The Connecticut Court of Appeals upheld the denial of a special use permit by the West Hartford Plan and Zoning Commission forcing the Plaintiff to down-size from 22 Shih Tzu pet dogs to three. Since the zoning ordinance requires residents owning more than two dogs to apply for a special use permit, and Kilburn owned 22 dogs, she applied for the special use permit in 2004. Her permit application was conditionally approved – provided she reduce the number of dogs from 22 to 3 over a period of two years. The Commission found, that although the dogs were well cared for, 22 dogs maintained in a residence is neither appropriate nor compatible with the residential neighborhood. In addition, the Commission noted that the Plaintiff was in violation of the zoning ordinance which allows “kennels” (defined as the keeping of more than three dogs over the age of six months) in residential districts subject to the issuance of a building or zoning permit and a special use permit. She did not appeal the conditional permit.
Over the next two years, the Plaintiff did not make an effort to reduce the number of pet Shih Tzus on her premises, but she did file an application in 2006 for a special use permit requesting that she be able to keep all of her dogs, and she proposed that as the dogs passed away she would not replace them. She indicated that she owned the dogs for the last 12 years, that her property had 3,521 square feet of living area, and that she lets the dogs out in small groups for short periods of time and not at all after 8pm. She told the Commission that she could not separate the dogs because she did not believe they would survive, and that due to personal circumstances, she had been unable to look for someplace else to live with the dogs. Following a public hearing, the Commission denied the request, finding that the keeping of 22 dogs is not appropriate nor in harmony with the residential neighborhood, and that they had provided a reasonable amount of time to reduce the number of dogs.
The Superior Court dismissed the Plaintiff’s appeal, noting that the 2006 application was an application to amend or modify the 2004 permit and not a new application for a special permit. The Court also found that the Commission’s decision was supported by substantial evidence and that although nothing in the ordinance specifically allowed the Commission to consider the Plaintiff’s noncompliance with the 2004 conditions, the Commission could, nonetheless, consider this. The Court noted, however, that this was an issue of first impression in Connecticut.
The appeals court agreed, concluding that since the Plaintiff never contested the provisions attached to the 2004 permit, she is precluded from doing so now as too much time has elapsed. In essence, said the Court, the Plaintiff was now looking to have the 2004 conditions removed. The Court explained that the only way in which the Commission could have changed the 2004 conditions in 2006 is if the Plaintiff was now in conformance with the zoning ordinance and the use was in harmony with the neighborhood (as required by the criteria for a special use permit). The Court said that the Commission’s 2006 denial was not based on the Plaintiff’s failure to comply with the 2004 conditions, but rather by the issues involved with one residence housing 22 dogs.
Kilburn v. Plan & Zoning Commission of the Town of West Hartford 2009 WL (4/14/2009).
The opinion can be accessed at: http://www.jud.state.ct.us/EXTERNAL/supapp/Cases/AROap/AP113/113ap221.pdf
Special thanks to Dwight Merriam, Esq., FAICP of Robinson & Cole in Hartford, CT for forwarding this case. Read his commentary at: http://imlablog.wordpress.com/2009/04/13/its-a-dogs-life
