for permission to have a customary home occupation, she did not understand why the board needed ‘‘to go through all of this again.'' O'Leary also indicated that she had a problem with the plaintiff's operation of the business without the town's permission. Slater stated that the purpose of the hearing was to obtain the town's permission.

         Slater proceeded to introduce evidence, but some members of the board appeared frustrated by his presentation, making comments such as ‘‘we agree . . . that's [the plaintiff's] home office and that's fine. I mean you don't have to swear on a stack of Bibles, '' and ‘‘what's the point?''[3] Slater attempted to explain that he was trying to show that the plaintiff was in compliance with the regulations regarding customary home occupations. Lamb stated that the board knew that the plaintiff had a home office, and that she had employees who came to visit. Slater disagreed with that, and said there was no evidence that employees were visiting the home office any longer. The plaintiff then explained to the board that she had only one employee who came to her home office, and that this person actually works in the home office. She denied that any other employees or applicants for employment come to her home office, or that she conducts meetings at her home office. Slater further explained that the plaintiff allows some employees to take the company vehicles home with them, and that some people who work for the plaintiff's business visit her at home in a personal capacity, not for business. Slater then explained that the plaintiff has asked that they no longer use company vehicles for such visits.

         Slater stated to the board that the plaintiff has brought her home office into compliance with the regulations and that the presentation to the board was meant to demonstrate ‘‘that this business as it's being conducted right now is nothing more than two people in a room making phone calls and [that] one commercial vehicle [which the plaintiff drives on occasion is] being parked [there]. If [the vehicle is] there for longer than driving in and out by [the plaintiff], it is stored in the rear as required by the regulations.'' Vice Chairperson O'Leary interrupted Slater's presentation and stated, in relevant part: ‘‘Well, you know what? It's time for these people to move out. It's not fair for neighbors to see this type of thing. And you know what? There's probably a lot more going on than you're telling us, which I'm- you know, I know it's probably not right for me to say that to you but that's how I feel. We're not attorneys here. You know, we're just volunteers to this [b]oard elected. We try to do a good job for people and try to make everybody happy and make the town good. And I think really it's about time that she realizes that it's just not a good situation to be in in her house.'' Slater attempted to explain that ‘‘the situation is [that the plaintiff] and one woman answer phones and operate- '' but O'Leary interrupted and said she had ‘‘a hard time believing that.'' When Slater then asked the board to listen to the evidence, O'Leary responded that Slater should ‘‘move it along, because . . . this is not a court case.''

         Members of the board then expressed concern to Slater that the plaintiff was operating her home office before getting approval from the town. Slater explained that they were unclear about the regulations and that they had agreed during the January 4, 2016 hearing that they would submit an application for approval of the home office. Additionally, he stated that no one had suggested during that hearing that the plaintiff stop her livelihood during the application process. He also stated: ‘‘We said we were going to apply to show that we were in conformance, and we believe we've done that, and we believe the evidence will show that.''

         Alternate board member, Ed Andreozzi, then stated: ‘‘Correct me if I'm wrong, but I thought we[had] decided that they would remove their [appeal] . . . they would reapply to [Carey], he would make a decision based on the new information, based on what we told them they had to do to change their business. They would change their business, reapply under the new standards. Then [Carey] would decide if that was okay or not, and if it was okay, he would give them a pass; if it was not okay, they would be back before us.'' Lamb stated that was not correct, but others, including Slater, the plaintiff, Andreozzi, and O'Leary stated that Andreozzi was correct. Andreozzi then stated that he believed the board had an obligation to hear Slater and to ‘‘make a decision based on what's happening today with the business, not what happened six months ago.''

         After further discussion with board members, Slater went through all of the requirements set forth in the regulations for a customary home occupation and explained how the plaintiff's office met each one. Slater then questioned one of the road supervisors for the plaintiff's business, Joseph Frederick. Frederick spoke about the business and how it operates. He spoke about the main office in East Hartford, the parking of vehicles, and that the employees had been instructed not to go to the plaintiff's home. He explained that once the plaintiff knew about what she needed to do to comply with the regulations, they immediately put things into place to ensure compliance.

         Slater also questioned Teraya Broaden, the employee who works in the plaintiff's home office. Broaden indicated that no other employees or potential employees come to the plaintiff's residence. She also indicated that, although she occasionally drives a work minivan, she no longer brings that vehicle to the plaintiff's residence.

         The board asked if anyone wanted to speak to the appeal, and one neighbor, Kevin Borsotti, spoke. He stated that his primary concern was the safety of his children. Although he admitted that the plaintiff had been in compliance with the regulations since the prior issuance of the cease and desist order, he remained concerned and thought that the plaintiff's prior actions should be taken into consideration by the board. The board then noted that another neighbor, Michael W. Gilmartin, and his wife, Grace C. Gilmartin, had sent a letter in opposition to the plaintiff's appeal. The letter alleged that the plaintiff was conducting maintenance, overnight parking and dispatch of vehicles, employee interviews, hiring, and employee meetings at her residence. Slater contested the allegations in the letter and told the board that it had heard evidence at the hearing that those things were not being done at the residence and that the plaintiff had a separate facility for those things.

         The board then asked some questions, including asking Carey whether he could issue another cease and desist order if they granted the plaintiff's appeal and she thereafter failed to comply with the regulations, which Carey assured them that he could do. As for the specific reasons that Carey cited in his denial of the plaintiff's application, an unnamed board member asked him about the regulation that requires that the ‘‘customary home occupation shall be carried on entirely within the dwelling unit or within a completely enclosed permitted accessory business on the same lot as the dwelling.'' Carey explained that he had always interpreted that to mean that the entire business was operated in one location, that it is ‘‘not a small piece of a larger entity.'' He further explained that his conclusion that the plaintiff's business did not comply with the regulations because it changed the residential character of the neighborhood was based on the manner in which the plaintiff operated the business.[4]

         After Lamb closed the public hearing portion of the meeting, board member and secretary, Michael Fitzpatrick, offered a motion to deny the plaintiff's appeal, which was seconded by O'Leary. Alternate board member Robyn Guimont stated for the record that she believed that the plaintiff established that she is in compliance with the regulations and that the board should consider approving her appeal. Board member Nicholas Korns also stated that he believed the plaintiff was in compliance. He urged the board to look at the current state of facts and not to rely on the occurrences from six month ago.

         Lamb stated that ‘‘a residential neighborhood is not appropriate for a commercial enterprise.'' He also stated that it was ‘‘unfortunate'' that there were not as many people present as had been present previously. He opined that ‘‘there was a lot of evidence presented that, going forward, it appears that [the plaintiff] may be in compliance. . . . I've had a business, and, you know, I have moved out of my house. You gotta move, you gotta move. I mean, it's good that she's developed a great business, but there comes a time where a residential neighborhood is not the place for a commercial business. And I feel that it's just created a toxic environment in the neighborhood . . . I'm just not-I'm not going to be in favor of it.''

         Korns reminded the board that the regulations allow for a commercial business to be operated in a residential zone, and he, again, opined that the plaintiff was in compliance with the regulations. He also stated that he disagreed with Carey's statement that the business must be wholly contained in the home office. Lamb acknowledge Korns' statement and agreed that the regulations allow for a commercial business, but he stated that he did not credit the testimony that employees no longer go to the plaintiff's residence and stated that ‘‘to [him], it's still a commercial business that's being run in the neighborhood.''

         Fitzpatrick stated that he was ‘‘going to put [his] faith in [Carey] as far as the entirety of the business.'' He further stated: ‘‘I think most of these businesses from what the philosophy of the office is that the building code is that it's a small business, but if it gets beyond that, then you got to move on.'' Fitzpatrick also voiced concern that the plaintiff did not show global positioning system (GPS) updates to prove no business vehicles had been to her residence.[5] He stated that he would be voting to uphold the decision of Carey for those reasons.

         O'Leary stated: ‘‘Okay. I would just like to say one thing, that I'm not in favor of it, and the reason that I'm not in favor of it is because if you look at [the regulations], I do believe a customary home occupation shall not change the residential character of such dwelling, unit and lot. And it definitely has changed the neighborhood drastically. So-and I'm not going to get into who changed it, it's just changed. And so therefore I'm not in favor of it.''

         Andreozzi then stated: ‘‘So I guess I'll just add to that, I am not voting tonight but if I were, I would vote in favor of this.[6] It sounds like we have enough votes to deny this application, which I think is unfortunate. I think that they've made an effort to show they have been compliant tonight, and I think they made a successful effort. You know, we saw no evidence of nonconformity tonight. We had one person actually speak and whether knowingly or not spoke in favor, you know, saying that there was no nonconformity that they were aware of and, you know, I think that in the absence of not having any new evidence over the last several months that they are doing something incorrectly I don't see how you vote against this.

         ‘‘I don't believe it's a commercial enterprise. I think those are the wrong words to use when it's two people in a room answering phones. I mean there's plenty of people that work on their computer and then have their nanny over, you know, if that's the situation. So I don't see the problem.

         ‘‘You know, there's two sides you can error on this. You can vote to shut it down and you're probably permanently shutting down somebody's small business or significantly making it change or moving or making it more expensive or more difficult to operate. Or you can vote for it and we still have [Carey] and his department to monitor the situation and make sure that there is no, you know, falling out of favor with what they're supposed to be doing. So I just leave it at that. I would vote- ...


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