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Zoning: Related Cases

Case Name Citation Summary
Bal Harbour Village v. Welsh   879 So.2d 1265 (Fl. 2004)   Defendant owned four dogs prior to the enactment of an ordinance prohibiting municipality residents from owning more than two dogs in one household.  The municipality brought suit against Defendant for failing to comply with the ordinance.  The trial court denied the municipalities prayer for permanent injunctive relief, but the Court of Appeals overruled the decision holding the ordinance could constitutionally be enforced under the police power to abate nuisance.  
Black Hawk County v. Jacobsen (Unpublished)   2002 WL 1429365 (Iowa App. 2002) (Not Reported in N.W. 2d)   In this case, Donna Jacobsen appealed a district court order finding she had neglected fifty-six dogs in the course of her operation of a federal and state licensed kennel in Jesup.  On appeal, Jacobsen contended that the district court lacked subject matter jurisdiction because federal law (the Animal Welfare Act) preempts state regulations of federally licensed kennels.  The court disagreed, finding the Act expressly contemplates state and local regulation of animals.  Further, a plain reading of the Animal Welfare Act shows that Congress demonstrated no express or implied intent to preempt state or local government from regulating in this area.  
Bormann v. Board of Supervisors In and For Kossuth County   584 N.W.2d 309 (Iowa 1998)  

The court held that a statutory immunity provision designed to protect farming operations from nuisance litigation constituted a taking under the Fifth Amendment because the right to maintain an action for nuisance at common law was considered an easement. 

 
City of Marion v. Schoenwald   631 N.W.2d 213 (S.D.,2001)   To keep excessive numbers of large dogs from becoming a public nuisance, the City of Marion, South Dakota passed an ordinance that, among other things, limited households to four dogs, only two of which could weigh over 25 pounds.  Schoenwald owned three dogs: one shepherd-collie mix weighing 75 pounds and two golden retrievers, weighing 30 pounds and 20 pounds.  She was then notified that by housing three dogs weighing over 25 pounds she was in violation of the ordinance.  She failed to comply with the City's order to remove one dog and was issued a citation.  The Supreme Court reversed the lower court's ruling in Schoenwald's favor and found that South Dakota law permits municipalities broad power to regulate the keeping of dogs; thus the weight limitation included in the City's comprehensive pet ordinance was within its authority.   
City of Whitehall v. Zageris (Alise K.)   1985 WL 55 (Ohio App. 10 Dist.)  

Defendant was charged with violation of two ordinances of the City of Whitehall, one charge being of keeping or harboring noisy dogs, and the other being a charge of keeping or harboring more than three dogs.  After a jury trial, defendant was found not guilty of keeping or harboring noisy dogs but guilty of keeping or harboring more than three dogs.  Of the ten points raised on appeal, defendant raised a constitutional challenge to the zoning ordinance, claiming that the trial court erred by not holding Whitehall Municipal Ordinance 505.13 (possessing more than three dogs) was unconstitutional.  In denying her claim, the court fist noted that this type of ordinance passes facial constitutionality based on previous caselaw.  Further, there was no evidence that this ordinance was enacted or enforced with a discriminatory intent.

 
Commonwealth v. Creighton   639 A.2d 1296 (Pa.Cmwlth.,1994)  

In this Pennsylvania case, a cat owner challenged a local ordinance that limited the number of cats she could own at her residence (she owned 25 cats that were rescued "mousers" from factories; the ordinance limited ownership to 5).  The court noted that the preamble to the ordinance stated that pursuant to the Borough Code and "in the interest of preserving the public health, safety and general welfare of the residents ... [the Borough] desires to limit the number of dogs and cats kept by any one person and/or residence," but did not state what legitimate public health, safety and welfare goals the Borough sought to advance by enacting this ordinance.  Thus, from the information before the court, it could not say whether the Borough ordinance here was a reasonable means to effectuate a legitimate governmental goal. 

 
Commonwealth v. Gardner   74 Pa. D. & C. 539 (Pa. 1950)   In this Pennsylvania case, a new resident moved next door to a woman who had been operating a kennel for years.  He then complained to the borough council which then amended an ordinance such that the keeping of more than six dogs over six months of age was made a nuisance per se, illegal and a violation of the ordinance.  The court held that it did not believe that the borough council or the court had the power or the authority to determine that more than a certain number is a nuisance per se, and less than that number is a nuisance only upon proof of the same being a nuisance. "In other words, it is our opinion that the borough council, in the exercise of its police power may not unreasonably and arbitrarily prohibit things which were not nuisances at common law, and their declaration in an ordinance that a thing is a public nuisance does not make it so, if it is not a nuisance in fact . . ."  
Farmegg Products, Inc. v. Humboldt County   190 N.W.2d 454 (Iowa 1971)   Court held that intensive egg-laying facilities did not constitute buildings used for 'agricultural purposes' and were not exempt from county zoning ordinances.  
Goodell v. Humboldt County   575 N.W.29 486 (Iowa 1998)  

The issue of county versus local control over livestock regulations came to a head when the Iowa Supreme Court invalidated a series of ordinances that had been enacted by the Humboldt County Board of Supervisors to add additional regulations to the livestock industry and to address problems created by confined animal feeding operations in the county. The court ruled that the ordinances were inconsistent with state law and invalid under the doctrine of implied preemption. 

 
Hendricks v. Barlow   656 N.E.2d 481 (Ind. 1995)  

Landowners were held in violation of a zoning regulation, established under a Hendricks County ordinance, which forbade having wild animals residing on residential property.  The trial court held that the county could not pass such a law, since it would be preempted by state and federal law.  However, on appeal, this Court found that federal  (the AWA) and state law did not preempt the County from passing such ordinances.  The trial court erroneously attempted to interpret the law when it was not ambiguous, and, thus, preemption  by state and federal law should not have been found.  Thus, the zoning regulation was permitted.

 
Holcomb v. City and County of Denver   606 P.2d 858 (Colo., 1980)   In this Colorado case, the defendant was convicted in the county court of keeping dogs in a residential zone in violation of zoning ordinance.  The question before the court was whether section 2-3(3)(a) provides ascertainable standards which can be constitutionally enforced by the zoning administrator.  The court held that the ordinance is sufficiently specific to pass constitutional muster.  The Court also held that the zoning ordinance relating to accessory uses allowed in residential zones provided sufficient guidelines for it to be constitutionally enforced by the zoning administrator and that the municipality had not delegated to the zoning administrator the authority to determine by regulation the number of dogs which may be kept in a residential zone as an accessory use.   
In re Tavalario   --- A.2d ----, 2006 WL 1735225 (N.J.Super.A.D.)   This appeal presents a challenge by Anthony Tavalario to the manner in which the State Agricultural Development Committee (SADC) determines whether keeping horses on property constitutes a "commercial" agricultural operation that exempts the property from local zoning and other land use restrictions as the result of the preemptive force of the Right to Farm Act, N.J.S.A. 4:1C-1 to -10.4. The SADC found that Tavalario's use of the land did not qualify for protection under the Act, because he could not demonstrate that, as of July 3, 1998, his operation produced "agricultural or horticultural products worth $2,500 or more annually" as required by the definitional section of the Act. Tavalario contends on appeal that the SADC erred because it failed to consider as income in 1998 uncollected stud fees, the imputed value of a horse sold as a broodmare in 2002 for $8,000 and another horse sold in 2003 for $5,400, and race winnings of an undisclosed amount allegedly awarded at an unspecified time after 1998. The court found no grounds for reversal of the SADC's interpretation of the production requirements of the definition of "commercial farm" found in N.J.S.A. 4:1C-3 or its application to Tavalario's case.  
Kuehl v. Cass County   555 N.W.2d 686 (Iowa 1996)   The issue before the Iowa Supreme Court was whether hog confinement buildings could be considered “agricultural” so as to fall within the state's agricultural zoning exemption. The court held that hog confinement buildings were within the agricultural building exemption and thus exempt from county zoning regulations.  
Luper v. City of Wasilla   215 P.3d 342 (Alaska,2009)  

Plaintiff appealed a grant of summary judgment in favor of the City of Wasilla, Alaska's enforcement action over zoning ordinances. The facts stem from the City's denial of plaintiff's application for a use permit in 2005 to run an eighteen-dog kennel. Plaintiff argued on appeal that Wasilla's former three-dog limit infringed on her property rights in both her land and her dog. This court agreed with the lower court that the provision here bore a "fair and substantial relationship" the government purposes of controlling dog noise, reducing dog odor and pollution, and preventing loose dogs. Further, the court found that it was not reasonable for the plaintiff to rely on the city clerk's statement that she only needed a kennel license to operate a hobby kennel.

 
Muehlieb v. City of Philadelphia   574 A.2d 1208 (Pa.Cmwlth.,1990)   In this case, the city of Philadelphia filed a suit against a homeowner seeking to restrain her from violating the health, housing and zoning provisions of city code by owning more than ten dogs.  On appeal, the homeowner challenged the local ordinance as being preempted by the state Dog Law.  The Commonwealth Court held that the state Dog Law, which permitted holder of private kennel class I license to house up to 50 animals did not preempt city's animal control law which set limit of 12 dogs, and the homeowner's housing of 20 dogs was a public nuisance that the city could enjoin.  
People v. Strobridge   339 N.W.2d 531 (Mich.App.,1983)  

In this Michigan case, the defendant appealed his conviction of keeping more than three dogs on his premises without a kennel license in violation of Grandville ordinances, § 21, No. 159-A.  On appeal, defendant asserted that the trial court improperly denied his “nonconforming use” defense; that is, he claimed the ordinance at issue was a zoning ordinance rather than a regulatory ordinance.  Relying on a case that held that prior nonconforming use (where a person has been using property in a nonconforming way prior to the adoption of the zoning ordinance), the court found that indeed defendant was entitled to present such a defense, as he owned the dogs on the property prior to adoption of the ordinance.  Defendant next argued that the trial court erred in ruling that the ordinance was a constitutional exercise of the city's police power.  While the court observed that criminal ordinances are to be more strictly construed than ordinances involving a civil penalty, it still found that the ordinance at issue was a valid exercise of police power, especially considering that a previous case had upheld a similar ordinance that limited ownership to only two dogs.

 
Rosenfeld v. Zoning Bd. of Appeals of Mendon   940 N.E.2d 891 (Ma. App., 2011)   A zoning board granted landowner’s application for a special permit, and neighbor property owners appealed. The Appeals Court of Massachusetts held that defendant’s proposed use of land for horse stables fit within the agricultural use exception of the zoning ordinance and by-laws, and that plaintiffs had standing to enforce a deed restriction on defendant’s property.  
Save the Pine Bush, Inc. v. Common Council of City of Albany   56 A.D.3d 32, 865 N.Y.S.2d 365 (N.Y.A.D. 3 Dept.,2008)  

An Organization dedicated to the protection of the Karner Blue Butterfly and other species that live in an area of land used as a nature preserve brought challenge against the City Common Council’s; (“Council”) approval of a Developer’s rezoning application for the land.  The Supreme Court, Appellate Division, Third Department, New York, held that the Organization had standing to bring suit, because the Organization showed the existence of an actual injury different from that of the general public, due to the Organization’s regular use of the preserve, at least one member’s nearby residency to the preserve, and the Organization’s historic involvement in the protection and preservation of the preserve. (2010 - Order Reversed by Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297, 918 N.E.2d 917, 890 N.Y.S.2d 405, 2009 N.Y. Slip Op. 07667 (N.Y. Oct 27, 2009) (NO. 134)). 

 
Siegert v. Crook County   266 P.3d 170 (Or.App., 2011)   An individual appealed County Court’s decision to approve the location of a dog breeding kennel in a zone where such kennels were not permitted. The county interpreted the code that was in effect at the time the kennel began operating to allow dog breeding as animal husbandry, and thus permissible farm use. The Court of Appeals found the county's interpretation to be plausible.  
State ex rel. Miller v. DeCoster   596 N.W.2d 898 (Iowa,1999)   State of Iowa sued the owner of a hog confinement operation for violations of manure disposal and animal control regulations.  
State v. Beckert   61 A.2d 213 (N.J. 1948)   This New Jersey case involved an appeal of a borough ordinance that limited ownership to three licensed dogs.  The prosecutrix was found to have been keeping 39 dogs.  The court found that she presented no evidence that she was operating a kennel, nor was the ordinance unreasonable in its restriction.  
State v. Schuler (Unpublished)   1997 WL 76337 (Unpub. Minn. 1997)   This Minnesota lawsuit arose from the enforcement of a Little Canada ordinance prohibiting the keeping of more than three adult dogs in any residential dwelling within the city's residentially zoned districts.  In reviewing a challenge to the law, the court first noted that a city's police power allows it both to regulate the keeping of animals, and to define nuisances and provide for their abatement.  Further, municipal ordinances are presumptively constitutional and the burden rests on the party challenging it.  Here, Schuler failed to offer evidence that regulating the number of dogs per household was unrelated to controlling the problems of dog noise and odor as they affect the health and general welfare of the community.  
Thompson v. Hancock County   539 N.W.2d 181 (Iowa 1995)   In this case, the Supreme court of Iowa held that hog confinement buildings were agricultural buildings and thus exempt from county zoning ordinances.  
Village of Carpentersville v. Fiala   425 N.E.2d 33 (Ill.App., 1981)   In this Illinois case, the defendant, Joseph R. Fiala, appealed a violation of the Village Code of Carpentersville, which prohibited the ownership of more than two adult dogs at his single-family residence.  In a hearing, one of defendant's neighbor's testified that the defendant was maintaining 15 large red dogs (Irish setters).  The Illinois Appellate Court held that the village had statutory authority to enact any ordinance necessary for the promotion of health, safety and welfare of the community and that a municipality may also pass ordinances that "define, prevent, and abate nuisances."  Further, the court also held that the village ordinance is not unconstitutional as violative of equal protection based on a classification between single-family residences and single-family units within multiple housing buildings, where such considerations of indoor and outdoor space, density, and proximity to others, noise levels, and structural differences, are rationally related to the object of the ordinance.  
Zageris v. Whitehall   594 N.E.2d 129 Ohio App. 10 Dist.,1991.  

The single-family residence property owner and owner of dogs kept on property filed suit for declaratory judgment, petition for habeas corpus, and civil rights claims against city based on city's enforcement of ordinance prohibiting number of dogs on property.  He then appealed the ruling in favor for the city.  The Ohio Court of Appeals held that the local ordinance limiting number of dogs on single family property was a nuisance and not zoning measure and consequently a valid exercise of city's police power.

 

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