Agenda - Planning Commission - 09/01/1998

Home

Page 6 --August 25, 1998 Z.B. Special Exception -- County says 10-dog kennel will reduce value of neighbors' homes Citation: Scott v. Marshall County Board of Zoning Appeals, Court of Appeals of Indiana, 3rd Dist., No. 50AO3-9706-CV-193 (1998) The Scotts applied for a special exception to build a kennel to raise pedi- gree Rottweilers on their farm in Marshall County, Ind... The zoning adminis- trator recommended that they amend their request by moving the kennel further from their neighbors, but the Scotts withdrew their request before the 'zoning board voted on it. The Scotts requested and received permission to construct a pole building in the same place as their proposed kennel. The permit specifically stated the Scotts couldn't use the building as a kennel without the zoning board's permission. A year later, the county cited the Scotts with zoning violations for operat- ing an illegal kennel. The Scotts applied for a special exception to use the pole building as a 10- dog kennel. The proposed kennel would be 2,244 square feet and would be within 600 feet of five homes. The board held a hearing, at which several neighbors complained the seven dogs the Scotts already kept in the building were a problem because they barked ali day and night. The board denied the Scotts' request, finding the kennel would prevent neighbors from enjoying their property and would diminish property values in the area. The Scotts appealed to court, arguing a kennel was a permitted use in an agricultural district so they didn't even need a special exception. The zoning ordinance listed "veterinary facilities and kennels" as uses requiring a special exception, which, according to the Scotts, meant only kennels associated with a veterinary facility needed a special exception. The Scotts also claimed the board should have given them a special exception if they needed one. The court affirmed the board's decision, and the Scotts appealed. DECISION: Affirmed. The board properly denied the Scotts' request for the special exception they needed to operate a kennel. The Scotts couldn't operate their kennel without a special exception. The zoning ordinance clearly stated a special exception was needed to operate a kennel in an agricultural district. Finding that the ordinance required a special exception only if the kennel was part of a veterinary facility would render meaningless the ordinance's definition of a "kennel" as any premises upon which more than four dogs, cats, or other domestic animals were bred or boarded. The board had more than enough evidence to find the Scotts' kennel would prevent neighbors from enjoying their property and would reduce property values in the neighborhood. There were five homes within 600 feet of the kennel. The Scotts already housed seven dogs in the building, despite the ordinance's restrictions, and neighbors complained noise was a problem. Any