FINK vs. OXFORD ZONING BOARD OF APPEALS, MISC 16-000377

Introduction

Plaintiffs Robert and Bridggette Fink operate a commercial kennel and pet store out of their residentially-zoned property at 11 Larned Road in Oxford. No one lives there. Instead, at any given time, there are over 150 puppies and dogs on the premises and the house is used as an office and pet store for the sale of the puppies, open to the public every day. The Finks purchase nearly all of the puppies they sell from breeders in the Midwestern states, [Note 1] unload them from large delivery trucks that bring them to the property, put them in small cages stacked three high in the basement of the house for as long as it takes to sell them (sometimes as much as four months), advertise their availability on-line, and then resell them to customers who come to the property. They are on track to sell more than 1,000 puppies from this location, and perhaps as many as 1600, this year alone. The puppy delivery trucks, the trucks that bring food and supplies, the Finks' employees, and the potential customers for the puppies regularly come and go from the property. All of this is disruptive to the surrounding residential neighborhood. It is also unlawful under Oxford's zoning by-law, which prohibits commercial kennels and pet stores in the zoning district in which the Finks' property is located.

After neighbors complained to the town about the activities on the Finks' property, the zoning enforcement officer investigated and directed the Finks to cease and desist their kennel and pet store operations. The Finks appealed to the Zoning Board of Appeals, which upheld the cease and desist order. This case is the Finks' G.L. c. 40A, § 17 appeal of the Board's decision. The Finks claim that they have the right to use their property in the manner just described. The Board disagrees.

The case was tried before me, jury-waived. Based on the testimony and documents admitted at trial, my assessment of the credibility, weight, and appropriate inferences to be drawn from that evidence, and as more fully explained below, I find and rule that the plaintiffs' commercial kennel and pet store operation is unlawful (i.e., the importing, housing, and sale of puppies and dogs trucked in from elsewhere) but, because this aspect of their business is a protected agricultural use, they may breed, raise, and sell puppies from the dogs they permanently and individually own.

Facts

These are the facts as I find them after trial.

The 11 Larned Road Property

The plaintiffs' property at 11 Larned Road is an approximately eight-acre parcel of residentially-zoned land with a ranch-style house, an attached two-car garage, and a separate outbuilding. The house and garage were built by the immediately prior owners of the property, Ruth and Bernard Jensen, with the basement of the house substantially modified by the Finks soon after they bought it so that they could install the stacks of dog cages that are currently there and house the puppies that are trucked in. [Note 2] The outbuilding was constructed in the late 1950s by Uno and Dorothy Torsti, who owned the property prior to the Jensens. The Torstis also owned property across the street (not part of the now-Fink property) where the Torstis had their house, bred their own dogs, and boarded dogs for others while their owners were on vacation. Based on the testimony given by a former employee of the Torstis who worked there as a teenager (the Torstis themselves did not testify) and the other evidence in the case, I infer and so find that (1) the pet supplies and the small number of dogs the Torstis sold were sold from their property across the street and not from the now-Fink property, (2) the bulk of the Torstis' dog-related business consisted of their vacation boarding operation (i.e., boarding dogs for short periods of time while the owners of those dogs were on vacation), (3) those activities were conducted primarily from their property across the street and not from the now-Fink property, and (4) the outbuilding on the now-Fink property was used by the Torstis only for their own dogs and the occasional overflow from their vacation boarding business; nothing else on the now-Fink property was used by the Torstis for any dog-related purpose.

In 1974, Ms. Torsti sold 11 Larned Road (the now-Fink property) to Ruth and Bernard Jensen who, as previously noted, built and lived in the house that is now on that land. Ms. Torsti retained the property across the street where her house and the bulk of her dog operations had been located, and subsequently sold that property to others. The Jensens bred and raised seven or eight show dogs while they lived at 11 Larned Road. By 1987, they had retired and stopped breeding their dogs. Ms. Jensen sold the property to the Finks in December 1992 after her dogs had passed away. [Note 3] She had nevertheless maintained a kennel license and transferred it to the Finks. [Note 4]

The Finks moved to 11 Larned Road with their children in 1993 and opened their business, Laughlin Kennel Company, shortly thereafter. Initially, the Finks lived on the first floor of the house and used the remainder of the property for their business. They moved out in 2010 and, since then, the property has not been used as a residence. [Note 5] Instead, it has been used as a commercial kennel and pet store. [Note 6]

The Commercial Kennel and Pet Store

Since opening Laughlin Kennel Company, the Finks have sold over 30,457 puppies out of the property. They sold over 800 puppies in their first year, over 1,000 last year, and hope to sell even more than that this year. One year they sold nearly 1,600.

There are approximately 125 puppies and up to thirty adult dogs on the property at any given time. The adult dogs, owned permanently by the Finks, live in the outbuilding, which has approximately twenty-one dog runs and a dog grooming area. The puppies occupy nearly the entirety of the house's basement, which the Finks extensively remodeled to accommodate the puppy cages soon after they bought the property. [Note 7]

Truckloads of newly delivered puppies, between eight and eleven weeks old at the time of their arrival, are brought to the property approximately twice each week. The puppies are then isolated in a basement holding room for their first forty-eight hours on site. After that, they are kept in cages stacked three layers high, spread throughout multiple rooms in the basement. The basement also has a whelping area for birthing puppies born to the Finks' own dogs, a grooming area where veterinarian examinations take place, a sick room for dogs failing those examinations, and a storage area that is used to photograph puppies for advertisements on Laughlin Kennel Company's website. Potential customers for the puppies are not allowed access to the basement. Instead, the puppies are taken upstairs for showing.

Laughlin Kennel Company's offices are on the first floor of the house. The former living room and dining room have desks for employees and storage for files. Employees use the kitchen as a break area. One of the former bedrooms is Mr. Fink's office, and the other two are used for storage. Part of the garage serves as a storage area for dog food and supplies.

The breezeway between the house and garage is set up as a pet store. [Note 8] It has shelves with various pet supplies dog food, bowls, collars, leashes, dog beds, crates, grooming supplies, etc. on display for sale. It is also where customers see, and if the sale is successful, purchase puppies. The Finks advertise their inventory of puppies on their website, but all sales take place at the property. Customers sometimes, but are not required to, set up appointments. Some simply browse, and some stop by to leave deposits before returning another day. Most customers stay on site for about thirty minutes to an hour, and about half of them ultimately purchase a puppy. On busy days, the Finks sell up to ten puppies.

Laughlin Kennel Company is open to the public every day, Monday through Saturday from 9:00 a.m. to 7:00 p.m. or 8:00 p.m., and Sunday from 10:00 a.m. to 6:00 p.m. Mr. Fink works there almost every day and Mrs. Fink works there once or twice a week. They also have six to seven employees who work there each day from around 8:30 a.m. until the evening. Typically, no one is there at night and, except for cameras and motion detectors, the puppies and dogs are left unattended until the business re-opens the next day.

The Finks order nearly all of the puppies that they sell from other breeders, most from the Midwest. [Note 9] Initially, the Finks picked up the puppies at the airport. Since the late 1990s, however, they have had the puppies delivered directly to the property. [Note 10] Large trucks and vans deliver up to twenty-five puppies to the property twice a week and each delivery takes approximately one hour to process. Most of the puppies are sold within a month or two, but many take longer. The Finks steadily lower the prices of older puppies so that they sell before they reach six months old and need to be individually licensed as dogs. It was unclear what happens to the dogs that go past that sell-by date.

The Finks also regularly receive shipments of food and supplies for the puppies and dogs and for resale in their pet store. A tractor trailer truck delivers dog food to the property every other week. The delivery trucks are large and, in order to fit into the Finks' driveway, must drive past the house, turn around in the road, and back into the Finks' driveway.

These activities are disruptive to the surrounding residential neighborhood. With customers, delivery trucks, and employees regularly coming and going, traffic is relatively heavy on what is otherwise a relatively quiet street, and that traffic has been increasing. The large delivery trucks sometimes block traffic and the neighbors' driveways and, when the Finks' driveway is full, employees and customers park on the street and in the neighbors' yards. All of this is noisy. The puppies and dogs often bark loudly, especially at night when they are unattended and alone. When one starts, others often join in.

Over the years, the neighbors have complained about the activities and noise at the property. In 1994, a neighbor made a complaint challenging the validity of the transfer of Ms. Jensen's kennel license to the Finks. In response, the zoning enforcement officer at that time opined that the transfer of the kennel license was lawful. After another neighbor complained about the kennel in 1995, the same zoning enforcement officer inspected the property and opined that the kennel was a legal preexisting nonconforming use. As more fully discussed below, he was wrong.

The Cease and Desist Order and the Board's Decision

In January 2016, in response to further complaints regarding the Finks' property, a new zoning enforcement officer inspected the property [Note 11] and determined that it was being used as a commercial kennel and pet store and not as a primary residence. On March 9, 2016, the zoning enforcement officer directed the Finks "to cease and desist all 'kennel' operations" at the property. [Note 12] The Finks subsequently appealed to the Board, which upheld the cease-and-desist order in a written decision filed with the town clerk on June 27, 2016. [Note 13] The Board's decision states:

As reasons for its decision, the Board found that the applicants operated a 'commercial kennel' and 'pet store' on the property as described in the Building Official's order, that such use is unlawful under the existing Zoning By-Laws, and that the applicants failed to demonstrate that such use was a lawful preexisting nonconforming use.

This case is the plaintiffs' G.L. c. 40A, § 17 appeal from the Board's decision.

The Relevant Provisions of Oxford's Zoning By-law

Oxford first adopted zoning in 1956, and its 1968 zoning by-law was the first to regulate the use of property. [Note 14] Under the 1968 zoning by-law, commercial kennels and pet stores were each prohibited in the Suburban District in which the 11 Larned Road property was located. [Note 15] Oxford's subsequent 1974 zoning by-law and 1979 zoning by-law each also prohibited commercial kennel and pet store uses in the Suburban District. [Note 16]

Under the 1992 zoning by-law, the 11 Larned Road property was located in the Suburban District (R-2). Commercial kennel and pet stores uses continued to be prohibited in that district. [Note 17] See Zoning By-law (1992), Ch. IV, § 2.1 & Table I. Certain home occupations were permitted, but kennels were now an expressly prohibited home occupation. [Note 18] See Zoning By-law (1992), Ch. III, §§ 2.0 & 2.2.5.

Under the current zoning by-law, the 11 Larned Road property is located in the Suburban District (R-2). The zoning by-law prohibits commercial kennel and pet store uses in that district. [Note 19] See Zoning By-law (2014), Ch. IV, § 2.1 & Table I.

The zoning by-law permits certain home occupations as an accessory use of a dwelling in the Suburban District (R-2). [Note 20] See Zoning By-law (2014), Ch. III, § 2.0 & Ch. XVI, § 2.0. As just noted, certain home occupations, including kennels, are expressly prohibited. See Zoning By-law (2014), Ch. III, § 2.2.5. The zoning by-law defines "kennel" as "a lot with structures or pens in which three (3) or more dogs, cats or other household pets that are more than six (6) months old are boarded, bred, or sold." [Note 21] Zoning By-law (2014), Ch. XVI, § 2.0.

Under the zoning by-law, a lawful, pre-existing, non-conforming use may be changed to another non-conforming use, altered, or extended upon the grant of a special permit by the Board. [Note 22] See Zoning By-law (2014), Ch. III, §§ 1.2., 1.2.1 & 1.2.2. No special permits for the 11 Larned Road property have been granted.

Further relevant facts are set forth in the Analysis section below.

Analysis

The Finks contend that the Board improperly upheld the cease-and-desist order because, they argue, their business is a permitted agricultural use, their current use is grandfathered because there has been a kennel on the property since the 1950s, and the limitations period for zoning enforcement action regarding their use has expired. The Board disagrees, contending that the kennel and pet store is a prohibited commercial use that is neither grandfathered nor time-protected and is thus subject to zoning enforcement. I find and rule as follows.

The Standard of Review

In this G. L. c. 40A, § 17 appeal, as in all such proceedings, the reviewing court makes de novo factual findings based solely on the evidence admitted in court, and then, based on those facts, determines the legal validity of the municipal body's decision, with no evidentiary weight given to any findings by the Board. See Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 474-475 (2012); Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381-382 (2009).

The Board's decision "'cannot be disturbed unless it is based on a legally untenable ground' or is based on an 'unreasonable, whimsical, capricious or arbitrary' exercise of its judgment in applying land use regulation to the facts as found by the judge." Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 381-382 (quoting Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 487 (1999)). In determining whether the Board's decision was "based on 'a legally untenable ground,'" the court must determine whether it was decided "on a standard, criterion, or consideration not permitted by the applicable statutes or by-laws." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003). In determining whether the decision was "unreasonable, whimsical, capricious, or arbitrary," "the question for the court is whether, on the facts the judge has found, any rational board" could come to the same conclusion. See id. at 74.

The Commercial Kennel and Pet Store Is Unlawful

Under Oxford's zoning by-law, commercial kennel and pet store uses are prohibited in the Suburban District (R-2) in which the 11 Larned Road property is located. See Zoning By-law (2014), Ch. IV, § 2.1 & Table I. The Finks' commercial kennel and pet store therefore violates the zoning by-law and, unless otherwise protected, thus must cease. [Note 23]

The commercial kennel and pet store is not, as the Finks claim, an agricultural use that is allowed as of right in the Suburban District (R-2) and exempt from zoning regulation under G.L. c. 40A, § 3. [Note 24] "[T]he breeding, raising, and training of dogs owned by the [property owner] on the land is an agricultural pursuit under G.L. c. 40A, § 3." Town of Sturbridge v. McDowell, 35 Mass. App. Ct. 924 , 925 (1993). However, "the boarding, grooming, and training of dogs not owned or kept as breeding stock by the defendant are not agricultural uses, because these activities are not an integral part of the breeding or raising of dogs." Id. (emphasis added). Here, the Finks buy puppies and pet supplies from others, sell them to paying customers, and store them on the property before resale. None of this is agricultural use. [Note 25] See id. Instead, it is an entirely commercial operation that cannot lawfully take place on the property. [Note 26]

In addition, the commercial kennel and pet store is not a protected preexisting nonconforming use. "A prior nonconforming use is one that is lawfully carried on at the time a zoning ordinance or by-law is adopted that prohibits that use." Almeida v. Arruda, 89 Mass. App. Ct. 241 , 243 (2016). Under G.L. c. 40A, § 6, [Note 27] a preexisting nonconforming use is not subject to a subsequently enacted zoning by-law. See id. However, any "change or substantial extension of such use" has no such protection. [Note 28] G.L. c. 40A, § 6. See Almeida, 89 Mass. App. Ct. at 243. Whether a preexisting nonconforming use has been changed or substantially extended such that it is no longer protected under G.L. c. 40A, § 6 is governed by the so-called Powers test, which evaluates: "(1) Whether the use reflects the 'nature and purpose' of the use prevailing when the zoning by-law took effect;" "(2) Whether there is a difference in the quality or character, as well as the degree, of use;" and "(3) Whether the current use is 'different in kind in its effect on the neighborhood.'" Powers v. Building Inspector of Barnstable, 363 Mass. 648 , 653 (1973) (citing Town of Bridgewater v. Chuckran, 351 Mass. 20 , 23 (1966)). The Finks' commercial kennel and pet store fails to qualify for preexisting nonconforming protection under each of these factors.

When the town first enacted zoning regulating the use of land, the owners of 11 Larned Road, Mr. and Ms. Torsti, boarded and bred dogs, although primarily on their other property across the street. [Note 29] But their operation was small, and its focus was vacation dog boarding. The Finks' commercial kennel and pet store is different in kind, and vastly different in scale. It is year round. They do not board dogs, and they do little breeding. Instead, they buy puppies from off-site breeders and have dozens trucked to the property each week, selling as many as 1600 a year to hundreds of customers a year who come to the property and buy them there. They have far more puppies and dogs on the property at any given time (150) than the Torstis ever did, and for a fundamentally different purpose. They leave the puppies and dogs unattended every night, all night. Also, while the Torstis' operations on the now-Fink property were confined to the outbuilding, the Finks use both the outbuilding and the house for their business. [Note 30] They have business offices on the first floor and their inventory of puppies takes up nearly the entire basement. They also have a pet store with pet supplies on display for customers to purchase. Employees, large delivery trucks, and hundreds of retail customers regularly come and go to the property. All of this, unlike the Torstis' former operation, is continuous, noisy and disruptive to the neighbors. In short, the Finks' current use is substantially different in scope and in kind from the Torstis' and thus is not a protected preexisting, nonconforming use.

The commercial kennel and pet store also has no protection under G.L. c. 40A, § 7. [Note 31]

The Finks' claim that the statue's six-year limitation on enforcement actions for use violations authorized by a building permit applies to their commercial kennel and pet store because of the building permit they obtained in 1992 for their basement renovations. I disagree.

The limitations period under G.L. c. 40A, § 7 for use violations applies to "the use allowed by the permit." G.L. c. 40A, § 7. [Note 32] See Moreis v. Oak Bluffs Bd. of Appeals, 62 Mass. App. Ct. 53 , 58-60 (2004); Lord v. Zoning Bd. of Appeals of Somerset, 30 Mass. App. Ct. 226 , 228 (1991). The permit that the Finks received allowed only the partial finishing of their basement. Neither the permit nor the permit application refers to commercial kennel or pet store use. The permit application indicated that the area to be finished included a rec [recreation] room, space for storage, and space for whelping puppies, and the plan submitted with the application depicts only part of the basement to be used for puppies. This is consistent with the prior owners' vacation dog boarding and breeding activities on the property. Nothing suggests that the Finks would use the property as a large commercial kennel and pet store, buying, having delivered, and selling up to 1600 puppies a year, trucked in from far away and then put in cages stacked floor to ceiling, 125 at a time. [Note 33]

Conclusion

For the foregoing reasons, the Board's decision is AFFIRMED, except as follows. The Finks may, as a matter of zoning, breed and raise dogs that they permanently own at the property since that is a protected agricultural use. They may not sell any dogs that are not bred at the property and may not sell any pet supplies.

The parties are ORDERED to meet and confer to discuss a plan for shutting down the plaintiffs' commercial kennel and pet store operation and to submit a written joint status report to the court by no later than August 7, 2018. If the parties are unable to reach agreement on how to shut down the operation, they are to make separate submissions on their respective proposals and the court will decide on the appropriate relief. Judgment, incorporating that relief, will enter at that time.

SO ORDERED.

[Note 1] They also have a small number of dogs which they permanently own themselves and breed in a separate building on the property.

[Note 2] The puppies are between eight and eleven weeks old when they are trucked to the Fink property and put in the basement cages. They stay in the cages until they are sold, which may take as long as four months.

[Note 3] When the Finks first went to the 11 Larned Road property in December 1992, the basement of the then-Jensen house had about ten large dog cages with chairs and sitting areas inside them where the Jensens would sit while their dogs were giving birth. The outbuilding had fourteen large dog runs, water bowls, dog beds, and grooming supplies. I find that all of this was built and used by the Jensens solely for the breeding of their own dogs. The Finks acquired some of this equipment from Ms. Jensen when they purchased the property.

[Note 4] A kennel license is required to have more than three dogs on a property. Puppies become dogs, and are thus required to be individually licensed, when they turn six months old. Both the Jensens and the Torstis had kennel licenses when they owned the property.

[Note 5] Mr. and Mrs. Fink now live in Sutton. They occasionally spend the night at 11 Larned Road, their nephew briefly stayed there while he was temporarily working for them, and Mr. Fink sometimes naps there. Such use of the property has been episodic and does not constitute residential use.

[Note 6] The Finks have a state pet shop license, which is required to sell dogs bred by others. Regular inspections are required in order to maintain pet shop licensure and the Finks claim to be in good standing with all regulators. One of those regulators, the Department of Agricultural Resources, has occasionally contacted the town regarding the Finks' business operations. In 2006, the Department of Agricultural Resources requested that the town confirm that the Finks' pet store complied with the town's regulations. In response, the town's inspector of buildings approved a letter authored by the Finks that stated that the operation of the kennel was a grandfathered nonconforming use. As discussed more fully below, that statement was incorrect. In any event, it does not bind the town. See Cullen v. Building Inspector of N. Attleborough, 353 Mass. 671 , 674675 (1968) ("The right of the public to have the zoning by-law properly enforced cannot be forfeited by the action of its officers.").

[Note 7] The Finks obtained a building permit for their basement renovations in 1992 and completed the work in 1993. The building permit application states that the permit sought is for the "partial finish of basement rec room + space for storage & whelping puppies." The plan submitted with the application indicates that one side of the basement was intended "for whelping puppies, grooming dogs, storage of supplies, isolation of sick dogs, holding litters ready for sale" and that the other side and bathroom was "for people (rec room)." There was no indication on the application, and certainly nowhere on the approval, that the Finks intended to install 125 cages, stacked floor to near ceiling, in the basement space, or that anywhere near that number of puppies was contemplated, or that the puppies would be regularly trucked in from off-site and then sold to hundreds of customers coming to the site.

The Finks also obtained permits to perform electrical work at the property in 1993. Their applications for those permits indicate that the purpose of the building is a "house + kennel" and "dog kennel", and one indicates that the location of the proposed work includes a "dog room." There was no indication that the property would be used as a commercial kennel and pet shop in either the permit or its associated application, and certainly not on the scale at which the plaintiffs operate.

[Note 8] The Finks added the garage and breezeway on to the house after purchasing the property. They obtained a building permit for those additions in 1994 and completed the work in 1995. Before the Finks added the breezeway, customer transactions took place in the kitchen.

[Note 9] Mr. Fink testified, and I so find, that over ninety percent of the Finks' business involves the resale of puppies bred offsite. The Finks claim that they breed their adult dogs, but I do not believe that their breeding activities are as extensive as they claim. I find that very few, if any, of the puppies they sell are bred at the property.

[Note 10] As previously noted, the puppies are usually between eight and nine weeks old at the time they arrive at the Finks' property, with a few (toy breeds) eleven weeks old.

[Note 12] The March 9, 2016 cease-and-desist order further provides, in pertinent part:

Reviewing the Oxford Town Clerk's files it appears that a "kennel license" has been issued to the property owners, at the above indicated address dating back to the early 1970s. Within the previous zoning bylaws, "kennel" was never listed as an allowed use within its Use Tables.

Currently the main structure's first floor is used as offices and the entry/mudroom area has shelves with retail items such as dog food, leashes, pads and dog beds. The basement has been divided into several rooms for puppies/dogs through different stages; whelping rooms, new puppies, puppies on medicine, etc. The second structure is the actual kennel where the adult dogs are housed.

It appears that the original use of the property which was primarily "single family use" with a kennel license has expanded into the primary use being a "commercial kennel" and "pet store." The original kennel licenses were issued to the owners of the property who lived in the existing dwelling structure on the property.

Reviewing the documents and past history of the property, you, as the owners, no longer use the property as the primary use of a "single family home" (since approximately December 2010).

Under the Oxford Zoning Bylaws, Chapter IV-Residential Districts, Table I-Uses Allowed in Residential Districts, the use of a "kennel" is not permitted. At this time you are hereby ordered to CEASE AND DESIST all "kennel" operations.

[Note 13] The Board's decision describes the March 9, 2016 order as "requiring [Mr. and Ms. Fink] to cease and desist all kennel operations, consisting of a 'commercial kennel' and 'pet store', on property located at 11 Larned Road."

[Note 14] The 1956 zoning by-law regulated and restricted only "the size and width of lots." Supplement to By-laws, Zoning (1956), Art. I. There was no regulation of use until the 1968 by-law.

The following uses shall be permitted in Suburban Districts. Any uses not so permitted are excluded unless otherwise permitted by law or by the terms of this by-law.

The following uses shall be permitted in Residential Districts. Any uses not so permitted are excluded unless otherwise permitted by law or by the terms of this by-law.

**** In each single family dwelling one or more home profession or occupation may be carried on. . . .

Any profession or occupation commonly conducted within a dwelling, such as law, medicine, dressmaking, woodworking and the like, carried on by the inhabitants of the dwelling and not more than two non-resident employees, provided that such use is secondary to the use of the dwelling for residential purposes and does not change the primarily residential character thereof.

The following uses shall be permitted in suburban districts. Any uses not so permitted are excluded unless otherwise permitted by law or by the terms of this by-law.

j. Sewage treatment and disposal facilities operated by a sewer district or other governmental unit and serving, at least in part, residents of the Town of Oxford.

The following uses shall be permitted in Residential districts. Any uses not so permitted are excluded unless otherwise permitted by law or by the terms of this by-law.

Use of a portion of a single family dwelling or accessory building as a workroom of a resident of the premises engaged in a customary home profession or occupation, provided that:

(a) Such use is clearly secondary to the use of the premises for dwelling purposes;

(b) Not more than two persons other than residents of the premises are regularly employed on the premises in connection with such use;

(c) No trading in merchandise is regularly conducted except for products made on the premises and parts or other items customarily used in connection with and incidental to such products[;]

(d) No external change is made which alters the residential appearance of the buildings on the lot; and

(e) All operations including incidental storage are carried on within the dwelling or accessory building and there is no external evidence that the premises are being used for any purpose other than residential.

The above provisions are the same under the 1979 zoning by-law, except that § 4.1 also permitted farming in residential districts. See Zoning By-laws (1979), §§ 2.4, 4.1 & 5.1.

[Note 17] Under the 1992 zoning by-law, any use not expressly permitted in the Suburban District (R-2) under the by-law's table of uses allowed in residential districts was prohibited. See Zoning By-law (1992), Ch. IV, § 2.1 & Table I. Neither commercial kennels nor pet stores were listed in the table of uses and thus such uses were prohibited in the Suburban District (R-2). See Zoning By-law (1992), Ch. IV, § 2.1 & Table I.

Under the table of uses, the uses permitted as of right in the Suburban District (R-2) included: agriculture, horticulture, floriculture and viticulture; roadside stands (for sale of products primarily produced on the land under five (5) acres, on which the facility is located); golf courses; hiking, jogging or fitness trails; riding stables; one family dwellings detached; two family dwellings and duplexes; municipal structures or uses; churches; and cemeteries. See Zoning By-law (1992), Ch. IV, § 2.4 & Table I. The uses permitted in the Suburban District (R-2) by special permit included: outdoor tennis or swimming club; day camps; picnic and outing areas; boarding or lodging houses for not greater than four (4) paying guests; cluster residential developments; accessory apartments; museums; philanthropic, historical, or charitable organizations; earth removal operations; public utilities and facilities; and airfields. See Zoning By-law (1992), Ch. IV, § 2.4 & Table I. Campgrounds with tent sites and multiple family dwellings were permitted in the Suburban District (R-2) by special permit and site plan approval. See Zoning By-law (1992), Ch. IV, § 2.4 & Table I.

[Note 18] The 1992 zoning by-law defined "home occupation" as "that accessory use of a dwelling that shall constitute either entirely or partly the livelihood of a person living in the dwelling." Zoning By-law (1992), Ch. XVI, § 2.0. The 1992 zoning by-law further prohibited any home occupation that "changes the outside appearance and residential character of the existing structures or is visible from the street;" "may generate traffic, parking, sewerage, water use, or noise in excess of what is normal in the residential neighborhood;" "may create a hazard to person or property, results in electrical interference, or becomes a nuisance;" "results in display or advertising visible from outside the premises other than signs permitted in Chapter XII, or results in exterior storage of materials;" "employs more than two non-residents;" or "uses more than twenty-five (25) percent of the net floor area of the dwelling." Zoning By-law (1992), Ch. III, § 2.1.

The 1992 zoning by-law expressly prohibited the following home occupations: animal hospitals, dancing studios, nursery schools, private clubs, kennels, and motor vehicle repair or paint shops. See Zoning By-law (1992), Ch. III, § 2.2. Under the 1992 zoning by-law, "kennel" is defined as "a lot with structures or pens in which three (3) or more dogs, cats or other household pets that are more than six (6) months old are boarded, bred or sold." Zoning By-law (1992), Ch. XVI, § 2.0.

[Note 19] The zoning by-law prohibits any use that is not expressly permitted under the table of allowed uses. See Zoning By-law (2014), Ch. IV, § 2.1 & Table I. The table of allowed uses does not set forth commercial kennels or pet stores as a permitted use in the Suburban District (R-2) and thus those uses are each prohibited in that district. See Zoning By-law (2014), Ch. IV, § 2.1 & Table I.

In the Suburban District (R-2), the uses permitted as of right are: agriculture, horticulture, floriculture and viticulture; roadside stands (for sale of products primarily produced on land under five (5) acres, on which the facility is located); golf courses; hiking, jogging or fitness trails; riding stables; one family dwellings detached; two family dwellings and duplexes; cluster residential developments; municipal structures or uses; churches; and cemeteries. See Zoning By-law (2014), Ch. IV, § 2.4 & Table I. The uses permitted by special permit are: outdoor tennis or swimming club; day camps; picnic and outing areas; boarding or lodging houses for not greater than four (4) paying guests; accessory/in-law apartments; museums; philanthropic, historical or charitable organizations; earth removal operations; public utilities and facilities; and airfields. See Zoning By-law (2014), Ch. IV, § 2.4 & Table I. The uses permitted by special permit and site plan approval are: campgrounds with tent sites; multiple family dwellings; and assisted living residence. See Zoning By-law (2014), Ch. IV, § 2.4 & Table I.

The zoning by-law defines "roadside stand" as "a stand or other structure for the sale of produce or products principally produced on the premises on which the stand is situated." Zoning By-law (2014), Ch. XVI, § 2.0.

[Note 20] The zoning by-law defines "home occupation" as "that accessory use of a dwelling that shall constitute either entirely or partly the livelihood of a person living in the dwelling." Zoning By-law (2014), Ch. XVI, § 2.0. A home occupation is not permitted if it "changes the outside appearance and residential character of the existing structures or is visible from the street;" "may generate traffic, parking, sewerage, water use, or noise in excess of what is normal in the residential neighborhood;" "may create a hazard to person or property, results in electrical interference, or becomes a nuisance;" "results in display or advertising visible from outside the premises other than signs permitted in Chapter XII, or results in exterior storage of materials;" "employs more than two non-residents;" or "uses more than twenty-five (25) percent of the net floor area of the dwelling." Zoning By0law (2014), Ch. III, § 2.1. Animal hospitals; dancing studios; nursery schools; private clubs; kennels; and motor vehicle repair or paint shops are prohibited home occupations. See Zoning By-law (2014), Ch. III, § 2.2.

The Finks' commercial kennel and pet store is not an accessory use (no one lives there) and is thus not a "home occupation" under the zoning by-law. In any event, its character and scale would far exceed that protection.

[Note 21] Kennels are permitted as of right in the General Business District (GB) and by special permit in the Highway Interchange District (HI). See Zoning By-law (2014), Ch. V, § 2.4 & Table II.

The Finks contend that the zoning by-law's prohibition of "kennels" in the Suburban District (R-2) is unlawful under G.L. c. 40A, § 3 (protections for agricultural uses). As discussed more fully below, I disagree. An operation importing, warehousing, and selling up to 1600 puppies a year is not an "agricultural" use. It is a commercial enterprise.

[Note 22] The 1968, 1974, 1979, and 1992 zoning by-laws each included a similar provision. See Amended Zoning By-law (1968), § 11; Zoning By-laws (1974), § 11.1; Zoning By-laws (1979), § 11.1; Zoning By-law (1992), Ch. III, §§ 1.2.1 & 1.2.2.

[Note 23] The Finks contend that because the cease and desist order provides "you are hereby ordered to CEASE AND DESIST all 'kennel' operations," its scope is limited to "kennel" use as defined in the zoning by-law i.e., "a lot with structures or pens in which three (3) or more dogs, cats or other household pets that are more than six (6) months old are boarded, bred, or sold." Zoning By-law (2014), Ch. XVI, § 2.0. The Finks thus claim that the cease and desist order does not preclude any of their operations involving puppies under six months old or their pet supply sales. I disagree, and find otherwise. Reading the cease and desist order as a whole, it clearly encompasses all puppies and dogs of whatever age and prohibits commercial kennel and pet store use.

[Note 24] General Law c. 40A, § 3 provides, in part, "No zoning ordinance or by-law shall . . . prohibit, unreasonably regulate, or require a special permit for the use of land for the primary purpose of commercial agriculture."

[Note 25] To the extent the Finks breed or raise dogs at their property that they themselves permanently own, such use is agricultural use and thus permitted as of right in the Suburban District (R-2). See G.L. c. 40A, § 3; Town of Sturbridge, 35 Mass. App. Ct. at 925; Zoning By-law (1992), Ch. IV, § 2.4 & Table I. As a matter of zoning, they thus may breed and raise dogs that they permanently own at the property.

[Note 26] The Finks' use also does not constitute a "roadside stand" allowed by right in the Suburban District (R-2). The zoning by-law defines "roadside stand" as "a stand or other structure for the sale of produce or products principally produced on the premises on which the stand is situated." Zoning By-law (2014), Ch. XVI, § 2.0. The puppies and pet supplies that the Finks sell are not principally produced on the property. Others breed the puppies and produce the supplies elsewhere.

[A] zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such ordinance or by-law required by section five, but shall apply to any change or substantial extension of such use. . . . Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.

[Note 28] A change or extension of a nonconforming use may be permitted if the special permit granting authority finds that the use as changed or extended is not "substantially more detrimental than the existing nonconforming use to the neighborhood." G.L. c. 40A, § 6. No such finding has been made with respect to the 11 Larned Road property.

[Note 29] As previously discussed, most of their boarding and breeding was on their property across the street, not on the property now owned by the Finks. Even if the two properties are lumped together, however, the Torstis' operations on both properties were small scale. I do not believe the Finks' testimony that they found over 100 dog bowls in the 11 Larned Road outbuilding when they purchased the property, which they use to support their argument that the Torstis' operations were as large as theirs. I can believe there were a number of dog bowls, but not nearly the 100 they claim. In any event, the inference they seek to draw about the number of dogs that were on the property when the Torstis owned it does not follow from the existence of that many dog bowls. It is far more likely that numerous extra dog bowls were kept in the boarding operation to make things easier, i.e., having clean bowls ready to swap for dirty ones, rather than waiting for cleaning before replacement.

[Note 30] As previously noted, that house did not exist when the Torstis owned the property. Instead, the Torstis lived across the street.

If real property has been improved and used in accordance with the terms of the original building permit, no criminal or civil action intended to compel the abandonment, limitation or modification of the use allowed by the permit or the removal, alteration or relocation of a structure erected in reliance upon the permit by reason of an alleged violation of this chapter or of an ordinance or by-law adopted under this chapter shall be maintained unless the action, suit or proceeding is commenced and notice of the action, suit or proceeding is recorded in the registry of deeds for each county or district in which the land lies or, in the case of registered land, the notice is filed in the registry district in which the land lies within 6 years of the commencement of the alleged violation. No criminal or civil action intended to compel the removal, alteration, or relocation of a structure by reason of an alleged violation of this chapter or of an ordinance or by-law adopted under this chapter or the conditions of a variance or special permit shall be maintained unless the action, suit or proceeding is commenced and notice of the action, suit or proceeding is recorded in the registry of deeds for each county or district in which the land lies or, in the case of registered land, the notice is filed in the registry district in which the land lies within 10 years of the commencement of the alleged violation.

[Note 32] The ten year statute of limitations in G.L. c. 40A, § 7 that grandfathers non-conforming structures built without a building permit is inapplicable because it only applies to structures, not uses. See G.L. c. 40A, § 7.

[Note 33] To the extent town officials previously had at least some notice of the Finks' commercial kennel and pet store, the town is not precluded from now enforcing its zoning by-law. There is no estoppel against a municipality in such circumstances. See Cullen, 353 Mass. at 674675 ("The right of the public to have the zoning by-law properly enforced cannot be forfeited by the action of its officers."). For the same reason, the Board is not bound by prior representations made by town officials regarding the preexisting, nonconforming status of the Finks' property.

ROBERT FINK, BRIDGGETTE FINK, and LAUGHLIN KENNEL COMPANY v. MICHAEL LeDUC, PETER LaFLASH, JOHN SNEADE, AL St. GERMAIN, STEPHEN BALCUNAS, MICHAEL CAMOSSE, RYAN AVERY and DAVID SILVERMAN as members of the Town of Oxford Zoning Board of Appeals.

MISC 16-000377

July 6, 2018

Worcester, ss.

LONG, J.

DECISION