Toussaint v. Town of Harpswell

1997 ME 189, 698 A.2d 1063 (1997)

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Toussaint v. Town of Harpswell

Maine Supreme Court
1997 ME 189, 698 A.2d 1063 (1997)

  • Written by Tanya Munson, JD

Facts

Jane Waddle constructed an addition to her home that she operated as the Great Island Dog Kennel, a for-profit kennel with the capacity to board 15 dogs. The kennel was located in a Commercial Fishing II District according to the zoning ordinance of the Town of Harpswell (the town) (defendant). The zoning ordinance permitted home occupations in that district, as long as any home occupation providing public restrooms or showers or serving food to the public obtained a CEO permit. In 1995, Donald and Marietta Toussaint (plaintiffs), summer residents of the town, asked the code enforcement officer, Roland Mayo, to enforce the zoning ordinance and prohibit the continued operation of the kennel. Mayo, who issued Waddle the building permit for the construction of the kennel, refused to take enforcement action. The Toussaints appealed to the zoning board of appeals (the board). Residents of the town argued in support of Waddle, stating that the kennel was not disruptive, and the noise of the dogs was no more disruptive than the barking of neighborhood dogs or the noise produced by boats, jet skis, or bait trucks in the area. To show that dog kennels were customarily conducted on residential property, Waddle provided a list of kennels that operated on residential properties in surrounding communities. The board denied the appeal of the Toussaints, and the Toussaints subsequently sought judicial review in the superior court. The superior court set aside the board’s decision as an error of law and remanded to the board for appropriate enforcement action. The superior court found that a dog kennel was different from traditional home occupations such as tutoring or hairdressing because it increases noise, traffic, and odor and was thus not compatible with a residential neighborhood. Waddle appealed the judgment.

Rule of Law

Issue

Holding and Reasoning (Roberts, J.)

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