Watson v. Zoning Bd. of Appeals of the Town of Glastonbury

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CINDY WATSON v. ZONING BOARD OF APPEALS
OF THE TOWN OF GLASTONBURY
(AC 41209)
DiPentima, C. J., and Bright and Beach, Js.
Syllabus
The plaintiff appealed to the trial court from the decision by the defendant
zoning board of appeals affirming the decision of the defendant 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. The plaintiff owns and operates a business
providing special transportation services off-site to school districts, and
she manages the business from a home office in her residence where she
and another employee use computers and make phone calls. Following
a complaint, the zoning enforcement officer issued a cease and desist
order to the plaintiff, from which she appealed to the board, which
agreed to table the matter. Thereafter, the plaintiff filed her application
for permission to conduct a customary home occupation, which was
also denied, and the board denied the plaintiff’s appeal therefrom. The
trial court subsequently rendered judgment dismissing the plaintiff’s
appeal from the board’s decision, from which the plaintiff, on the grant-
ing of certification, appealed to this court. Held:
1. The trial court erred in concluding that the plaintiff needed to prove that
her home occupation was customary, in that other people in her town
also were managing off-site companies from their home offices, in addi-
tion to establishing that she complied with the specific standards set
forth in the town building zone regulations; the management of a busi-
ness from a single room home office, within a person’s primary resi-
dence, that complies with the specific standards of the regulations, is
a customary home occupation that is customarily incidental and subordi-
nate to the actual principal use of the property, the town set forth very
specific factors to be employed in its determination of whether an
accessory use, in the form of a customary home occupation, is permitted
in a residential zone, and there was no separate and distinct test that
an applicant must meet in order to satisfy the word ‘‘customary.’’
2. The trial court erred in concluding that the board acted reasonably in
denying the plaintiff’s application simply because her home occupation
was part of a larger business that took place off-site; pursuant to the
applicable regulation, the occupation being conducted at the residence
must take place either inside of the residence or in an enclosed approved
accessory building on the premises, there was nothing in the plain
language of the regulation that prohibits a home occupation that is part
of a larger enterprise located off-site, it was undisputed that the plaintiff’s
application contemplated that her entire home occupation would take
place within her dwelling and not outside on her property, and, therefore,
the board had no evidence on which to deny her application for failing
to comply with the regulations.
Argued January 7—officially released April 23, 2019
Procedural History
Appeal from the decision of the defendant affirming
the decision of the defendant’s zoning enforcement offi-
cer 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; there-
after, the matter was tried to the court, Domnarski, J.;
judgment dismissing the appeal, from which the plain-
tiff, 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).
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 ‘‘cus-
tomary,’’ 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 spe-
cific standards set forth in § 7.1 (b) (2) (a) of the Glas-
tonbury Building Zone Regulations (regulations), and
(2) the determining factor of whether a specific custom-
ary 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 Hart-
ford, which has an office and a maintenance facility.
Many of the business’ minivans are stored at this loca-
tion or at the homes of the employees who drive them.
The plaintiff has managed her business from her resi-
dence 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 transpor-
tation 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 transporta-
tion 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 hear-
ing 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 [reg-
ulations].’’
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 mem-
bers 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 applica-
tion 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 [regu-
lations], 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 let-
ter 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 prop-
erty 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 April 4, 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 resi-
dence, 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 pre-
sentation, 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 occupa-
tions. 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 employ-
ees 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 regu-
lations and that the presentation to the board was meant
to demonstrate ‘‘that this business as it’s being con-
ducted 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 cor-
rect. 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 indi-
cated 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 res-
idence.
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 res-
idence. 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 ask-
ing 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 Fitzpa-
trick, offered a motion to deny the plaintiff’s appeal,
which was seconded by O’Leary. Alternate board mem-
ber Robyn Guimont stated for the record that she
believed that the plaintiff established that she is in com-
pliance 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 resi-
dential neighborhood is not the place for a commercial
business. And I feel that it’s just created a toxic environ-
ment 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 acknowl-
edge 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 position-
ing 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 dwell-
ing, unit and lot. And it definitely has changed the neigh-
borhood 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 perma-
nently shutting down somebody’s small business or sig-
nificantly 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—
you know, I would not vote in favor of shutting down
somebody’s business when we have time to show con-
formity.’’ (Footnote added.)
Because of some confusion about the negative
motion that Fitzpatrick had made, he, thereafter,
amended his motion to approve the appeal of the plain-
tiff. Korns seconded the modified motion. Following
more confusion over what a yes vote meant, the board
voted two to three against granting the plaintiff’s appeal,
with Korns and Guimont voting to grant the appeal,
and Lamb, O’Leary, and Fitzpatrick voting to deny the
appeal. Andreozzi could not vote because he had the
nonvoting role of an alternate at the meeting. The board
did not set forth a collective statement of the reasons
for upholding the denial of the plaintiff’s application.
On April 7, 2016, the board provided public notice of
its decision denying the plaintiff’s appeal by publication
in the Glastonbury Citizen newspaper by means of a
simple denial. Pursuant to General Statutes § 8-8 (b),
the plaintiff, thereafter, appealed from the board’s deci-
sion to the Superior Court.
The Superior Court, after searching the record for
the basis of the board’s decision, concluded that the
board improperly relied on past events, but that it, none-
theless, properly denied the plaintiff’s appeal. The court
reasoned that (1) the plaintiff’s business was not ‘‘cus-
tomary’’ because there was no proof that other residents
of Glastonbury also managed off-site companies from
their residential home offices, and (2) the plaintiff’s
home occupation did not comply with § 7.1 (b) (2) (a)
(1) of the regulations because it was part of a larger
enterprise that occurred off-site. This appeal followed.
On appeal, the plaintiff claims that the court erred in
upholding the board’s decision. Specifically, she claims
that the court improperly concluded that (1) the plaintiff
needed to prove that her home occupation was ‘‘cus-
tomary,’’ in that other people in Glastonbury also were
managing off-site companies from their home office,
and (2) the determining factor of whether a specific
customary home occupation is allowed under the regu-
lations is by a consideration of the nature of the busi-
ness to which the home occupation relates and whether
any part of that business is conducted off-site. After
setting forth our standard of review, we will address
each of the plaintiff’s claims in turn.
‘‘A zoning enforcement officer acting on an applica-
tion for a zoning permit has a purely ministerial func-
tion. . . . If the application conforms to the
requirements of the regulations, he has no discretion
but to issue a permit.’’ (Citations omitted.) Maluccio v.
Zoning Board of Appeals, 174 Conn. App. 750, 756, 166
A.3d 69 (2017).
‘‘[F]ollowing an appeal from the action of a zoning
enforcement officer to a zoning board of appeals, a
court reviewing the decision of the zoning board of
appeals must focus, not on the decision of the zoning
enforcement officer, but on the decision of the board
and the record before the board. . . . [T]he zoning
board of appeals makes a de novo determination of the
issue before it, without deference to the actions of the
zoning enforcement officer. . . .
‘‘[T]he board is endowed with liberal discretion and
. . . its actions are subject to review by the courts only
to determine whether they are unreasonable, arbitrary
or illegal. . . . The burden of proof to demonstrate that
the board acted improperly is upon the party seeking
to overturn the board’s decision. . . . It is the board’s
responsibility, pursuant to the statutorily required hear-
ing, to find the facts and to apply the pertinent zoning
regulations to those facts. . . . Upon an appeal from
the board, the court must focus on the decision of the
board and the record before it. . . .
‘‘In reviewing a decision of a zoning board, a
reviewing court is bound by the substantial evidence
rule, according to which, [c]onclusions reached by [the
board] must be upheld by the trial court if they are
reasonably supported by the record. The credibility of
the witnesses and the determination of issues of fact
are matters solely within the province of the [board].
. . . The question is not whether the trial court would
have reached the same conclusion, but whether the
record before the [board] supports the decision
reached. . . . If the trial court finds that there is sub-
stantial evidence to support a zoning board’s findings,
it cannot substitute its judgment for that of the board.
. . . If there is conflicting evidence in support of the
zoning [board’s] stated rationale, the reviewing court
. . . cannot substitute its judgment as to the weight of
the evidence for that of the commission. . . . The
agency’s decision must be sustained if an examination
of the record discloses evidence that supports any one
of the reasons given.’’ (Citations omitted; footnote omit-
ted; internal quotation marks omitted.) Woodbury
Donuts, LLC v. Zoning Board of Appeals, 139 Conn.
App. 748, 757–60, 57 A.3d 810 (2012). Where, as here,
the board does not state formally the reasons for its
decision, ‘‘the trial court must search the record for a
basis for the board’s decision.’’ (Internal quotation
marks omitted.) Moon v. Zoning Board of Appeals, 291
Conn. 16, 25, 966 A.2d 722 (2009).
When applying the specific regulations of a town,
‘‘[g]enerally, it is the function of a zoning board or
commission to decide within prescribed limits and con-
sistent with the exercise of [its] legal discretion,
whether a particular section of the zoning regulations
applies to a given situation and the manner in which it
does apply. The [Superior Court must] decide whether
the board correctly interpreted the section [of the regu-
lations] and applied it with reasonable discretion to the
facts. . . .
‘‘A local board or commission is in the most advanta-
geous position to interpret its own regulations and apply
them to the situations before it. . . . Although the posi-
tion of the municipal land use agency is entitled to some
deference . . . the interpretation of provisions [of a
municipal zoning regulation] is nevertheless a question
of law for the court. . . . The court is not bound by the
legal interpretation of the [regulation] by the [board].’’
(Internal quotation marks omitted.) Lowney v. Zoning
Board of Appeals, 144 Conn. App. 224, 228–29, 71 A.3d
670 (2013).
I
The plaintiff claims that the court erred in concluding
that she needed to prove that her home occupation was
‘‘customary,’’ in that other people in Glastonbury also
were managing off-site companies from their home
offices, in addition to establishing that she complied
with the specific standards set forth in the regulations.
She argues that Glastonbury has adopted specific stan-
dards in its regulations that govern the location, size,
nature of the use, parking, and signage for customary
home occupations, and that it has chosen not to list
specific authorized home occupations. She contends,
therefore, that any home occupation, using a home
office, which meets all of the standards, necessarily
qualifies as a customary home occupation. Otherwise,
she argues, ‘‘customary’’ would be determined on a
case-by-case basis with no relationship to the regula-
tions. This would give a zoning enforcement officer
(officer) unfettered discretion to deny an application
or to issue a cease and desist order to any resident who
has a home occupation that fully complies with every
regulation, but who, nevertheless, has a home occupa-
tion that the officer thinks is a bit unusual or involves
new technology, despite the fact that it has no impact
on the residential character of the neighborhood and
complies with the specific standards set forth in the
regulations. She further argues, however, that even if
‘‘customary’’ is something outside of the strict require-
ments of § 7.1 (b) (2) (a), her home office is customary
in that she uses only computers and telephones to man-
age her business from a single office in her residence.
The board argues that the plaintiff was required to
prove that her home occupation was customary, and,
in this case, that meant that she needed to prove, specifi-
cally, that managing a transportation company is a cus-
tomary residential home occupation in Glastonbury. It
further argues: ‘‘Contrary to [the] plaintiff’s assertion,
and as held by the [Superior Court], the regulations
specify that, in addition to satisfying the twelve perfor-
mance standards in [§] 7.1 (b) (2) (a) [of the regula-
tions], the plaintiff must also satisfy the definition of
customary ‘home occupation’ in [§] 2.22: ‘Home Occupa-
tion—A use, not otherwise permitted in the zone, which
is customarily and may properly be conducted for com-
pensation as an accessory use on a residential lot (See
[§] 7).’ . . . The definition of ‘home occupation’
requires that the use be ‘customarily’ and ‘properly’
conducted in a home as an accessory use. An accessory
use must also be a use ‘customarily incidental and sub-
ordinate to the actual principal use . . . .’ ’’ (Citation
omitted.)
After thoroughly reviewing the regulations at issue,
and fully considering the briefs and arguments of the
parties, we conclude that the management of a business
from a single room home office, within a person’s pri-
mary residence, that complies with each of the specific
standards set forth in § 7, is a customary home occupa-
tion that is customarily incidental and subordinate to
the actual principal use of the property as a primary
residence under the regulations.
‘‘The phrase used in most zoning regulations is that
[an accessory] use must be ‘customarily incidental to’—
not that the use must be ‘customary.’ If the rule intended
that only customary uses could come under the doc-
trine, then many or most people in the area would have
to be doing the same thing before any one of them
could (unless they asked government permission first).
. . . [W]e would still have horse stables instead of gar-
ages in our residential neighborhoods; someone has to
be first if a use is ever to become customary.’’ T. Tondro,
Connecticut Land Use Regulation (2d Ed. 1992) p. 85.
‘‘Several factors . . . are weighed when making an
accessory use decision. The relative scale of the acces-
sory use and its usual relationship to the primary use
of the property must be considered. Ultimately the deci-
sion comes down to balancing an owner’s right to use
his land for more than simply providing food and shel-
ter, against the neighbors’ expectations of what will
happen in their neighborhood and the degree of impact
the accessory use will have on the neighbors’ right to
use their land.’’ (Footnote omitted.) Id., 87–88.
‘‘A decision to deny . . . administrative review
applications, or to subject them to conditions . . .
must be based on sufficiently specific authority in the
regulations to support a conclusion that the decision
made is in accordance with the policies established by
the legislatively acting commission that established the
policy in the first place. Much of the litigation over
the approval of one of these applications turns on the
degree of specificity required in the governing regula-
tions. . . .
‘‘The requirement that standards be published prior
to an agency’s action applies even if the agency author-
ized to grant the administrative approval is the munici-
pal legislative body . . . . [I]t is the function
performed rather than the source of power of the board
that requires that the board act pursuant to standards.
The standards are meant to guide the agency’s deci-
sions; it must consider the factors listed in the regula-
tions when making its decision, and only those factors.
Moreover, if these standards are satisfied, the permit
must be issued. The commission acts in an administra-
tive capacity when issuing an administrative approval,
and administrative agencies do not have the discretion
to deny an application that satisfies all the criteria estab-
lished by the legislative body for commission action.
This is simply another way of saying that an administra-
tive agency can only base its decisions on criteria in
its published regulations.’’ (Footnotes omitted; internal
quotation marks omitted.) Id., 188–91.
In the present case, § 2.2 of the regulations defines
accessory use as: ‘‘A use of land or a portion of a struc-
ture or building customarily incidental and subordinate
to the actual principal use of the land, structure or
building and located on the same lot with such principal
use, structure or building.’’
Section 2.22 of the regulations defines a home occu-
pation as: ‘‘A use, not otherwise permitted in the zone,
which is customarily and may properly be conducted
for compensation as an accessory use on a residential
lot (See [§] 7).’’
The plaintiff’s residence is located in the town’s resi-
dential zone A, which is governed by § 4.5 of the regula-
tions. Section 4.5.2 lists the permitted accessory uses
in the A zone. Customary home occupation is listed as
an accessory use, subject to the provisions set forth in
§ 7.0 of the regulations.
Section 7.1 of the regulations provides in relevant
part: ‘‘Accessory uses and structures associated with
residential uses located in the residence zones or on
lots in non-residence zones on which permitted or non-
conforming residential uses are situated shall be subject
to the condition that no such use or structure shall
[involve] the conduct of a business or sale of a project,
or a service, except a home occupation, a boarding,
rooming or lodging house or a roadside stand, all as
hereinafter limited, and to the following conditions:
‘‘a. Customary Accessory Uses and Structures
‘‘1. Permitted customary accessory uses and struc-
tures. Customary accessory uses and structures are per-
mitted in the residence zones and on lots on non-
residential zones on which permitted or non-conform-
ing residential uses are situated, and may include but
are not limited to: dog house, greenhouse, tool shed
or storage building, children’s playhouse, tennis court,
laundry room, hobby room or mechanical room, play-
ground or recreation area, and garden. . . .
‘‘b. Special Accessory Uses and Structures
‘‘1. Permitted special accessory uses and structures.
Special accessory uses and structures are permitted in
the residence zones and on lots in non-residence zones
on which permitted . . . non-conforming residential
uses are situated as set forth in Section 4 of these
Regulations and shall be subject to such additional con-
ditions as are set forth herein. Special accessory uses
and structures shall include: customary home occupa-
tion, garage or carport and the parking of a commercial
vehicle, the parking or storage of a boat, trailer or
mobile home, guest house, bathing or swimming pool
and bath house, roadside stand, the stabling of horses
(and) the keeping and housing of livestock or poultry
for domestic purposes on, and traditional professional
medical/dental care facility. . . .
‘‘2. Conditions for special accessory uses and struc-
tures. In addition, the requirements for height, location
and maximum land area for customary accessory uses
and structures, special accessory uses and structures
shall be subject to the following conditions:
‘‘(a.) Customary home occupation. A customary
home occupation shall be subject to the following pro-
visions:
‘‘1. A customary home occupation shall be carried on
entirely within the dwelling unit or within a completely
enclosed permitted accessory building on the same lot
as the dwelling unit.
‘‘2. A customary home occupation shall be carried
on by the inhabitants of such dwelling unit and shall
involve the employment on the premises of only any
member of the immediate family residing in such dwell-
ing unit plus one person, full or part time, not residing
in such dwelling unit.
‘‘3. A customary home occupation shall be clearly
incidental and secondary to the use of such dwelling
unit and lot for residential purposes.
‘‘4. A customary home occupation shall not change
the residential character of such dwelling unit and lot.
‘‘5. A customary home occupation, whether contained
in a dwelling unit or in an accessory building, shall
occupy an area not to exceed twenty-five percent (25%)
of the gross floor area of such dwelling unit.
‘‘6. A customary home occupation shall not offer,
display or advertise any commodity or service for sale
or rental on the premises.
‘‘7. A customary home occupation shall not store any
materials or products on the premises outside of the
dwelling unit or the permitted accessory building in
which it is located.
‘‘8. A customary home occupation shall not create
any objectionable noise, odor, vibrations or unsightly
conditions.
‘‘9. A customary home occupation shall not create a
health or safety hazard.
‘‘10. A customary home occupation shall not create
interference with radio and television reception in
the vicinity.
‘‘11. Signs associated with customary home occupa-
tion shall be limited to one identification sign per dwell-
ing unit, such sign not to exceed [more] than two (2)
square feet in area.
‘‘12. The Building Official may, at his discretion, for
good cause such as a non-customary use, potential
excessive noise, storage of materials or parking, [refer]
any question concerning a customary home occupation
to the Town Plan and Zoning Commission for its review
and recommendations. The Town Plan and Zoning Com-
mission shall have thirty (30) days from its receipt of
the application from the Building Official within which
to forward its report of findings and recommendations
to the Building Official. Said report of the Town Plan
and Zoning Commission shall be advisory only, and the
failure of the Town Plan and Zoning Commission to
submit its report within the prescribed thirty (30) day
period shall not prevent the Building Official from
reaching a decision on the application for the customary
home occupation after the prescribed thirty (30) day
time period has expired.’’
Section 9.0 of the regulations concerns parking. Sec-
tion 9.11 (a) specifically addresses parking for custom-
ary home occupations: ‘‘The following off-street parking
standards are minimum requirements for off-street
parking and the Town Plan and Zoning Commission
may require additional off-street parking for a particular
development based on the nature of the development,
its location, access and relation to surrounding develop-
ment, and any unique parking demand which may be
associated with such a development. . . .
‘‘a. Customary home occupation: One (1) parking
space for each employee plus two (2) parking spaces,
such parking spaces to be in addition to any required
off-street parking for residential purposes.’’
The plaintiff contends that a review of the regulations
reveals that a ‘‘customary home occupation’’ is one that
complies with § 7.1 (b) (2) (a) of the regulations. She
argues that requiring her to prove a standard of ‘‘cus-
tomary’’ that is not set forth in the regulations is
improper, especially in light of the specificity of the
standards set forth in the regulations regarding custom-
ary home occupations. She further argues, however,
that even if the word ‘‘customary’’ in the regulations is
meant to convey something beyond the specific require-
ments of § 7.1 (b) (2) (a), her home occupation is cus-
tomary in that she uses only a computer and telephones
to manage her business from a single office in her pri-
mary residence. We conclude that a home occupation
that satisfies the specific standards set forth in § 7.1
(b) (2) (a) is a customary home occupation under the
regulations; there is no separate and distinct test that
an applicant must meet in order to satisfy the word
‘‘customary.’’ Rather, if an applicant meets the stan-
dards, the home occupation is customary under the
regulations as adopted by the town of Glastonbury.
‘‘There have always been some who worked in their
homes, but there are many more now with the advent
of the personal computer and ‘telecommuting.’ ’’ 6 E.
Yokley, Zoning Law and Practice (4th Ed. 2013) § 44-
5, p. 44-27. ‘‘[P]ublic interference with a person’s hob-
bies, or with his [or her] preference to work at home,
raises sensitive issues on the nature of freedom, in a
quite different way from the familiar situation where
a businessperson or developer complains that zoning
restrictions have abridged his or her freedom to make
more money from land.’’ 4 N. Williams, Jr. & J. Taylor,
American Land Planning Law (Rev. Ed. 2018) § 79:1.
‘‘The principal problem with [accessory uses] is . . .
their impact on the residential area nearby—primarily
in the traditional terms of the common-law nuisances
but also in terms of various other objectionable factors
with which residential zoning is normally concerned.
. . . Various activities and/or structures may affect the
appearance of the neighborhood . . . . The factors
found objectionable are sometimes more spiritual in
nature . . . . [M]any of these secondary activities, and
particularly the non-income-producing ones, involve
rights of a personal sort, and such rights involve consid-
erations which are quite different from those involved
in the usual cases where a developer wishes to use land
for some more profitable activity.’’ Id., § 79:5.
 In the present case, the Superior Court concluded
that the board properly determined that a home occupa-
tion had to be ‘‘customary’’ in the town, and that the
establishment of what is ‘‘customary’’ is an additional
requirement over and above all of the specific standards
set forth in the regulations. Specifically, the court held
that ‘‘the plaintiff had the burden to establish that home
occupations similar to hers are in fact customarily con-
ducted in the zoning district in which the subject prop-
erty is located. . . . The plaintiff did not present
evidence to establish that such activities, related to
managing an off-site business, are actually and custom-
arily performed at other homes in Glastonbury.’’ (Cita-
tion omitted; emphasis in original.) We disagree that
the regulations contain such a requirement.
Section 2.2 of the regulations defines an accessory
use, in relevant part, as ‘‘[a] use of . . . a portion of a
structure . . . customarily incidental and subordinate
to the actual principal use of the . . . structure . . . .’’
Section 2.22 of the regulations defines a home occupa-
tion, in relevant part, as ‘‘[a] use, not otherwise permit-
ted in the zone, which is customarily . . . conducted
for compensation as an accessory use on a residential
lot . . . .’’ Section 2.22 then specifically directs the
reader to § 7.0 of the regulations. Section 4.5.2 of the
regulations sets forth the permitted accessory uses in
the town’s A residential zone. Customary home occupa-
tion is listed as an accessory use, subject to the provi-
sions set forth in § 7.0 of the regulations.
Section 7.1 (b) (1) of the regulations specifically
allows ‘‘[s]pecial accessory uses and structures,’’ specif-
ically including a ‘‘customary home occupation . . . .’’
The specific standards for an acceptable customary
home occupation then are set forth in § 7.1 (b) (2) (a),
and the parking requirements are set forth in § 9.0 of
the regulations.
There is no definition of the word ‘‘customary’’ set
forth in the regulations that might indicate that an appli-
cant must comply with something more than the very
specific requirements set forth in § 7.1 (b) (2) (a) of
the regulations. Rather, the regulations are quite spe-
cific and detailed on what requirements an applicant
must meet for his or her customary home occupation
to be compliant. Although we readily agree with the
court and the board that the regulations require that
the accessory use be ‘‘customarily incidental and subor-
dinate to the actual principal use’’; Glastonbury Building
Zone Regs., § 2.2; we conclude that, in this case, the
factors that are relevant to this determination are set
forth with specificity in § 7.1 (b) (2) (a) of the regu-
lations.
To support its argument that the plaintiff must estab-
lish that her specific business, namely, the management
of an off-site transportation company, must be ‘‘custom-
ary’’ in her zone, the board relies in large part on Law-
rence v. Zoning Board of Appeals, 158 Conn. 509, 264
A.2d 552 (1969). In Lawrence, the plaintiff sought to
keep goats and chickens at his residence, which was
located in the residence and agriculture district in North
Branford. Id., 510–11. The keeping of goats and chick-
ens, however, was not a principal or accessory use
under the regulations. Id., 511. The plaintiff, neverthe-
less, argued that it was an accessory use. Id. The North
Branford zoning ordinance defined an accessory use as
‘‘[o]ne which is subordinate and customarily incidental
to the main building and use of the same lot.’’ (Internal
quotation marks omitted.) Id., 510 n.1. Our Supreme
Court explained that the crucial phrase in the regula-
tions at issue was the phrase ‘‘customarily incidental,’’
which defined the meaning of an accessory use. (Inter-
nal quotation marks omitted.) Id., 511. The court deter-
mined that an accessory use must be incidental to the
primary use; id., 511–12; and that it must be ‘‘usual to
maintain the use in question in connection with the
primary use of the land.’’ Id., 512. The court concluded
that to determine what is ‘‘customarily incidental,’’ cer-
tain factors must be examined, such as the size of the
lot, the nature of the primary use, the use made of
the adjacent lots by the neighbors, and the economic
structure of the area. (Internal quotation marks omit-
ted.) Id., 511, 513.
We are not persuaded that Lawrence is helpful to
our analysis. The court in Lawrence noted that the
analysis it undertook is required ‘‘[i]n situations where
there is no . . . specific provision in the ordinance
. . . .’’ (Internal quotation marks omitted.) Id., 513. The
ordinance at issue in Lawrence only defined accessory
uses generally, without identifying specific criteria to
consider when determining whether a use complies
with the ordinance. See id., 510 n.1. By contrast, in the
present case, the town has set forth very specific factors
to be employed in its determination of whether an
accessory use, in the form of a customary home occupa-
tion, is permitted in a residential zone. Unlike in Law-
rence, there is no need, in the present case, to employ
our own factors or anything beyond that which is set
forth in the regulations; the regulations, themselves,
employ the factors that the town concluded were neces-
sary to its determination. Accordingly, we conclude that
a home occupation that satisfies the specific standards
set forth in § 7.1 (b) (2) (a) of the regulations is a
customary home occupation, and there is no separate
and distinct test that an applicant must meet in order
to satisfy the word ‘‘customary.’’
II
Having concluded that if the plaintiff met the eleven
specific requirements of § 7.1 (b) (2) (a) of the regula-
tions, she was entitled to have her application granted,
we turn to whether there was substantial evidence in
the record that her application failed to comply with
any of those requirements. The trial court concluded
that because the plaintiff admittedly was not operating
the entirety of her transportation business from her
home, it was reasonable for the board to conclude that
she was not in compliance with § 7.1 (b) (2) (a) (1).
Section 7.1 (b) (2) (a) (1) of the regulations provides: ‘‘A
customary home occupation shall be carried on entirely
within the dwelling unit or within a completely enclosed
permitted accessory building on the same lot as the
dwelling unit.’’ Carey and the board concluded that this
provision means that the home occupation cannot be
part of a larger enterprise that is conducted off-site.
The court agreed with this interpretation.
The plaintiff claims that the court improperly upheld
the board’s conclusion that 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 occupa-
tion relates and whether any part of that business is
conducted off-site. The plaintiff argues that the plain
language of § 7.1 (b) (2) (a) (1) of the regulations should
be construed ‘‘as simply protecting the residential char-
acter [of] the neighborhood by requiring that all home
occupation related activities on the property be con-
fined to within a building and not conducted outside
in the yard.’’ Consequently, the plaintiff argues that she
could be in violation of that requirement only if she
was conducting her home occupation partly in her yard
or in some other area on her property. We agree with
the plaintiff.
As stated previously in this opinion: ‘‘[T]he interpreta-
tion of provisions [of a municipal zoning regulation] is
. . . a question of law for the court. . . . The court is
not bound by the legal interpretation of the [regulation]
by the [board].’’ (Internal quotation marks omitted.)
Lowney v. Zoning Board of Appeals, supra, 144 Conn.
App. 229. ‘‘Since zoning regulations are in derogation
of common law property rights . . . the regulation can-
not be construed beyond the fair import of its language
to include or exclude by implication that which is not
clearly within its express terms. . . . The words
employed by the local legislative body are to be interpre-
ted in accordance with their natural and usual meaning
. . . and any interpretation that would torture the ordi-
nary meaning of the words to create ambiguity will be
rejected. . . . Common sense must be used in constru-
ing the regulation, and we assume that a rational and
reasonable result was intended by the local legislative
body.’’ (Citations omitted.) Spero v. Zoning Board of
Appeals, 217 Conn. 435, 441, 586 A.2d 590 (1991).
In this case, § 7.1 (b) (2) (a) (1) of the regulations
specifically provides that ‘‘[a] customary home occupa-
tion shall be carried on entirely within the dwelling unit
or within a completely enclosed permitted accessory
building on the same lot as the dwelling unit.’’ The
wording of this regulation is clear. The occupation being
conducted at the residence must take place either inside
of the residence or in an enclosed approved accessory
building on the premises. The occupation, therefore, is
not allowed to spill over into the yard, the street, or an
unapproved structure or vehicle in the yard.
Furthermore, § 7.1 (b) (2) (a) (1) of the regulations
cannot be read in isolation but must be read in context
with rest of § 7.1 (b) (2) (a). All of the requirements
of that section make clear that the section regulates
conduct on the property and how and where it is con-
ducted. Subdivision (1) clearly regulates where on the
property the home occupation may take place, just as
subdivision (2) regulates who may engage in the home
occupation on the property. Had the town intended the
interpretation suggested by the board and adopted by
the court, subdivision (1) would provide that all busi-
ness activity associated with a home occupation shall
be carried on entirely on the property, as opposed to
requiring only that the home occupation itself take place
entirely within the dwelling unit or an enclosed per-
mitted accessory building on the property. Carey’s and
the board’s interpretation of subdivision (1) simply is
not reasonable given the express language of the subdi-
vision, particularly when read in the context of the
entire section. We conclude that there is nothing in the
plain language of the regulation that prohibits a home
occupation that is part of a larger enterprise located
off-site.
Moreover, the board’s interpretation would lead to
arbitrary outcomes. For example, the board’s interpre-
tation, as more fully explained by its attorney during
oral argument before this court, would mean that a solo
practitioner law firm operated from a residence would
be a permitted home occupation, but a lawyer who
works from home by telecommuting to a firm in Hart-
ford would not be a permitted home occupation.
Presumably, this would be true even if the attorney
who operated an entire practice from her home regu-
larly left to go to court or visit clients, even though that
would mean her occupation was not conducted entirely
on her property. Furthermore, the operation of a law
office from one’s home, which could include signage
and clients coming and going, is more likely to impact
the residential character of the neighborhood than
would a single attorney anonymously working in her
home by telecommuting to her law firm. Similarly, a
computer web designer, if found ‘‘customary’’; but see
part I of this opinion; would be allowed under § 7.1 (b)
(2) (a) (1) of the regulations, but only if he or she was
not telecommuting as part of a larger web design firm,
despite the fact that the impact on the residential char-
acter of the neighborhood likely would be exactly the
same under both scenarios. We disagree that the town
intended such a nonsensical interpretation of § 7.1 (b)
(2) (a) (1) of the regulations. In fact, allowing customary
home occupation to be defined under such a test runs
contrary to the detailed specific standards set forth in
§ 7.1 (b) (2) (a), by which the town determined that
home occupations are to be judged.
It is undisputed that the plaintiff’s application con-
templated that her entire home occupation would take
place within her dwelling and not outside on her prop-
erty. Consequently, the board had no evidence on which
to deny her application for failing to comply with § 7.1
(b) (2) (a) (1) of the regulations. For the same reason,
the court erred in concluding that the board acted rea-
sonably in denying the plaintiff’s application simply
because her home occupation is part of a larger busi-
ness that takes place off-site.7
The judgment is reversed and the case is remanded
to the Superior Court with direction to render judgment
sustaining the plaintiff’s appeal and directing the board
to approve her application for a customary home occu-
pation under reasonable terms and conditions that are
in accordance with its regulations.
In this opinion the other judges concurred.
1
Section 7.1 of regulations neither sets forth a specific requirement that
a person seek approval or seek a permit for an customary home occupation,
nor does it contain any direction for obtaining such approval or permit. It
also appears that the town has no formal application for someone to fill
out. The final subdivision of § 7.1 of the regulations, specifically § 7.1 (b)
(2) (a) (12), however, sets forth the following: ‘‘The Building Official may,
at his discretion, for good cause such as a noncustomary use, potential
excessive noise, storage of materials or parking, [refer] any question concern-
ing a customary home occupation to the Town Plan and Zoning Commission
for its review and recommendations. The Town Plan and Zoning Commission
shall have thirty (30) days from its receipt of the application from the
Building Official within which to forward its report of findings and recom-
mendations to the Building Official. Said report of the Town Plan and Zoning
Commission shall be advisory only, and the failure of the Town Plan and
Zoning Commission to submit its report within the prescribed thirty (30)
day period shall not prevent the Building Official from reaching a decision
on the application for the customary home occupation after the prescribed
thirty (30) day time period has expired.’’ (Emphasis added.) There is no
indication in the record that Carey, the building official, referred this matter
to the Town Plan and Zoning Commission.
Whether the regulations legally required the plaintiff to submit an applica-
tion for her home office need not be determined in this appeal because the
parties agreed that the plaintiff would submit such an application.
2
The plaintiff’s attorney sent a letter to the board on January 29, 2016,
withdrawing the plaintiff’s appeal to the board. The board, unaware of this
letter, on February 1, 2016, voted to deny the plaintiff’s appeal of the cease
and desist order. The transcript of the April 4, 2016 hearing reveals that
this letter was not seen by the board’s chairperson prior to April 4, 2016.
3
The frustration of some of the members also may have been due, at
least in part, to the fact that they did not understand that the plaintiff had
withdrawn her appeal from the cease and desist order and was proceeding
on a completely new application.
4
Although Carey was not asked about the basis for the conclusion in his
denial letter that the plaintiff’s business violated § 7.1 (b) (2) (a) (8) of the
regulations, which requires that a customary home occupation ‘‘shall not
create any objectionable noise, odor, vibrations or unsightly conditions,’’
his letter rejecting the plaintiff’s application stated that his conclusion was
based on ‘‘complaints and testimony of past practices.’’
5
There had been evidence submitted to the board that GPS tracking
devices have been installed on all of the business vans.
6
Although the propriety of nonseated and nonvoting alternate members
participating in the deliberations of the board is not raised as an issue in
the present case, we note that such participation, after the close of the
public hearing, is improper. See Komody v. Zoning Board of Appeals, 127
Conn. App. 669, 686, 16 A.3d 741 (2011) (alternate members of board, who
are nonseated and nonvoting for purposes of matter under board’s consider-
ation, may participate fully in public hearing; those same alternate members,
however, may not participate in board’s discussion after close of public
hearing).
7
The board also argues in a footnote in its appellate brief that ‘‘the record
provides substantial evidence from which the [board] and this court may
conclude that [the plaintiff] did not satisfy [subdivisions] [3 and 4] of § 7.1
(b) (2) (a) . . . .’’ Subdivision (3) provides that ‘‘[a] customary home occupa-
tion shall be clearly incidental and secondary to the use of such dwelling
unit and lot for residential purposes.’’ Subdivision (4) provides that ‘‘[a]
customary home occupation shall not change the residential character of
such dwelling unit and lot.’’ We are not persuaded by this argument.
As to subdivision (3), neither Carey nor the board ever claimed that the
plaintiff was in violation of that section. Nor did the trial court make any
reference to subdivision (3) when it affirmed the board. Furthermore, the
board does not identify any evidence in the record to support a conclusion
that the plaintiff’s operation of a home office was anything but incidental
and secondary to the plaintiff using her home as the primary residence of
her and her family. With respect to subdivision (4), Carey made clear that
the basis for his finding that the plaintiff’s application violated that subdivi-
sion was the plaintiff’s past practices that had been the subject of the earlier
cease and desist order. We agree with the court that past activities of the
plaintiff do not provide substantial evidence to deny the plaintiff’s applica-
tion moving forward. With respect to the application itself, there was no
evidence before the board that operating a home office entirely within the
plaintiff’s dwelling would change the residential character of her dwelling
or lot.