- Written by Administrator
- Published: 02 October 2013
The Duxbury Board of Appeals granted a use variance on April 26, 1973, to the prior owners of the premises. At the time, the land also included abutting land, totaling 7.8 acres. After receiving complaints from the abutters, the building commissioner issued enforcement orders in the fall of 2012 to cease and desist dog daycare and later to discontinue the use of exterior play yards.
Monomoy Enterprises Two, Ltd., dba Kennel in the Pines, owners Wendy and Stephen Oleksiak, appealed the 2012 enforcement to the Zoning Board of Appeals. The Board held public hearings on the appeal on Jan. 10, 2013, and Feb. 28, 2013. The appellants withdrew the appeal before the Board made a decision.
After withdrawing their first appeal, the appellants submitted a letter dated April 10, 2013, seeking clarification of the Inspectional Services Department’s position on the use of the land, arguing the use, including day boarding of dogs and outdoor play areas, was permitted under the use variance from 1973. Robert Marzelli, counsel for the abutters, responded to the appellants submission with a letter dated April 20, 2013. He argued the appellants did not qualify for a special permit and were operating in violation of the variance. He requested the Building Commissioner enforce the terms of the variance and prohibit the use of the kennel where is violated the geographical and use limitations of the variance.
The Building Commissioner issued a notice of violation dated June 24, 2013, containing a new enforcement action by the Town and legal basis for the action. The notice required the appellants to immediately cease any use of the land for day boarding or dogs or outdoor play areas.
On July 11, 2013, the town clerk received an appeal of the notice, dated June 28, 2013. On Sept. 12, 2013, the Board held a public hearing at which the appellants, abutters and respective counsel made presentations. The Board also heard comments from the public, including other abutters and neighbors opposed to the continued use as a dog kennel.
The 1973 use variance was recorded at the Plymouth County Registry of Deeds, and permitted the use of a “kennel,” but the term was ambiguous in the variance. A new kennel was built in 1973 after the variance was issued and currently has 30 pens and attached outdoor runs for dogs.
In the absence of any contrary evidence, the Board found the use of the kennel in 1973 included day boarding and unlimited outdoor play areas for dogs at the kennel. The current facilities include two kennel buildings, attached runs and fenced-in play yards. The variance did not include any limit on the number of dogs that could be boarded.
The Board overturned the Notice of Violation #0571, prohibiting the use of day boarding of dogs and outdoor play areas for dogs. The Board concluded the two uses are permitted aspects of operating the kennel, according to the 1973 variance.