Wong Notices of Violation

• Court: Vermont Superior Court
• Decided: March 12, 2007
• Docket: 169-07-06 Vtec
• Status: Published

Opinion

STATE OF VERMONT

ENVIRONMENTAL COURT

} In re: Kim Wong Notices of Violation } Docket Nos. 169-7-06 Vtec and 293-12-06 Vtec (Appeals of Wong) } }

Decision and Order on Appellant’s Motion for Summary Judgment

In Docket No. 169-7-06 Vtec, Appellant Kim Wong appealed from a decision of the

Zoning Board of Adjustment (ZBA) of the Village of Essex Junction upholding a Notice of

Violation for raising livestock in a residential district, contrary to §725 of the Village of

Essex Junction Land Development Code. In Docket No. 293-12-06 Vtec, Appellant

appealed from a later decision of the ZBA upholding a Notice of Violation for operating

an animal boarding facility. The two appeals have been consolidated. Appellant is

represented by Jason Ruwet, Esq.; the Village of Essex Junction is represented by David

Barra, Esq. Appellant has moved for summary judgment. The following facts are

undisputed unless otherwise noted.

Appellant keeps twenty homing pigeons in an accessory building (storage shed)

attached to the rear of his attached residential garage at his property at 25 Aspen Drive, in

the R-1 Residential zoning district. The property is 100' x 150' in area and contains his

house, garage, driveway and exterior deck, as well as the storage shed. Appellant applied

for and received a zoning permit in early 2006 to construct the 8' x 15' accessory building

as a “storage shed;” the application listed as the proposed storage: “lawnmower, lawn

furniture, snow[bl]ower, sc[r]ap stuff” and did not mention the housing of pigeons or the

keeping of any animals.

1 On April 19, 2006 the Zoning Administrator issued a Notice of Violation to

Appellant for violation of §725 of the Village’s Land Development Code, which prohibits

the “raising, keeping, or harboring of livestock, wild animals or other domesticated farm

animals,” whether “for personal use or commercial purposes,” except in the Planned

Exposition and Planned Agricultural zoning districts, and which also requires a minimum

parcel size of ten acres for such a use. Appellant timely appealed to the ZBA, which upheld

the Zoning Administrator’s decision; Appellant’s appeal of that decision is Docket No. 169-

7-06 Vtec.

After the motion for summary judgment had been filed in Docket No. 169-7-06 Vtec,

the Village issued a second Notice of Violation to Appellant for operating an animal

boarding facility in a district in which it is not an allowed use. In addition, the Notice of

Violation cited the use as a change of use from the storage for which the shed’s zoning

permit was issued. Appellant timely appealed the second Notice of Violation to the ZBA,

which upheld the Zoning Administrator’s decision; Appellant’s appeal of that decision is

Docket No. 293-12-06 Vtec. No enforcement action has been filed based on either Notice

of Violation.

The general rules of statutory construction apply when interpreting zoning

ordinances. In re Casella Waste Management, 2003 VT 49, ¶6. The court must “construe

words according to their plain and ordinary meaning, giving effect to the whole and every

part of the ordinance,” In re Stowe Club Highlands, 164 Vt. 272, 279–80 (1995) (citation

omitted), so that no language is surplusage, In re Dunnett, 172 Vt. 196, 199 (2001), and so

that the construction does not produce an absurd result. See, e.g., Willard v. Parsons Hill

Partnership, 2005 VT 69, ¶21, 178 Vt. 300, 308 (2005).

Section 725 of the Land Development Code is applicable to the “raising, keeping, or

harboring” of three categories of animals: (1) livestock, (2) other domesticated farm

animals, and (3) wild animals. The Land Development Code specifically defines “livestock

2 and other domesticated farm animals” as those animals that are “typically associated with

farm or agricultural practices.” §201(C)(102). The definition specifies chickens, ducks,

geese and ostriches as birds included in this category. Neither party asserts that racing

pigeons are typically associated with farm or agricultural practices. Therefore, although

they may qualify as domesticated animals, racing pigeons do not fall within the definition

of “livestock and other domesticated farm animals.” (Emphasis added.)

Nor do racing pigeons fall within the definition of the term “wild animals,” which

is also specifically defined in the Land Development Code as “any non[-]domesticated

animals.” §201(C)(196). Neither party asserts that racing pigeons fall outside the category

of “domesticated animals” as that term is commonly used, §201(A)(4), to mean an animal

that has been trained “to live in a human environment and be of use to humans.”

American Heritage Dictionary of the English Language1 (4th ed. 2000). Additionally, the

state statutory definition, §201(A)(3), of the term “domestic animal” includes psittacine

birds, 6 VSA §1151(2), further defined by the rules of the State of Vermont Department of

Agriculture, Food and Markets to include birds “commonly sold in pet shops . . . including

. . . pigeons[.]” Rules Governing the Importation of Domestic Animals §I(58).

As the twenty pigeons raised and kept by Appellant are kept for racing purposes,

that is, are trained to be of use to humans, they fall within the category of domesticated

animals. They are not wild animals, nor are they livestock or other domesticated farm

animals; therefore they are not subject to regulation under §725 of the Land Development

Code. In Docket No. 169-7-06 Vtec, summary judgment must be granted to Appellant,

vacating the Notice of Violation and concluding that appeal.

In Docket No. 293-12-06 Vtec the Village argues that, even if Appellant’s pigeons do

1 Available at: http://www.bartleby.com/61/23/D0332300.html

3 not fall within the regulatory ambit of §725, the shed’s use for keeping five or more animals

makes it an animal boarding facility, also not an allowed use in the R-1 district. Further,

the Village argues that this use is beyond the scope of Appellant’s original application and

the resulting permit for the shed as a storage shed.

Two definitions in the Land Development Code are pertinent to this analysis: the

definition of “animal boarding facility or kennel,” and the definition of “animal shelter.”

Section 201(C)(12) defines the use category of “animal boarding facility or kennel”as any

“land, structure, or facility designed and used for the temporary storage or housing of five

(5) or more domesticated animals at any time,” exclusive of animals on a working farm.

Section 201 (C)(14) defines the use category of “animal shelter” as “any accessory structure

or property which is used for housing or sheltering four (4) or fewer common household

pets over three (3) months of age, outside of the principal permitted structure.” Pursuant

to the use table at §615, animal shelters are allowed as a permitted use in most zoning

districts, including the R-1 zoning district. By contrast, animal boarding facilities are

allowed only in the Planned Exhibition zoning district (as a conditional use) and in the

Planned Agriculture zoning district (as a permitted use).

As the accessory building houses more than four pigeons, even if the pigeons qualify

as “common household pets” the storage building does not qualify as a permitted-use

animal shelter under the definition in §201 (C)(14).

The use category of “animal boarding facility” does not require that the facility be

operated as a business. Rather, the essential elements are that the land, structure or facility

be “designed and used” for the purpose of the “temporary storage or housing” of at least

five domesticated animals.

Appellant does not contest that the shed is designed and used for the purpose of

housing twenty racing pigeons, but argues that the word “temporary” should be

interpreted to modify both the word “storage” and the word “housing.” That is, Appellant

4 argues that the use category of “animal boarding facility or kennel” only covers the

temporary housing or temporary storage of animals, and that it does not cover the

permanent housing of animals. This interpretation, however, would lead to an absurd

result, as, for example, a breeding kennel of ten dogs kept permanently on a property,

where only the offspring are sold, would not be covered, although a boarding kennel

where only five dogs were housed while their owners were away would be covered. The

purpose of restricting this use category only to non-residential or agricultural

neighborhoods evidently recognizes the potential for adverse effects resulting from the

noise or odor that can result from the keeping of more than five domestic animals,

regardless of whether any individual animals are on the premises on a temporary or a

permanent basis. By its terms the definition does not distinguish by the size or type of the

animals involved, but rather by whether the land, structure or facility is “designed and

used” to house that number2 of animals.

Accordingly, as some portion of Appellant’s shed is designed and used to house the

twenty racing pigeons, it falls within the use category of “animal boarding facility,” which

is not an allowed use in the R-1 zoning district. Moreover, regardless of whether it is an

“animal boarding facility,” as Appellant only received a zoning permit to construct a

storage shed for the storage of household items, and not live animals, the use of the shed

2 The Court recognizes that people may keep smaller animals and birds as pets entirely within their houses, and may easily exceed five or more small animals such as some combination of cats, parakeets, gerbils, guinea pigs and the like. However, because the definition of “animal boarding facility” requires the facility, structure or land to be “designed” as well as “used” for the purpose of housing animals, we must note that this decision specifically does not address whether or at what point the keeping of any particular number of household pets or domestic animals (other than those covered by §725) within a residence would or would not be allowed as an accessory use to the residential use.

5 to house the racing pigeons also is beyond the scope of the use authorized by that permit.

Thus, summary judgment must be granted to the Village, upholding the second

Notice of Violation, in that the use of an accessory building to keep more than four pigeons

is not allowed within the definition of “animal shelter,” and such a use is beyond the scope

of the permit issued for the construction of that building as a storage building, and falls

within the use category of “animal boarding facility,” which is not an allowed use in the

district.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that

Appellants’ Motion for Summary Judgment is GRANTED regarding Docket No. 169-7-06

Vtec; the Notice of Violation that is the subject of that appeal is hereby vacated.

Appellants’ Motion for Summary Judgment is DENIED in Docket No. 293-12-06 Vtec, and

summary judgment is hereby GRANTED to the Village, upholding the Notice of Violation

that is the subject of that appeal. This decision concludes both appeals.

Done at Berlin, Vermont, this 12th day of March, 2007.

_________________________________________________ Merideth Wright Environmental Judge