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HomeMy WebLinkAboutAP200700007 Correspondence 2015-03-07COUNTY OF ALBEMARLE �rR[;SNtP MEMORANDUM TO: Bill Fritz, Chief of Zoning/Deputy Zoning Administrator FROM: Erika Castillo, Paralegal DATE: March 7, 2015 RE: The Number of Dogs Considered Accessory to a Primary Residential Use The Zoning Department has asked for information from the County Attorney's Office regarding the number of dogs accepted as accessory to a primary residential use. In a residential zoning district, a landowner is keeping anywhere from 5 to 8 dogs. Staff has seen 8 cages in the backyard and heard 5 to 6 different dogs barking. The landowner is acting as a "foster parent" for the dogs which come to her house after they have been abandoned and it is believed that she tries to find new owners for the dogs. The dogs are constantly barking and a neighbor has complained. The question arises then, is the keeping of this number of dogs accessory to a primary residential use? In Albemarle County, "accessory use, structure" is "a subordinate use, building or structure customarily incidental to and located upon the same lot occupied by the primary use, building, or structure, and located upon land zoned to allow primary use." (Albemarle County Code § 18 -3.1, quoted in Albemarle County Land Use Handbook August 2007, at 17 -4). The area dedicated to accessory use in this case is the backyard and the use occurs on an everyday basis with the number of dogs present fluctuating at any given time. The use is relatively intense, with 8 cages for between 5 to 8 dogs on a daily basis with resultant complaints by a neighbor of constant barking by the dogs being kept in the backyard. The keeping of dogs is an accepted accessory use in general, but the number of dogs as an accessory use seems to vary with regard to acreage, square footage and the requirements of a "kennel" in various jurisdictions. In Beatrice v. Goodenkauf 219 Neb. 756, 366 N.W.2d 411, at 413 (Neb. 1985), appellants were boarding 120 dogs on their 6.9 acres of real estate at the time of trial. The Supreme Court of Nebraska stated that We cannot see how 120 or more dogs and an equal number of doghouses on a small piece of real estate could be anything but a principal use. Whether a use is customary is not to be determined merely by a mathematical count; but numbers are a factor which must be considered. The court further found that "clearly, the keeping of a few dogs on a farm is an accessory use and is permitted, but caring for 120 dogs on a small piece of land is not a subordinate use or a recognized incidental use of land," Id. at 413. In answering the question "how much is too much ?" overwhelming numbers seem obvious and there does seem to be some consensus as to the number of dogs permitted per household before becoming detrimental to public health, safety, and general welfare. Urban Fairfax County allows the keeping of commonly accepted pets as an accessory use on any lot for personal use and enjoyment. More specifically, the keeping of up to 7 dogs as an accessory use is permitted in accordance with specific square footage requirements as noted in the table below: Number of Dos Minimum Lot Size 1 to 2 No requirement 3 to 4 12,500 square feet 5 to 6 20,000 square feet 7 or more 25,000 square feet plus 5,000 square feet for each additional dog above 7 Note that the lot size, rather than the zoning designation, is a key factor in considering the number of dogs permitted as an accessory use in Fairfax County. Even local jurisdictions vary in their conditions permitting a certain number of dogs as an accessory use. Fauquier County Zoning Ordinance states that "[U]p to four dogs may be kept as pets on any property. On properties 2.0 acres or larger in size, up to 12 dogs may be kept as pets provided the dogs are penned or restrained so as not to roam within 40 feet of the property line." (www. faquiercounty.gov/ documents / departments / commdev /pdf /livestockandpets_Bro chure.pdf, August 2, 2007). In Henrico County, "[O]nly three adult pets per residence. A conditional use permit may be obtained to allow a private kennel in residential districts. A private kennel is defined as a premises used by the property occupants for the care of four or more dogs, cats, pets, fowl or domestic animals that are at least four months old for non commercial purposes." (www.co .henrico.va.us /maint /pet.html, August 2, 2007). Between the counties and the courts, four to five dogs seem to be the general accepted limit permitted as accessory use in residential areas without getting into permit, license or kennel issues. One case sheds particular light on the tipping point as to when the number of dogs moves from simple pet to kennel keeping as well as the confusion of maintaining a "kennel" in a residential area. In People v. Strobridge, 127 Mich. App. 705, 339 N.W.2d 531 (1983), the defendant appealed his conviction of keeping more than three dogs on his premises without a kennel license in violation of the Grandville Ordinance. A visit by an animal control officer found six dogs at the defendant's residence. The defendant did not have a kennel license and the local ordinance provided that no one could keep more than three dogs on any property without such a license. Moreover, the defendant apparently could not have obtained a kennel license anyhow, as the same ordinance did not allow kennel licenses for any area zoned residential. However, the appeals court remanded the case to the lower courts for the purpose of making findings of fact and conclusions of law as to whether the defendant had established a valid nonconforming use. According to the appeals court, Although defendant must obtain a kennel license under Sec. 21 of the regulatory ordinance, he cannot be denied a license under Sec. 23 of that ordinance because his premises are located in an area zoned residential if he had a valid nonconforming use prior to the adoption of the zoning ordinance. Moreover, if defendant had a valid prior nonconforming use and his otherwise properly submitted application for a kennel license was wrongfully denied because of the residential zoning, he cannot be convicted for failing to obtain a license under Sec. 21 of the regulatory ordinance. Strobridge, supra. While the question at hand concerns the number of dogs beyond accessory use, it might be noted that valid nonconforming use has been accepted as a reasonable argument by defendants for keeping a large number of dogs on a residential lot of at least 2.0 acres, more or less. In Fairfax and Fauquier Ordinances, as well as Beatrice v. Goodenkauf, it has been made plain that lot or premises size matters in terms of the number of dogs accepted as an accessory use. As stated in Downing v. Cook, 69 Ohio St.2d 149, at 151 "the regulation of dogs does not exceed the legitimate range of police power. It cannot be disputed that too many dogs in too small a space may produce noise, odor and other conditions adverse to the best of the community as a whole." Further, in the same appeal, the Supreme Court of Ohio found that Section 905.04(H)(1) is not invalidated by the fact that appellant could conceivably keep four dogs on her premises without creating undue noise, odor, filth, danger or other conditions traditionally characterized as nuisance conditions. Nor is the appellant precluded by the ordinance from engaging in her hobby of breeding and showing dogs, but only from keeping more than three adult dogs in her home. Id. at 152 (italics mine). From the Fairfax and Fauquier Ordinances as well as the named court cases, a pattern emerges indicating that the keeping of five or more dogs is not an accessory use unless it is on lots larger than 2.0 acres or premises of at least 20,000 square feet. Moreover, courts seem to agree that keeping more than four dogs on most premises requires a kennel license unless the use is grandfathered by the locality or a valid nonconforming use can or has been established. In the matter of the "foster parent" to the 5 to 8 dogs with 8 cages in her backyard, it seems clear that at the very least the number of dogs in her care does not qualify as commonly accepted accessory use for a residential zoning district. Some Virginia jurisdictions have established standards for accepting 5 or more dogs as accessory use based on acreage and square footage in areas primarily zoned residential. However, courts seem to accept that if a person is keeping 4 or more dogs on the premises, a kennel license (professional or otherwise) or special permit, is an accepted use of police power in regulating dogs by localities. Even though the dogs are residing temporarily on the premises and can be considered "pets" for accessory use purposes, there are still too many in too small a space, with the results being detrimental to public health, safety, and general welfare. Please call me if you have any questions or need any further information.