1 STATE OF VERMONT

ENVIRONMENTAL COURT

} In re: Kim Wong Notices of Violation } Docket Nos. 1 69-7-06 Vtec and 293-12-06 Vtec (Appeals of Wong) } }
Decision and Order on Appellant’s Motion for Summar y Judgment In Docket No. 169-7-06 Vtec, Appellant Kim Wong app ealed from a decision of the Zoning Board of Adjustment (ZBA) of the Village of Essex Junction upholding a Notice of Violation for raising livestock in a residential di strict, contrary to §725 of the Village of Essex Junction Land Development Code. In Docket No . 293-12-06 Vtec, Appellant appealed from a later decision of the ZBA upholdinga Notice of Violation for operating an animal boarding facility. The two appeals have been consolidated. Appellant is represented by Jason Ruwet, Esq.; the Village of Es sex Junction is represented by David Barra, Esq. Appellant has moved for summary judgme nt. The following facts are undisputed unless otherwise noted.

Appellant keeps twenty homing pigeons in an accesso ry building (storage shed) attached to the rear of his attached residential ga rage at his property at 25 Aspen Drive, in the R-1 Residential zoning district. The property is 100' x 150' in area and contains his house, garage, driveway and exterior deck, as well as the storage shed. Appellant applied for and received a zoning permit in early 2006 to c onstruct the 8' x 15' accessory building as a “storage shed;” the application listed as the proposed storage: “lawnmower, lawn furniture, snow[bl]ower, sc[r]ap stuff” and did notmention the housing of pigeons or the keeping of any animals.2

On April 19, 2006 the Zoning Administrator issued a Notice of Violation to Appellant for violation of §725 of the Village’s La nd Development Code, which prohibits the “raising, keeping, or harboring of livestock, w ild animals or other domesticated farm animals,” whether “for personal use or commercial pu rposes,” except in the Planned Exposition and Planned Agricultural zoning district s, and which also requires a minimum parcel size of ten acres for such a use. Appellanttimely appealed to the ZBA, which upheld the Zoning Administrator’s decision; Appellant’s ap peal of that decision is Docket No. 169-
7-06 Vtec. After the motion for summary judgment had been file d in Docket No. 169-7-06 Vtec, the Village issued a second Notice of Violation to Appellant for operating an animal boarding facility in a district in which it is not an allowed use. In addition, the Notice of Violation cited the use as a change of use from the storage for which the shed’s zoning permit was issued. Appellant timely appealed the s econd Notice of Violation to the ZBA, which upheld the Zoning Administrator’s decision; A ppellant’s appeal of that decision is
Docket No. 293-12-06 Vtec. No enforcement action h as been filed based on either Notice
of Violation. The general rules of statutory construction apply w hen interpreting zoning ordinances. In re Casella Waste Management, 2003 VT 49, ¶6. The court must “construe words according to their plain and ordinary meaning, giving effect to the whole and every part of the ordinance,” In re Stowe Club Highlands , 164 Vt. 272, 279–80 (1995) (citation omitted), so that no language is surplusage, In re Dunnett, 172 Vt. 196, 199 (2001), and so that the construction does not produce an absurd re sult. See, e.g. , Willard v. Parsons Hill Partnership , 2005 VT 69, ¶21, 178 Vt. 300, 308 (2005). Section 725 of the Land Development Code is applicable to the “raising, keeping, or harboring” of three categories of animals: (1) live stock, (2) other domesticated farm animals, and (3) wild animals. The Land Developmen t Code specifically defines “livestock1 Available at: http://www.bartleby.com/61/23/D0332 300.html

3 and other domesticated farm animals” as those anima ls that are “typically associated with farm or agricultural practices.” §201(C)(102). Th e definition specifies chickens, ducks, geese and ostriches as birds included in this categ ory. Neither party asserts that racing pigeons are typically associated with farm or agric ultural practices. Therefore, although they may qualify as domesticated animals, racing pi geons do not fall within the definition
of “livestockand other domesticated farm animals.” (Emphasis added.) Nor do racing pigeons fall within the definition of the term “wild animals,” which is also specifically defined in the Land Developmen t Code as “any non[-]domesticated animals.” §201(C)(196). Neither party asserts tha t racing pigeons fall outside the category of “domesticated animals” as that term is commonly used, §201(A)(4), to mean an animal
that has been trained “to live in a human environme nt and be of use to humans.” American Heritage Dictionary of the English Languag e 1 (4 thed. 2000). Additionally, the state statutory definition, §201(A)(3), of the term “domestic animal” includes psittacine birds, 6 VSA §1151(2), further defined by the rules of the State of Vermont Department of Agriculture, Food and Markets to include birds “com monly sold in pet shops . . . including . . . pigeons[.]” Rules Governing the Importation of Domestic Animals §I(58). As the twenty pigeons raised and kept by Appellant are kept for racing purposes, that is, are trained to be of use to humans, they f all within the category of domesticated animals. They are not wild animals, nor are they li vestock or other domesticated farm animals; therefore they are not subject to regulati on under §725 of the Land Development Code. In Docket No. 169-7-06 Vtec, summary judgmentmust be granted to Appellant, vacating the Notice of Violation and concluding tha t appeal.

In Docket No. 293-12-06 Vtec the Village argues tha t, even if Appellant’s pigeons do4

not fall within the regulatory ambit of §725, the s hed’s use for keeping five or more animals makes it an animal boarding facility, also not an a llowed use in the R-1 district. Further, the Village argues that this use is beyond the scop e of Appellant’s original application and the resulting permit for the shed as a storage shed

. Two definitions in the Land Development Code are pe rtinent to this analysis: the definition of “animal boarding facility or kennel,” and the definition of “animal shelter.” Section 201(C)(12) defines the use category of “ani mal boarding facility or kennel”as any “land, structure, or facility designed and used for the temporary storage or housing of five (5) or more domesticated animals at any time,” exclu sive of animals on a working farm. Section 201 (C)(14) defines the use category of “an imal shelter” as “any accessory structure or property which is used for housing or sheltering four (4) or fewer common household pets over three (3) months of age, outside of the p rincipal permitted structure.” Pursuant to the use table at §615, animal shelters are allow ed as a permitted use in most zoning districts, including the R-1 zoning district. By c ontrast, animal boarding facilities are allowed only in the Planned Exhibition zoning distr ict (as a conditional use) and in the Planned Agriculture zoning district (as a permitted use). As the accessory building houses more than four pig eons, even if the pigeons qualify as “common household pets” the storage building doe s not qualify as a permitted-use animal shelter under the definition in §201 (C)(14)

. The use category of “animal boarding facility” does not require that the facility be operated as a business. Rather, the essential eleme nts are that the land, structure or facility be “designed and used” for the purpose of the “temp orary storage or housing” of at least
five domesticated animals. Appellant does not contest that the shed is designe d and used for the purpose of housing twenty racing pigeons, but argues that the word “temporary” should be interpreted to modify both the word “storage” and the word “housing.” That is, Appellant2 The Court recognizes that people may keep smaller animals and birds as pets

entirely within their houses, and may easily exceed five or more small animals such as some combination of cats, parakeets, gerbils, guine a pigs and the like. However, because the definition of “animal boarding facility” requir es the facility, structure or land to be “designed” as well as “used” for the purpose of hou sing animals, we must note that this decision specifically does not address whether or a t what point the keeping of any particular number of household pets or domestic ani mals (other than those covered by §725) within a residence would or would not be allo wed as an accessory use to the residential use.

5 argues that the use category of “animal boarding fa cility or kennel” only covers the temporary housing or temporary storage of animals, and that it does not cover the permanent housing of animals. This interpretation, however, would lead to an absurd result, as, for example, a breeding kennel of ten do gs kept permanently on a property, where only the offspring are sold, would not be cov ered, although a boarding kennel where only five dogs were housed while their owners were away would be covered. The purpose of restricting this use category only to no n-residential or agricultural neighborhoods evidently recognizes the potential fo r adverse effects resulting from the noise or odor that can result from the keeping of m ore than five domestic animals, regardless of whether any individual animals are onthe premises on a temporary or a permanent basis. By its terms the definition does not distinguish by the size or type of the animals involved, but rather by whether the land, s tructure or facility is “designed and
used” to house that number 2 of animals. Accordingly, as some portion of Appellant’s shed is designed and used to house the twenty racing pigeons, it falls within the use cate gory of “animal boarding facility,” which is not an allowed use in the R-1 zoning district. Moreover, regardless of whether it is an “animal boarding facility,” as Appellant only receiv ed a zoning permit to construct a storage shed for the storage of household items, an d not live animals, the use of the shed6

to house the racing pigeons also is beyond the scop e of the use authorized by that permit. Thus, summary judgment must be granted to the Villa ge, upholding the second Notice of Violation, in that the use of an accessor y building to keep more than four pigeons
is not allowed within the definition of “animal she lter,” and such a use is beyond the scope of the permit issued for the construction of that b uilding as a storage building, and falls within the use category of “animal boarding facilit y,” which is not an allowed use in the
district.

Accordingly, based on the foregoing, it is hereby O RDERED and ADJUDGED that Appellants’ Motion for Summary Judgment is GRANTED regarding Docket No. 169-7-06 Vtec; the Notice of Violation that is the subject o f that appeal is hereby vacated. Appellants’ Motion for Summary Judgment is DENIED i n Docket No. 293-12-06 Vtec, and summary judgment is hereby GRANTED to the Village, upholding the Notice of Violation that is the subject of that appeal. This decision concludes both appeals.

Done at Berlin, Vermont, this 12 thday of March, 2007.

_________________________________________________ Merideth Wright Environmental Judge