Marlene R. Tendler v. Town of Bethel Zoning Board of Appeals (2011)

MEMORANDUM OF DECISION

The Plaintiff, Marlene R. Tendler, appeals pursuant to General Statutes § 8-8 from the decision of the defendant, the zoning board of appeals of the town of Bethel (board), which rejected the plaintiff's appeal of an enforcement action, upholding the cease and desist order issued by the zoning enforcement officer of the town of Bethel prohibiting the plaintiff from teaching and conducting yoga classes in a portion of her residence.   As owner and unsuccessful applicant, the plaintiff is aggrieved by the board's decision and has standing to bring this appeal.  Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 703-04, 780 A.2d 1 (2001).

The following facts are found based on an examination of the record in the instant matter.   The plaintiff's property is located at 105 Walnut Hill Road in Bethel.   The property is located in an R-40 residential zone which permits, pursuant to the regulations, single-family dwellings.   The property is located within a cluster development known as Rockwell Ridge Estates.   The building contains 2875 square feet of living area, and the lot consists of 0.558 acres.  (ROR Ex. 2, p. 5-29.)   The lot meets the definition of a rear lot as set forth in the Bethel zoning regulations (regulations) § 118-2, namely “a lot connected to a public and/or private roadway by a continuous, contiguous strip of land a minimum of 20 feet in width, but without the required minimum frontage on such public and/or private roadway.”  (ROR appendix A, p. 118:10.)

The investigation of the plaintiff's activities, teaching yoga classes at her home, was instigated by her neighbors, Douglas Fargiano and Michelle Fargiano, who filed a written complaint dated April 20, 2009, alleging that “Ms. Tendler is using her home for commercial purposes and is conducting yoga classes five nights per week.   There are 7-10 cars in her driveway each day and they occasionally park on an adjoining street as well.”  (ROR Ex. 16, p. 84.)   Attached to the Fargianos' complaint was a Bethel Continuing Education brochure advertising classes available to the general public.   An advertisement for yoga and meditation classes offered by the plaintiff appears in the brochure.   The classes offered were to be held weekly over the course of ten weeks between the hours of 5:30 p.m. and 8:00 p.m. at the “instructor's home studio in Bethel.”   (ROR Ex. 12, p. 52.)   The Fargianos reside at 103 Walnut Hill Road. Their property is a front lot, having frontage directly on Walnut Hill Road, and abuts the plaintiff's property along the length of the plaintiff's driveway which runs to the plaintiff's property located to the rear of the Fargianos' property.

As a result of the complaint, the assistant zoning enforcement officer, Beth Cavagna, conducted exterior inspections of the plaintiff's property on the nights that yoga classes were to be held.   She observed the following:  on April 22, 2009, six cars parked in and around the plaintiff's garage and driveway;  on April 23, seven cars;  on April 29, six cars;  and on April 24, May 1 and May 8, no cars.  (ROR Ex. 16, p. 84.)   Cavagna never inspected the interior of the plaintiff's residence.   Upon further investigation by the zoning enforcement officer, Steve Palmer, public records revealed no applications or permits had been issued with the exception of a permit to finish 982 square feet of basement space in April 2005, and a certificate of occupancy for the finished basement on March 21, 2006.   Palmer conducted no further investigation or inspections, either interior or exterior, prior to the issuance of the cease and desist order.  (ROR Ex. 12, p. 51-54.)   On May 18, 2009, a cease and desist order was issued and duly served on May 19, 2009.   The alleged violation was noted as a “business being conducted in a residential zone” and the applicable sections of regulations cited included “118-24-A Permitted Use's [sic], 118-24-E Accessory Use's [sic], 118-2 Home Occupation.”  (ROR 1, pp. 1-3.)   The plaintiff filed the operative appeal to the board from the order of the zoning enforcement officer on June 12, 2009, asserting in her written application as a reason that the appeal should be granted that “yoga teacher is a permitted use and/or permitted home occupation under current regulations.”  (ROR Ex. 2, p. 4.)

Section 118-24.A of the regulations provides the following relevant provisions regarding whether business activity can be conducted as of right in a residence R-40 zone.

Permitted uses.   No land shall be used or occupied and no structure shall be designed, erected, altered, used or occupied except for only one of the following permitted uses;  provided, however, that a permitted use may be accompanied by lawful accessory uses:

* * * *

(2) Home business, home office or professional office:  the office of an accountant, architect, artist, dentist, designer, engineer, lawyer, musician, physician, surgeon, teacher, real estate and insurance agent or other person qualified through professional training to perform services of a professional nature located in the same dwelling owned and occupied by such person as his residence and employing not more than one person not residing on the premises.

(3) A customary incidental home occupation, such as dressmaking, millinery, preparation of food products, watch repair, television and radio repair, beauty parlor or similar service occupation carried on entirely within a dwelling in accord with the definition of “home occupation in residence districts” in § 118-2.

(ROR appendix A, p. 118:22.)   As to customary incidental home occupations, § 118-2 of the regulations imposes within the definition of “home occupation in residence district” nine additional restrictions of which the relevant ones for purposes of the instant case are as follows.

(1) Is clearly secondary to the use of the dwelling for dwelling purposes.

(2) Does not change the residential character of the dwelling in any visible manner.

(3) Does not create objectionable noise, odor, vibrations, waste or unsightly conditions noticeable off the premises.

* * * *

(9) The total floor area occupied by such home occupation does not exceed 25% of the dwelling floor area above the basement.

(ROR appendix A, p. 118:8.)   As to home business, home office or professional office, § 118-2 of the regulations imposes only the following additional conditions.

An office conducted as an accessory use by a recognized professional person in a dwelling occupied as his residence, provided that not more than one person not resident in the dwelling is employed, and provided further that there are no hospital facilities on the premises.   The total floor area occupied by such office must not exceed 25% of the floor area above the basement.

(ROR appendix A, p. 118:11.)

In a written staff report prepared for the board in anticipation of the public hearing on the appeal, zoning enforcement officer Palmer asserted that the plaintiff's activities are neither a permitted use under § 118-24.A(2) as a home business because the plaintiff is really not a teacher “in regard to how [the] regulations are constructed” because the activity in which she engages “is akin to exercise and personal fitness,” nor under § 118-24.A(3) as a home occupation because the use of a portion of the home for a yoga studio is not secondary to the use of the premises as a dwelling, the use changes the residential character of the dwelling in a visible manner, the use creates objectionable noise, odor, vibrations, waste or unsightly conditions and the total floor area occupied by such home occupation exceeds 25 percent of the dwelling floor area above the basement.  (ROR Ex. 12, pp. 51-54.)   Palmer calculated that the ratio of the basement area of 982 square feet to the living area above the basement of 2875 square feet indicated that the area devoted to business use equaled 35 percent of the dwelling floor area.  (ROR Ex. 12, p. 54.)

The public hearing on the appeal was held on the evening of September 15, 2009.   The following facts are found based on the presentations made at that hearing.   The plaintiff, Marlene Tendler, has been teaching yoga in Fairfield County since 2000.   She holds an undergraduate degree of Bachelor of Arts in art and a teaching certificate in art education.   She received her yoga teaching certificate in 2000.   She attends weekly training at the Iyengar Institute in New York and has studied yoga in India.   She holds national accreditation as an Experienced Yoga Teacher.   Her teaching includes the field of restorative yoga, and, in that regard, she has taught clients the principles of applying yoga in the treatment of migraine headaches, fibromyalgia, chronic fatigue syndrome, multiple sclerosis, Parkinson's disease and autoimmune disease.   She has taught yoga at Associated Neurologists of Danbury and Western Connecticut State University, among other institutions.  (ROR Ex. 24, p. 120.)   The plaintiff has been teaching yoga from her home since approximately 2006.   She has no employees.   She teaches private clients in one-on-one settings as well as small numbers of individuals in group settings.   All classes are conducted in her finished basement.  (ROR appendix B, pp. 17-19.)   Private clients are seen during daytime hours and group classes are held Monday through Thursday evening and ending by 8:00 p.m. (ROR appendix B, p. 33.)   For evening group classes, the plaintiff's property can accommodate six cars (two parked in front of the garage and an additional four parked in two separate turnarounds) before any are parked in the driveway.   All parking is at least 250 feet from Walnut Hill Road. There are no signs or other outward indicia that the plaintiff uses her home for anything other than her residence.  (ROR appendix B, p. 33.)

Although the entire basement covers 982 square feet, not all of that area is finished and not all of the finished area is devoted to use as a yoga studio.   Included in the gross square footage are a furnace/utility room and a tool room.   Included in the finished portion of the basement is a television/family area.   The plaintiff was not able to offer a calculation as to the square footage of the area devoted to the yoga studio.  (ROR appendix B, p. 17.)   In response to this new information, Palmer retracted his assertion that the yoga studio use exceeded 25 percent of the dwelling floor area above the basement, stating, “I'll say that I wasn't out there to verify the actual space but if it's one room it's going to be very difficult to determine or differentiate between studio space, and space that might be allocated for personal use.   I don't know how we could verify that with undivided space but I'll take you at your word it meets the 25% criteria ․” (ROR appendix B, p. 36.)   Palmer also took the opportunity at the close of the plaintiff's presentation to concede that the plaintiff was a teacher, “I never intended to minimize Ms. Tendler's certifications or her expertise in the subject matter that she performs her occupation in ․ With that being said I would concede that she probably is a teacher.”  (ROR appendix B, p. 35.)

At the close of the public hearing and after a brief discussion, the board, by a vote of four in favor and one opposed, upheld the cease and desist order.   No reasons were stated on the record at that time other than the comment of a board member that the 25 percent floor area coverage limitation was “not a key point.”  (ROR appendix B, pp. 55-56.)   In the subsequent written notice of decision dated September 17, 2009, the board stated that the cease and desist order was upheld on the basis of “operation of a commercial business in a residential zone,” and further “the applicable zoning regulations cited are sections 118-24A Permitted Uses, 118-24E Accessory Uses and 118-2 Home Occupation definition.”  (ROR Ex. 33, p. 154.)   Notice of the board's decision was duly published on September 22, 2009, in the News Times, a newspaper with general circulation in Bethel.  (ROR Ex. 34, pp. 156-57.)   The plaintiff timely commenced this appeal on September 25, 2009, claiming that the board acted illegally, arbitrarily and in abuse of its discretion in several respects including the following:  (a) the plaintiff's use of a portion of her home for a yoga studio is a home business and a permitted use under § 118-24.A(2) of the regulations;  (b) the plaintiff's use of a portion of her home for a yoga studio is a customary home occupation and a permitted use under § 118-24.A(3) of the regulations;  (c) the use is an accessory use to the primary use of the property as a residence;  (d) the board improperly interpreted the regulations;  and (e) the board's decision is not supported by substantial evidence in the record.

DISCUSSION

An appeal from a decision by a zoning board of appeals is statutory in nature and the standard of review by the Superior Court is well established.  “The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal.”  R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).  “It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own.”  (Internal quotation marks omitted.)  Id. “Moreover, the plaintiffs bear the burden of establishing that the board acted improperly.”  Wood v. Zoning Board of Appeals, 258 Conn. 691, 698, 784 A.2d 354 (2001).  “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 [a zoning 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 a trial court finds that there is substantial 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 [board] ․ The [board's] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.”  (Citations omitted;  internal quotation marks omitted.)   Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004);  Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 547-48, 684 A.2d 735 (1996).  “[A zoning] board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal.”  (Internal quotation marks omitted.)  Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).  “Where a zoning board of appeals does not formally state 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).

“[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.”  Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82, 626 A.2d 744 (1993).  “[T]he proper focus of a reviewing court is on the decision of the zoning agency and, with regard to its factual determinations, on the evidence before it that supports, rather than contradicts, its decision.   The conclusion that this scope of review applies upon judicial review is not undermined by the fact that ․ the zoning agency was a zoning board of appeals reviewing the decision of a zoning enforcement officer in an appeal from that decision pursuant to [the General Statutes] ․ [I]t is clear from both the entire statutory scheme and our zoning case law that the zoning board hears and decides such an appeal de novo, and that the action of the zoning enforcement officer that is the subject of the appeal is entitled to no special deference by the court.”  (Internal quotation marks omitted.)  Caserta v. Zoning Board of Appeals, supra, 87-89.

I

It is the plaintiff's position that her use of a portion of her residence as a yoga studio is a permitted use as a home business, home office or professional office as a teacher pursuant to § 118-24.A(2) of the regulations.   In the alternative, she argues that her use of the premises may also qualify as a customary incidental home occupation pursuant to § 118-24.A(3), or as an accessory use pursuant to § 118-24.E, which provides that “accessory uses customarily incidental to a permitted use are permitted on the same premises.”  (ROR exhibit A.) The defendant board counters that the determinations of the board are questions of fact which should not be disturbed by this court because substantial evidence exists in the record to support those determinations.   As to § 118-24.A(2) of the regulations, the defendant argues that although the plaintiff may be a teacher, her use of the premises is not “office” use.   As to § 118-24.A(3), the defendant argues that the plaintiff's use of her home for group yoga classes is not “customary” as a home occupation and moreover, it exceeds that which may be characterized as “incidental” or “clearly secondary.”   In addition the defendant argues that § 118-24.E is inapplicable to the instant case.   The defendant, given Palmer's admission at the public hearing and the comments of a board member during deliberations, concedes that the decision of the board was not based on a violation of the 25 percent floor area coverage limitation applicable to both home offices and home occupations by virtue of their respective definitions in § 118-2 and is not an issue in this appeal.

In its decision, the board stated as the reason for the denial that the plaintiff was operating a “commercial business in a residential zone” and cited all three of the above referenced regulation provisions, § 118-24.A(2), § 118-24.A(3) and § 118-24.E. Where the board states reasons for its decision the court does not search the record for additional reasons to uphold the board's decision.  Gibbons v. Historic District Commission, 285 Conn. 755, 769, 941 A.2d 917 (2008).   The relevant inquiry for this court then is whether plaintiff's use of a portion of her home for yoga classes is permitted under any one of the three referenced sections of the regulations.

II

Section 118-24.A of the regulations clearly presents a dichotomy of business uses which are permitted as of right.   Subsection (2) describes “home business, home office and professional office,” giving several examples including “teacher.”   The list is not exhaustive for it includes “other person [s] qualified through professional training to perform services of a professional nature.”   On the other hand, subsection (3) appears to be directed toward craftsmen, producers of goods and other vocations.   It too is not exhaustive, using the preface “such as” before listing examples of permitted occupations.  (ROR appendix A, p. 118:22.)   Given this professional/vocational dichotomy, the additional nine enumerated restrictions placed on § 118-24.A (3) vocational uses under the definition of “home occupation in residence districts” in § 118-2, follow logically.   They are intended to curb the detrimental effects which such uses might have on the surrounding neighborhood.  (ROR appendix A, p. 118:8.)   In contrast, the restrictions placed on professional uses are more relaxed, simply restricting the number of employees and prohibiting hospital facilities on the premises.  (ROR appendix A, p. 118:11.)

As between the two, it is clear, and the court so finds, that the plaintiff falls within the regulatory scheme of § 118-24.A(2) as a professional.   The plaintiff clearly provides instruction in the discipline of yoga.   Her education, training and certifications distinguish her as a teacher.   In addition, her work in the field of restorative yoga, working with individuals suffering various maladies and physical impairments, has a therapeutic aspect and in that regard she may be considered to be a “person qualified through professional training to perform services of a professional nature,” akin to a physical therapist but without the “hands on” approach.   In either event, she is to be considered a professional and she is not governed by, and her use of the premises is not subject to, the additional nine restrictions imposed upon vocational uses under § 118-24.A(3) of the regulations.   Her use of the premises is subject to the restrictions imposed by the definition of “professional office in a residential zone” under regulation § 118-2, but there is no claim that she fails to meet these.   The court does not address § 118-24.E of the regulations as it finds the provisions of such regulation are not applicable to the instant case.

III

The sole remaining issue is whether the record contains substantial evidence in support of the board's implicit conclusion that the plaintiff's use of that portion of space within her home where she conducts yoga classes is not an “office” as that term is used in § 118-24A(2) of the regulations.   The defendant contends that such a use is not an office.   The crux of the defendant's argument appears to be that only those activities that typically would occur within the physical confines of what is commonly regarded as a traditional business office, presumably complete with desks, chairs, office equipment and the like, are permitted.   Specifically, the defendant argues that the reference in § 118-24.A(2) to “office” does not encompass classrooms or yoga studios.   The court finds no support in the regulations for this interpretation.

This entire issue turns upon the definition and application of the term “office” as it is used in the regulations.   This court recognizes that “[a] local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it.”  New London v. Zoning Board of Appeals, 29 Conn.App. 402, 405, 615 A.2d 1054, cert. granted, 224 Conn. 921, 618 A.2d 528 (1992) (appeal withdrawn March 18, 1993).   “Although the position of the municipal land use agency is entitled to some deference ․ the interpretation of provisions in the ordinance is nevertheless a question of law for the court ․ The court is not bound by the legal interpretation of the ordinance by the [board].”  (Citations omitted;  internal quotation marks omitted.)  Northeast Parking, Inc. v. Planning & Zoning Commission, 47 Conn.App. 284, 293, 703 A.2d 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998).   The regulations contain no definition for the term “office.”  “If a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.”  (Internal quotation marks omitted.)  Heim v. Zoning Board of Appeals, 289 Conn. 709, 717, 960 A.2d 1018 (2009).   Black's Law Dictionary (9th Ed.2009) defines “office” in relevant part as “[a] place where business is conducted or services are performed ․” The American Heritage Dictionary of the English Language (4th Ed.2000) defines “office” as, inter alia, “[a] place in which business, clerical, or professional activities are conducted.”   The court finds these conventional and common notions of “office” broad enough to encompass the plaintiff's home yoga studio whether it is being used for one-on-one instruction or for group classes.

The defendant seems to suggest that the plaintiff's use of her home studio is a legitimate permitted use for one-on-one instruction but not for group classes.  Section 118-24.A(2) of the regulations imposes no limitation on the number of clients who may avail themselves of the services of a home based professional.   Not only is there no support in the regulations for such a limitation, there is no logical reason to differentiate between teachers and any of the other examples of professionals enumerated in the regulation, including accountants, lawyers, musicians, real estate agents and so on.   It is no less common for busy real estate lawyers or real estate agents to have small groups of people congregate at their offices on a regular basis than it is for the plaintiff holding group classes.

The court finds that the record does not contain substantial evidence in support of the board's decision to uphold the cease and desist order denying the plaintiff's right to conduct yoga classes as a home business under the provisions of § 118-24.A(2) of the regulations.

CONCLUSION

For the foregoing reasons, the court finds that the plaintiff has sustained her burden of demonstrating that the board's denial of her appeal, upholding the cease and desist order of the zoning enforcement officer, was illegal, arbitrary or in abuse of the discretion vested in the board.   The appeal is therefore sustained.

Michael G. Maronich, Judge

Maronich, Michael G., J.