Animal-Related Ordinances – Out of Sight and Out of Mind?

When was the last time you checked your animal-related ordinances to confirm that they were keeping up with, and meeting the needs of, your ever-changing community? These ordinances are easy to overlook until you need them and then, unfortunately, the tools you need may not be there. Maine law provides broad authority to enact and enforce animal-related ordinances. 

We see in our state, municipalities that include within their borders urban, residential, industrial, rural, and agricultural areas. We also see municipalities entering into contract zones or approving conditional zoning ordinances as appropriate when faced with development projects. Our rapidly changing communities need animal-related ordinances that will keep up with the new realities. For example, the person who has for many years kept horses on his or her property that may have escaped from their fenced in area from time to time, finds that his or her property is now near a road with increased traffic—an escaped horse puts both the drivers of automobiles and the horses at risk. Or, how about the person that keeps their dogs tied outside all the time. While every municipality should consider having an ordinance that puts some parameters around this, especially in the heat of the summer and the frigid winters, what do you do about the barking? Maybe you rely on your noise ordinance, but will it be enough? 

New realities include how animals are viewed, especially pets. The pet business is growing and raking in billions of dollars, which evidences the evolving view of animals kept in the household. You may recall the outrage generated when the Town of Scarborough was discussing enacting ordinances that would ban dogs from certain of its beaches during certain times. Even though this was in response to an incident related to a bird and the IF&W threatened to fine the Town, members of the community demanded that the Town act proportionately. The Town created an Animal Control Advisory Committee who generated a report attempting to balance the environmental issues with the rights and needs of dog owners. 

Also for consideration: Do you allow residents to keep a small number of chickens, even in urban areas, to provide eggs to the family? Does your ordinance contain reasonable requirements for dog day care and boarding facilities, a service used by so many people? 

Finally and importantly, are your animal-related ordinances humane and actually help you get the results you wish to achieve? Do they impose the punishment on the right party—the person violating the ordinance as opposed to the animals he or she is supposed to care for? Do you have the tools you need?

Superior Court Clarifies Grandfathered Status of Non-conforming Structures

Maine’s Superior Court recently issued a decision that provides clarification on the grandfathered status of non-conforming structures and, more specifically, the circumstances under which that status may be lost. 

At issue in Plourde v. Town of Casco was the non-conforming status of a dock. In 2005, the town had issued a building permit for a dock to a family that owned property in a subdivision. The permit identified the family’s lot as the relevant lot associated with the permit. In 2016, the plaintiffs, who also owned property in the subdivision, purchased the dock from the family. The family then sold their lot separately to a new owner. After the new owner filed a complaint with the town regarding the dock, the code enforcement officer (CEO) conducted an inspection. Unable to determine who owned the dock, the CEO issued a notice of violation ordering the removal of the dock and invalidating its permit. Among other violations, the CEO cited the width of the dock and fact that the permit for the dock had been issued to the prior owner of the lot. After receiving notice of the violation, the plaintiffs filed an application seeking to construct a new temporary dock in the same location as the former dock. Ultimately, the town’s Zoning Board of Appeals (ZBA) denied the building permit, finding that the plaintiffs’ application was for a new dock and not a grandfathered replacement dock, and that the dock was located in a beach area in violation of the town’s ordinance. 

On appeal, the plaintiffs argued that it is structures that are grandfathered, not owners, and so the dock and its location were grandfathered regardless of any ownership interest in the lot formerly associated with the dock. The Superior Court disagreed, however, pointing out that the rights conferred by a building permit attach to the land. Here, the 2005 building permit made the dock appurtenant to a specific lot. The court explained that although a change in ownership in the lot would not affect the non-conforming status of any appurtenant structure, that status may not be separated from the lot and sold in a transaction independent from a sale of the lot. Consequently, when the plaintiffs purchased the dock in an independent transaction, “they did not validly obtain any right or privilege to place the dock in its current location and never obtained any non-conforming status associated with the dock’s location.” As a result, the court found that the town’s ZBA appropriately denied the plaintiffs’ application for a building permit where the application was for a new dock and not a replacement for a grandfathered non-conforming dock.