Graff v. Zoning Board of Appeals of the Town of Killingworth, Supreme Court of Connecticut (2006)

Facts: The plaintiff owns a single family home on a 9 acre parcel of land in the town's rural residential district. In 2001, neighbors complained to officials about the number of dogs on the premises, as well and the resultant noise due to barking at various hours of the day and night. In response, the plaintiff took steps to reduce the noise, including surgically debarking 4 of her dogs; however, neighbors found these steps to be ineffective. The town zoning enforcement officer visited the property and found 14 dogs on the premises. After discussing the town's multiple-dog-license-owning households (195 residences with 2 dogs, 43 with 3 dogs, 7 with 4 dogs 3 residences with 5 dogs, 1 with 7 dogs and the plaintiff's, with 14 dogs), the Killingworth planning and zoning commission passed a resolution on April 17, 2001 stating that the keeping of four dogs or less in any household constituted a permissible accessory use of residential property. In addition, any homeowner keeping more than four dogs would be in violation of the town regulations. Ten days later, the zoning enforcement officer issued a cease and desist order to the plaintiff ordering her to remove all dogs in excess of four. The plaintiff appealed the order to the board, which rejected her appeal.

The town of Killingworth town regulations are permissive, meaning those matters not specifically permitted are prohibited (in contrast with prohibitive zoning ordinances, where all uses are allowed except those expressly prohibited). This is true of the majority of the municipalities in Connecticut.

Procedure: The trial court reversed the board's decision to uphold the cease and desist order, reasoning that:
  1. household pets are not an accessory use under town regulations and thus cannot be regulated
  2. setting an enforceable limit on the number of dogs kept in each residence is a substantive change to zoning regulations and as such, requires prior notice and public hearing

Issue: Despite a lack of explicit language pertaining to household pets in the accessory use section of the regulations, is the keeping of household pets an "accessory use" of land, and therefore subject to regulation by the zoning board?

Holding: The court reversed the trial court decision, and upheld the cease and desist order.

Rationale: Household pets are an accessory use, and thus subject to regulation. In particular,
  • A guiding principle in reading zoning regulations is that "[t]he regulations must be intrepreted so as to reconcile their provisions and make them operative so far as possible... When more than one construction is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results." If household pets are not an accessory use as the plaintiff claims, then they are not permitted at all given the permissive structure of the town regulations. But this would be unreasonable, and therefore the more appropriate interpretation is that household pets are an accessory use.
  • The accessory use definition ("any use, which is attendant, subordinate and customarily incidental to the principal use on the same lot") is not unconstitutionally vague because case law and other legal treatises provide guidance in this matter, and deeming household pets as an accessory use is typical.

Additional Notes: There's no real response to the trial court's finding that regarding prior notice and public hearing on the regulation. At the end, another judge appends a paragraph which concludes, "Although the law dictates that, despite these actions, the plaintiff nonetheless may be compelled to relinquish the company of ten of her fourteen canine companions, it would seem to be a wiser and more compassionate course of action for Killingworth zoning authorities to provide a clearer indication of limits they intend to enforce with respect to household pets."