Proposal for a Variance to Operate a Dog Kennel in Residential Neighborhood

[dhopeman]

My question involves the "right to quiet enjoyment" law in the state of MA. Hi I am a landowner in MA and I have a neighbor who has filed with our town for a variance to operate a dog kennel in her home with up to 6 boarding dogs a night. Our entire neighborhood has written letters to the planning board expressing our disapproval of granting them a variance, but the board seems to think it is not such a bad thing to have a dog kennel in my neighborhood. It has not been approved yet and we have one more opportunity to argue our case next month. I am trying to understand if there is a legal precedent about using the example of the legal "right to quiet enjoyment" to mount an argument. I.E. If I purchase property in a residential neighborhood with no dog kennel, is the town violating my right to quiet enjoyment by allowing a dog kennel to be approved because when I purchased there was no dog kennel and no noise? The increased noise would devalue our property and infringe on this right and I'm trying to understand the best way to frame the debate. I would like to know if you can proactively use this law to stop someone from making noise. I know you can re-actively use it if you have a loud neighbor. But what if your neighbor isn't loud yet, but will be in the future? Any help would be greatly appreciated.

[Mr. Knowitall]

You and your neighbors should pool your resources and hire a real estate lawyer who handles zoning matters to advocate for you. Here are some cases on zoning variances.

[VictorD]

I am not a lawyer, but I live in MA and have some exposure to zoning issues.

If someone applies for a variance, it means that they want to build something that is not allowed under the current zoning, or they want to use their property in a way that is not allowed under the zoning by-law or ordinance. Is this the case here? If so, the case will be decided by the city or town’s Board of Appeals (sometimes known as the Zoning Board of Appeals, or ZBA). The town’s planning board should not be involved.

While each city and town in MA has its own ZBA, the rules concerning when a variance can be granted are spelled out in state law (Chapter 40A, Section 10). One condition that might be relevant here:

“Except where local ordinances or by-laws shall expressly permit variances for use, no variance may authorize a use or activity not otherwise permitted in the district in which the land or structure is located;”

This implies that if a zoning district is zoned for residential use only, then it is not legal to use the mechanism of a variance to establish a commercial use (like a dog kennel) in that district.

There is also a phrase in Chapter 40A, Sect 10 saying that the variance must not cause a “substantial detriment to the public good”. It would appear that this condition would not be met in this case.

So if the neighbor really is asking for a variance, these are the types of arguments that you might make at the ZBA hearing. If the variance is granted anyway, then the abutters have the right to hire a lawyer and appeal the decision in Superior Court and beyond. The previous post by Mr. KIA shows some of those cases.