Agenda - Planning Commission - 11/01/2018

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Zoning Bulletin September 10, 2018 I Volume 12 I Issue 17 erty was located, the Finks could not lawfully sell any dogs that were not bred at the property and could not sell any pet supplies —because those were not agricultural activities exempted from regulation under Massachusetts statu- tory law, G.L. c. 40A, § 3. Notably, however, the court did find that the breeding and raising and train- ing of dogs owned by a property owner on the land was an "agricultural pursuit," allowed under G.L. c. 40A, § 3. Thus, the court concluded that the Finks could, "as a matter of zoning, breed and raise dogs that they permanently own at the property since that is a protected agricultural use." The Finks had also argued that, whether or not exempted as agricultural activities, their commercial kennel and pet store were protected from regula- tion as a preexisting nonconforming use because there had been a kennel on the property since the 1950s—before the Town had zoning by-laws. The court disagreed with the Finks' argument. The court explained that "[a] prior nonconforming use is one that is law- fully carried on at the time a zoning ordinance or by-law is adopted that prohibits that use." The court further explained that, under Massachusetts statutory law—G.L. c. 40A, § 6, "a preexisting nonconforming use is not subject to a subsequently enacted zoning by-law." However, emphasized the court, "any change or substantial extension of such use" has no such protection. (See G.L. c. 40A. § 6.) The court acknowledged that the Town first adopted zoning in 1956 and a zoning by-law in 1968. (Since adoption of the zoning by-law, and with each subsequent version of the by-law, commercial kennels and pet store uses were prohibited in the zoning district in which the Finks' property was located.) The court further acknowledged that at the time the Town first enacted zoning, the then -owners of the Finks' property boarded and bred dogs. The court found, however, that the Finks' current use was "substantially different in scope and in kind" from the original owners' vacation boarding and small breeding operation. While the original owners' small operation focused on vacation dog breeding, the Finks' operation was year-round, involving the purchasing and selling of as many as 1600 puppies per year to hundreds of customers, and including a pet store with employees, retail customers, and large delivery trucks coming and going on the property. Accordingly, the court concluded that given the substantial difference in scope and kind of use, the Finks' com- mercial kennel and pet store were not protected preexisting, nonconforming uses. See also: Town of Sturbridge v. McDowell, 35 Mass. App. Ct. 924, 624 N.E.2d 114 (1993). See also: Almeida v. Arruda, 89 Mass. App. Ct. 241, 46 N.E.3d 1036 (2016). © 2018 Thomson Reuters