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- by Erika Eckley
October 5, 2012
Zoning ordinances help ensure appropriate location and use of buildings, structures, and land for purposes of trade, industry, residences, or other purposes. Zoning restrictions cannot be unreasonable and should be utilized for the community’s welfare. If aggrieved by an ordinance or the application of one, landowners may petition for review through the judicial process. In the following case, the petitioners were found to be in violation of an ordinance, but they believed it was not being interpreted correctly and sought judicial review.
It started when the petitioners were interested in purchasing some agriculturally-zoned property on which they were going to construct a greyhound kennel. They requested a zoning variance to build the kennel with only a 200 foot setback rather than the required 500 feet. The county zoning administrator sought an opinion from the county attorney on whether a greyhound kennel for “greyhounds raised for racing at the dog track” was a permitted use in the A-1 zoned area. The ordinance to be interpreted provided that dog kennels are allowed in A-1, but kennels could not “harbor, breed, train, buy, sell, exchange, or offer for sale any animal to be used solely for attack purposes nor any animal not normally associated with domestic enjoyment.” Specific exotic or dangerous animals to be excluded were also listed within the county zoning ordinance.
An attorney from the county sent a letter to the administrator in response to the request stating that the attorney did not believe the proposed kennel would be a permitted use under the ordinance. The petitioners withdrew their request for a variance but purchased the property, built a kennel, and began raising and selling greyhounds. They complied with the setback requirements on three sides, but were only able to set the kennel back 200 feet from their neighbors on one side of the property. Neighbors complained about the barking and the zoning administrator sent notice that the petitioners were in violation of the ordinance based on the interpretation of the ordinance. Petitioners appealed to the board of adjustment.
After a hearing, the board voted unanimously to uphold the administrator’s decision that the petitioners were in violation of the zoning ordinance. The petitioners filed a writ of certiorari to the district court for a judge to review and rule on the matter. The district court judge determined the board’s decision was based on substantial evidence and upheld the decision.
The petitioners appealed. On appeal they contended that the board’s action contradicted the language of the ordinance permitting kennels. The ordinance allows kennels on A-1 zoned property except when the kennels either house animals used for attack purposes or are for animals not normally associated with domestic enjoyment. The petitioners argued this did not apply to them because greyhounds have long been domesticated pets and Iowa’s statutory requirement that all dog tracks maintain a racing dog adoption program demonstrates Iowa’s public policy view that greyhounds are normally associated with domestic enjoyment.
In reviewing the evidence, the appellate court determined that the county attorney’s interpretation of the ordinance was wrong. The attorney determined a commercial kennel for dogs to be bred and sold was not a permitted use within zone A-1 for any reason, which was simply wrong. The zoning administrator relied on the attorney’s interpretation in determining the petitioners were in violation of the ordinance. The administrator’s position was upheld on review by the board and the district court.
Zoning ordinances are to be construed strictly by courts to favor the free use of property. In following this principle of statutory interpretation, the court found significant that the ordinance listed only “pit bulls” as a breed of dog “not normally associated with domestic enjoyment.” The court found nothing within the ordinance suggesting greyhounds would fit within the category of animal not normally associated with domestic enjoyment. Moreover, because Iowa statutes require an adoption program for racing greyhounds evidences a favorable view of the breed, the court held that greyhounds do not fit within the disallowed category. The court concluded the petitioners’ kennel fell within a permitted principal use of the property and reversed the district court’s opinion. The petitioners were allowed to keep the greyhound kennel on their property. Zenner v. Dubuque County Zoning Bd. of Adjustment, No. 2-636/11-1853, 2012 Iowa App. LEXIS 827 (Iowa Ct. App. Oct. 3, 2012).