Zoning

Summary: Richard G. Simpson, Appellant, lived in a residential district in Columbiana, Ohio. Simpson kept eight hens, a chicken coop, and an enclosure on his property for approximately seven years. On July of 2016, Simpson was informed that keeping chickens in the district he lived in was a zoning violation, however, Simpson found no prohibition in the Code regarding the keeping of chickens in a residential district. The city sent Simpson violation notices and instructed him to remove the chickens from the property. Simpson appealed the violation to the Planning Committee. On June 20, 2017 the City Council voted to place a resolution on the ballot for voters to decide whether chickens could be kept in residential districts. The resolution failed at the general election. A second notice was sent to Simpson and Simpson refused to remove the chickens from his property. The City instituted an action for declaratory judgment and injunctive relief on March 13, 2018. The trial court held that the keeping of chickens was prohibited in the City’s residential districts and that the city ordinances were valid on their face and were not arbitrarily or capriciously applied. Simpson appealed. Simpson argued that keeping the chickens did not constitute an agricultural use or poultry husbandry because he kept them as a hobby and therefore does not violate any of the city ordinances. The Court did not agree and concluded that the keeping of chickens fell within the definition of agriculture and was, therefore, prohibited based on the ordinances. Simpson next argued that since he acquired the chicken and coop prior to the City applying the prohibitions, it was a legal non-conforming use and that the zoning code contained no language that would have put him on notice that such property was not permitted on his real property. The Court concluded that there was no error by the trial court in holding that Simpson’s use of his land was not a legally conforming use. Finally, Simpson argued that the one of the city ordinances was arbitrary and unreasonable because there was no evidence of the chickens, coup, or enclosure constituting a nuisance. The Court concluded that a city is not required to show that a property owner’s proposed use constitutes a nuisance in order to establish the constitutionality of the ordinance. The Court found that the ordinance was neither arbitrary nor unreasonable and bears a substantial relation to the public health. The ordinance was a valid exercise of the City’s police power. The Court ultimately held that the City ordinance prohibited the keeping of chickens in residential districts. The prohibition was inferred from reading the ordinance in concert with other Code sections. The judgment of the trial court was affirmed.

Summary: Joshua Pernat and Sara Manzke owned property that had four miniature goats and two geese on it. Sara (plaintiff) applied for a zoning variance and a conditional use permit to accommodate her emotional support animals. Jefferson County and the Town of Ixonia denied her applications. Sara then brought forth claims under the Fair Housing Amendments Act and Wisconsin’s Open Housing Act that she was discriminated against by Jefferson County and the Town of Ixonia. Joshua and Sara also sought a notice of removal of a small claims action brought forth by Jefferson County seeking monetary sanctions for the alleged violations of the zoning variance. Jefferson County argued that the plaintiff’s federal reasonable accommodation claim was not ripe because the County never made a final decision with respect to Sara’s applications for a variance and conditional use permit. When the Town of Ixonia voted to recommend that Jefferson County deny the plaintiff’s variance application, the plaintiff withdrew her applications from consideration. Sara argued that the town’s denial “foretold a denial by the County,” and any further appeal to the County would have been fruitless. The Court did not agree. The County had no obligation to follow the town’s recommendation. The Court dismissed plaintiff’s Fair Housing Amendments Act claim for lack of subject matter jurisdiction and accordingly dismissed plaintiff’s state law claim without prejudice. Since Sara was unable to state a federal claim, the Court also held that Sara and Joshua could not remove the small claim by Jefferson County to federal court.

Summary: This California statute states that no governing documents shall prohibit the owner of a separate interest within a common interest development from keeping at least one pet.

Summary: The plaintiff in this case applied for a conditional use permit (CUP) to keep up to five tigers on her property, but the county planning commission and board of supervisors denied her application. In her application, plaintiff indicates that the project would include three tiger enclosures, a 13,500-square-foot arena with a roof over 14 feet in height at its highest point, with the area surrounded by an eight-foot-high chain link fence encompassing over seven acres. The captive tigers would be used in the entertainment industry: movie sets, television commercials, and still photography. In denying the application, the Board found that the plaintiff failed to prove two elements necessary for a CUP: the project is compatible with the planned uses in the general area, and the project is not detrimental to the public interest, health, safety or welfare. The court noted that plaintiff bears the burden of demonstrating her entitlement to the permit. In fact, the court noted that while plaintiff claims "an unblemished safety record," she submitted videos showing tigers "roaming freely in the backyard of her Beverly Hills home" and tigers posing with plaintiff and her sister on the beach. The court observed that, "[h]er well-intentioned desire to own [the tigers] does not trump her neighbors' right to safety and peace of mind." The judgment of the lower court was affirmed.

Summary: In this case, the Township brought action against property owners to enjoin the owners from possessing exotic animals on the property, operating an animal exhibition on the property, and operating a business pelting exotic animals on the property. The District Court invalidated the township's exotic animal ordinance as conflicting with state statute, determined that an animal exhibition was not a permissible use under the township's zoning ordinance, and permanently enjoined the owners from operating an animal exhibition and conducting any retail sales, except for horticultural products produced on the property. This court held that the exotic animals ordinance did not conflict with state statute nor was it preempted. Further, this court held that the property owners' grandfathered possession and exhibition of exotic animals was limited to one wolf; animal control officer exception to exotic animal possession was limited to temporary possession of exotic animals in conjunction with owner's work as an animal control officer; township was not estopped from enforcing its exotic animal ordinance; and interpreting zoning ordinance's language to require sale of horticultural products from the land itself was not inherently unreasonable. Affirmed in part, reversed in part, and remanded; motion dismissed.

Summary: In this case, the plaintiffs appealed a Zoning Board that granted their neighbor a special permit allowing four dogs to be kept at Ms. Sullivan's home. The dogs—pedigreed Eurasiers—are Ms. Sullivan's personal pets and live with Ms. Sullivan inside her house, have someone with them at all times, and spend most of their time indoors. When they are outside, they are confined to a chain-link fenced-in area behind the house. The permit has some conditions that must be met for the dogs to remain on the property, one of which is the dogs not become a nuisance. The court affirmed the grant of the special permit based on the testimony and exhibits admitted at trial after assessing the credibility, weight, and appropriate inferences to be drawn from that evidence. The Board's decision granting the special permit was AFFIRMED.

Summary: Appellant sought review of the circuit court's order upholding the Lexington County Board of Zoning Appeals' unanimous decision that the county zoning ordinance prohibits Appellant from operating a dog grooming business at her home. The appeals court found that the word kennel, as used in the Lexington County Zoning Ordinance for Resident Local 5 (RL5), included dog grooming. Since Appellant’s dwelling was zoned RL5 and the ordinance prohibited kennels in RL5, the appeals court upheld the circuit court’s decision.

Summary:

Applicants sought a zoning variance to operate a nonprofit dog-rescue shelter. The zoning board denied the application, concluding that the dog-rescue operation run by applicants was a non-permissible “kennel” under the township's zoning ordinance. Applicants appealed to a trial court. The trial court determined that because applicants did not receive “economic gain” or a profit for their efforts, their dog-rescue operation was not a “kennel” and, therefore, was not a prohibited land use under the zoning ordinance. The trial court therefore reversed the zoning board's order. Intervenors, the applicants’ neighbors, appealed from the trial court's decision. Upon review, the Commonwealth Court of Pennsylvania concluded that the term “kennel,” as used in the zoning ordinance, was ambiguous, and had to be construed in favor of applicants to find that applicants' operation of a large dog rescue facility on their property did not constitute the operation of a kennel. The appeals court therefore affirmed the trial court's decision.

Summary: This Virginia chapter concerns pet cemeteries. Pet cemetery means land, together with any structures, facilities, or buildings appurtenant thereto provided to members of the public for use or reservation for use for the individual interment, above or below ground, of pet remains. The owner of land used for a pet cemetery must file a declaration in the office of the clerk restricting the land use. Each pet cemetery operation must establish a "perpetual care fund" of at least $12,000 before the first plot is sold in the pet cemetery. Violation of § 57-39.22 relating to the perpetual care fund is a Class 3 misdemeanor.

Summary:

This Newcastle, Oklahoma ordinance declares it to be unlawful and an offense for any person to keep any animal within the corporate limits of the city except as provided by these provisions. A violation of this ordinance will result in a fine not to exceed $200.