Fed. District Court Finds Accessory Use Ordinance Unconstitutionally Vague As Applied to Breeding of Wild Cats

The city attempted to prohibit Alfred Boyajian from raising and breeding wild cats on his residential property, as he had been doing as a hobby since 1977. Boyajian had obtained wild animal licenses for his cats under state law, which classified them as “inherently non-dangerous wild animals.” He was not permitted to keep them as pets, but although he only sold two to three cats per year and had a separate, primary occupation as the owner of a brass manufacturing company, the state licenses qualified his hobby breeding as a “wholesale wild animal business.”

When Boyajian moved to a new home in 1994, he obtained zoning accessory use approval of his site plan and a building permit for eight foot high perimeter and enclosure fencing. He did not obtain a local business license, as it was the city’s understanding that he was not “carrying on a business” under the local ordinance. In 2006, however, several neighbors filed complaints with the city following wild cat escapes. Boyajian was subsequently cited for operating a business without a city business license, and for commercial use of an accessory structure in a residential zone. Boyajian responded to the city’s change in policy by applying for a business license in 2007, but this was denied on the basis that wild cat breeding was not a permitted use in residential districts. He then filed suit in federal court, alleging due process claims under 42 U.S.C. § 1983. Specifically, he claimed that the city’s business license and accessory structure ordinances were impermissibly vague on their face and as applied. (He did not mount a challenge to the underlying permit denial or claim that it operated a taking.)

Regarding the business license ordinance, Boyajian did not argue that his operation was not a “business,” since he had operated a “wild animal business” pursuant to state law since 1983. Rather, he attacked the vagueness of the ordinance’s exemption for “casual or isolated” businesses. The court held that the provision was not vague on its face, as Boyajian could not show that it was constitutional “under ‘no set of circumstances,’” but agreed that the term “casual or isolated,” which was not defined in the ordinance, was vague as applied. As the court explained, “a person of ordinary intelligence would not know what ‘casual or isolated’ means in this context. [The city employee] who initiated the Plaintiff’s investigation, testified that she did not have a clear understanding about what the phrase meant, and could encompass a business that was ‘not constant,’ ‘once a month,’ ‘twice a year,’ or ‘every so often.’” Without any clear definition or guidance from the ordinance, the term did not provide fair notice to Boyajian, and led to arbitrary and discriminatory enforcement action against him. As the court pointed out, the city official who issued the citation did so purely at the city council’s direction and without any personal knowledge of whether wild cats were sold on-premises, whether there were any business signs, or whether there was any other evidence of business activity taking place. When asked whether five dogs on a property would constitute a business, the official responded that it “might,” but he was unable to articulate any factors that would go into such a determination. In the court’s view, this lack of clear standards gave the city unbridled discretion, as illustrated by its choice to unilaterally change its interpretation after 32 years.

The court also rejected the facial challenge to the ordinance’s accessory use provisions, noting that the term “of a commercial nature” would clearly prohibit a residential property owner from operating a car repair business or restaurant. Yet the court agreed, again, that the provision was vague as applied. The court cited testimony from the city’s chief of zoning, who said that having an occasional and customary commercial use, such as a garage sale once or twice a year,  would not violate the ordinance, but that having more than two garage sales could be problematic and would have to be assessed on a case by case basis. She also said that raising a litter of domestic kittens for personal use and selling five of them would be a customary and incidental accessory use in a residential area, although the evidence showed that Boyajian’s cats produced at most two or three kittens per year. The court reiterated that the provision, as construed, vested too much discretion in the city and did not provide any objective standards which ordinary residents could review to know whether their conduct would be permissible. “If the City is able to hold this opinion as to one set of cats,” the court noted, but “not to the Plaintiff’s—without an intermittent change in the ordinance language—it is clear arbitrary enforcement can and has occurred through the interpretation of [the term] ‘commercial nature.’”

Based on its finding that the business license and accessory use ordinances were unconstitutionally vague as applied to Boyajian, the court issued a permanent injunction in his favor.

Boyajian v. City of Atlanta, 2011 U.S. Dist. LEXIS 35259 (N.D.Ga. Mar. 31, 2011)

The opinion can be accessed at: http://www.courthousenews.com/2011/05/03/Wild%20Cats.pdf

See also, Julia Filip, City Can’t Crack Down on Wildcat Breeder, Courthouse News Service, May 3, 2011, ttp://www.courthousenews.com/2011/05/03/36298.htm   

Special thanks to Amy Lavine, Esq. of the Government Law Center for this abstract.