New Haven Independent

So it came as a bolt from the blue when The Connecticut Supreme Court last month held that, in towns or cities that do not have an ordinance specifically designating the number of dogs a family may own, dogs and other household pets are still a part of a town’s zoning laws, even if never mentioned. No longer is a dog a dog. “Dogs,” says the high court, may be “an accessory use” to one’s home and property, much like a couple of sheds in the back yard.
The high court’s peculiar ruling came to light when it overturned a lower court ruling in favor of a Killingworth family. Nicole Graff said that before she and her husband built their home, she checked all the Killingworth zoning and other regulations regarding their 9 acre property, which is designated a rural area. (Click here to read the decision.)
“Before we purchased our land, I read every zoning regulation pertaining to animals to ensure myself that there was no limit on the number of dogs,” Mrs. Graff said in a letter to the editor in the New Haven Register. “There were no regulations regarding dogs. I phoned the zoning enforcement officer to get further clarification. I asked in every way I could think of whether there was a dog limit or an acreage requirement. The zoning officer told me there was not. “What else can a citizen do? The zoning regulation in question simply did not exist.”
So the couple built their home and brought their 14 dogs to Killingworth. Then the neighbors protested about barking and roaming dogs. Mrs. Graff had four dogs surgically debarked. That gesture apparently did not help. Soon after, the zoning commission met and issued a cease and desist order.
“State law requires than any proposed zoning regulation be published so the citizens can review it, and that public meetings be held to discuss it,” Mrs. Graff wrote. “The new regulation, if passed, cannot then be applied retroactively. Killingworth passed its new regulation secretly and then applied it retroactively to me.”
She sued in Superior Court in 2001. And she won. Superior Court Judge John C. Driscoll found in a 34-page decision that the Killingworth Zoning Commission enacted a “substantive change” in the accessory use regulations, and did so without notice or a public hearing in violation of Connecticut law. But the high court disagreed.
Timothy Hollister, an expert on land use at Shipman & Goodwin in Hartford, represented Mrs. Graff. In an interview he said “it was clear this was a town that simply did not want to deal through its zoning code with how many turtles, hamsters, gerbils, goldfish or dogs you can have as household pets. It limited barnyard animals to certain numbers, but put no limit on household pets.”
The zoning regulation reads: “The keeping of animals other than household pets shall be permitted subject to the following conditions and limitation.” Then followed a specific list that included 100 chickens or rabbits, three pigs and up to two dozen burros, llamas, sheep, goats, horses or cattle. All these animals were permitted in a rural district.
The zoning regulations “expressly excluded household pets,” Hollister said. “We thought it was pretty clear.”
Now the court examined another zoning rule, the one the town relied on. Killingworth defines “accessory uses” as “any use, which is attendant, subordinate and customarily incidental to the principal use on the same lot.” After Graff moved in, the town’s zoning enforcement officer counted up how many families had how many dogs (a figure derived from counting those dogs whose owners actually licensed them) and derived the number four. Mrs. Graff was told to remove 10 dogs.
Justice David M. Borden implied the limit of four dogs was in plain view. All Mrs. Graff needed to do before purchasing the land was her legal homework. What she had missed, wrote Justice Borden, was “guidance ” from the Connecticut Supreme Court as well as guidance from Connecticut’s “sister states,” like Massachusetts, which had examined the issue. Or she might have consulted “legal treatises” where there are references to dogs as accessory uses.
And what would she have learned? Justice Borden concedes not much. “These sources make it sufficiently clear that it is not anticipated that accessory use provisions will enumerate every conceivable activity that is a permissible accessory use, and that household pets, including dogs, routinely have been construed as potentially limited by accessory use regulations.” Potentially.
Confused are you? It gets better. Justice Borden observed that it would be impractical for a zoning board to list all the activities “meant to encompass all possible accessory uses to a residential property within a community.” Specifics that would help a citizen conform to the law are not important. Nor are definitions. In its wisdom the high court concludes: “Some lack of specificity is required in order to provide the flexibility necessary for future (Zoning) board interpretation.” Or as Hollister, Mrs. Graff’s attorney, put it: “When the town says the limit was four, what they were saying was that at the time you, Nicole Graff, first moved to Killingworth the limit was four, it’s just that you had no way to know that.”
Fortunately, the predominant method of regulating dogs in Connecticut’s 169 towns is by town ordinance and not by zoning regulations, Hollister says. Typically families know how many dogs they may keep. That’s a lot fairer. For those who move to towns whose zoning laws govern dogs, remember this: The state’s highest court now says it is legal for zoning officials to use a vague and ill-defined system and to retroactively enforce it. Mrs. Graff now lives in Woodstock, Vermont, with her husband and 14 dogs.