Agenda - Planning Commission - 11/01/2018

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September 10, 2018 I Volume 12 I Issue 17 Zoning Bulletin MASSACHUSETTS (07/06/18)—This case addressed the issue of whether a commercial kennel and pet store, operating in a residential zoning district that prohibited such uses, qualified as an "agricultural use," exempt from zon- ing regulation under state statutory law. It also addressed whether such uses were, under the facts of the case, protected preexisting, nonconforming uses. The Background/Facts: Robert and Bridgette Fink (the "Finks") operated a commercial kennel and pet store out of their residentially -zoned property in the Town of Oxford (the "Town"). The Finks did not live at the property, but used the house as an office and pet store for the sale of puppies, open to the public every day. The Finks' employees, puppy delivery trucks, and potential customers for the puppies regularly came and went from the property. At any given time, there were over 150 dogs and puppies on the premises. Nearly all of the puppies sold by the Finks were purchased by the Finks from out-of-state breeders. In 2018, the Finks were "on track to sell more than 1,000 puppies from this location, and perhaps as many as 1600." After neighbors complained to the Town about activities on the Finks' prop- erty, the Town's zoning enforcement officer (the "ZEO") ordered the Finks to cease and desist their kennel and pet store operations as such activities were prohibited in the Finks' residential zone under the Town's zoning by-law. The Finks appealed that order to the Town's Zoning Board of Appeals (the "ZBA"). The ZBA upheld the cease and desist order. The Finks then appealed the ZBA's decision to the Massachusetts Land Court. The Finks maintained that the ZBA improperly upheld the cease and desist order. The Finks first argued that their business was a "permitted agri- cultural use" allowed as of right in their zoning district and exempt from regulation under Massachusetts statutory law—G.L. c. 40A, § 3. General Law c. 40A, § 3 provides, in part: "No zoning ordinance or by-law shall . . . pro- hibit, unreasonably regulate, or require a special permit for the use of land for the primary purpose of commercial agriculture." The Finks also argued that, in any case, their commercial kennel and pet store was a grandfathered use (i.e., a permitted, preexisting nonconforming use) because there had been a kennel on the property since the 1950s before the Town had zoning by-laws. DECISION: Decision of ZBA affirmed, with exceptions. Addressing the Finks' arguments, the Massachusetts Land Court first held that the Finks' commercial kennel and pet store was not, as the Finks had claimed, an agricultural use that was allowed as of right in their zoning district and exempt from regulation under Massachusetts statutory law—G.L. c. 40A, § 3. Citing Massachusetts appellate court precedent, the court found that "the boarding, grooming, and training of dogs not owned or kept as breeding stock by [the property owner] [were] not agricultural uses, because [those] activities [were] not an integral part of the breeding or raising of dogs." Here, the court found that the Finks bought puppies and pet supplies from others, sold them to paying customers, and stored them on the property before resale. None of that was an agricultural use, concluded the court. Instead, the court found those activities were "an entirely commercial operation that [could] not lawfully take place on the property," under the Town's zoning by-laws. In other words, the court concluded that, pursuant to the Town's by-laws, prohibiting com- mercial kennels and pet stores in the zoning district in which the Finks' prop- 6 ©2018 Thomson Reuters