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|Local kennel appeals cease and desist order|
|Written by Mike Melanson|
|Wednesday, 16 January 2013 10:10|
A Franklin Street kennel is appealing a cease and desist order to discontinue dog daycare services.
In November, Building Commissioner Scott Lambiase issued the order against Duxbury Kennel in the Pines, 500 Franklin St., after neighbors complained about noise from barking and changes in the way the kennel operates.
On Thursday, more than 100 people attended a Board of Appeals meeting held in the Mural Room at Town Hall that included a hearing on the order and appeal. Appeals Board member Emmett Sheehan read correspondence from neighbors, with the majority indicating no objection to barking dogs or kennel operation.
Attorney Robert Galvin of Duxbury, representing the kennel owners, said there has been a kennel at the location since 1962 and it is a pre-existing, non-conforming use. The Ziko family operated the kennel and sold it to Steve and Wendy Oleksiak in 2007, who also own and operate the Cohasset Kennel.
Galvin said there were 30 dog runs before the sale and there still are 30 dog runs. The new owners added 300 feet of solid wood fencing and chain-link fencing that screens the property and acts as a sound barrier.
They added a streetlight at the end of the driveway and entered a four-year contract with the NSTAR. They also put in central air conditioning and heating for the dogs, a new septic system and an asphalt driveway, Galvin said.
He said the building is 270 feet off of Franklin Street and he cannot hear any barking when he stops in the driveway in the morning and rolls down the window. Galvin said the Zikos bred poodles and groomed dogs and boarded dogs for the day when they had the kennel, although the service was not known as “dog daycare” at the time.
“It’s always occurred there in the way that it’s occurring there today,” he said.
Galvin said Duxbury Kennel in the Pines is open 340 days a year and averages 4.3 dogs a day.
“Obviously, dogs are going to bark and these dogs bark too,” he said.
No daycare dogs are allowed on the premises before 8 a.m. No dogs are left outside unattended after 6 p.m. Daycare dogs cannot stay after 6 p.m. and excessive barkers are turned away, Galvin said. Galvin said a difference now is that as many as 10 dogs are allowed to socialize and play outside for 20 minutes a day, under supervision, in an enclosed area.
One or two dogs are sometimes walked on a leash on the property, he said.
Galvin said the new owners did not change the property’s use and that the kennel and dog daycare would be eligible for a special permit and asked the appeals board to overturn the building commissioner’s order. There are 1,637 licensed dogs in Duxbury today, Galvin said, citing numbers from Town Clerk Nancy Oates.
“This has really been a staple of the community,” he said.
Lambiase said the new owners came to his office in 2007 when they purchased the property. At the time, he found no permit and nothing in the street file to authorize a kennel. However, the animal control officer indicated the property was in fact a kennel and the Zikos provided checks and deposit slips for the company. Lambiase said his opinion then, as a result, was that the kennel was a grandfathered, non-conforming use.
However, Lambiase said he started to get complaints from two neighbors about barking and operation from the kennel in 2012. He said there was no special permit for a commercial use on file to offer guidance, and on reconsideration, the kennel could not be considered a grandfathered because Duxbury zoning does not permit the use.
“We don’t specifically allow them, and anything not specifically allowed in this town is prohibited,” he said.
Lambiase said the use has intensified because the kennel is busier now and he heard barking dogs from the driveway when he checked one morning at drop-off time.
“They’ve expanded the use and they should have come before the Board of Appeals to expand upon that,” he said.
Lambiase said the owners have complied with the Nov. 9 cease and desist order, which carries fines of $200 a day for violations. The kennel continues to board dogs, but there is no dog daycare, he said. Wendy Oleksiak said she has tried to be a good neighbor.
“It’s a witch hunt,” she said. “Nothing has changed, except for people who are trying to sell their homes and pointing their concerns about selling their homes at us.”
Galvin said the buildings on the property were constructed with permits for their present uses, and that there are more than 30 years of kennel licenses there on file. Pamela Webster-Walsh of Franklin Street said the noise from the kennel this past summer was deafening, but has become much quieter since the cease and desist order was issued.
“It’s constant, on good weather days,” she said. “It’s almost like you pray for rain.”
Two other Franklin Street neighbors also complained about the noise from barking at the meeting.
Attorney Robert Marzelli of Marshfield, who represents Webster-Walsh and another neighbor, said the difference is that the kennel is now a commercial use being operated by owners who do not reside at the property. The prior owners lived there, he said. The new owners added three fenced-in play areas, and the fact that dogs are now outside is also a change in land use and site footprint, Marzelli said.
“The problem is the noise,” he said.
The Board of Appeals continued the matter to Feb. 28.
In other action Thursday, the appeals board closed a public hearing on a request by Northland Residential Corporation of Burlington to lift a 55-plus age restriction at the Brewster Commons development slated for 13.9 acres of land off Tremont Street, Woodbridge Road and Bay Farm Road.
The board continued deliberation of the request and other changes proposed for the comprehensive permit to Feb. 14. The development is permitted to include 40 single-family and duplex condo units, 10 of which would be considered affordable under the state Chapter 40B affordable housing law.
Northland Residential has a purchase and sales agreement with the property owner. Appeals board member Judith Barrett read letters from eight neighbors who oppose lifting the age restriction. Nine or 10 residents also spoke in opposition at the public hearing Thursday, concerned the development would attract more occupants and children if the age restriction were to be lifted.
Shirley Jenkins of Fairway Lane said people who have purchased property in the area had the impression that the Brewster Commons development would be age-restricted.
“I don’t think it’s fair to change the rules in the middle of the game,” she said.
John Dawley, president and CEO of Northland Residential, said the age restriction is a condition that makes the project uneconomical, or impossible to build or finance. Dawley cited the example of another age-restricted project in Duxbury has 44 units that were permitted six years ago. Only 18 units have sold, or three per year, he said.
“Is that an economically successful community?” he asked. As for suggestions of lowering asking prices, he said, “If they give it away, is it economical?”
Dawley said the number of occupants can be limited by bedroom or dwelling in the covenant, or stated when the developer proposes a homeowner’s association to the Appeals Board.