Keith C. Long, Justice
In this action, pursuant to G.L. c. 40A, § 17, plaintiffs Lesley and Steven O'Keefe appeal the unanimous (5–0) decision of the Sudbury Zoning Board of Appeals granting their neighbor, defendant Lynne Sullivan, a special permit allowing Ms. Sullivan to keep four dogs at her home.1 Ms. Sullivan's property is nearly 5 acres. The dogs—pedigreed Eurasiers—are Ms. Sullivan's personal pets. They live with Ms. Sullivan inside her house, have someone with them at all times,2 and spend most of their time indoors. When they are outside, they are confined to a chain-link fenced-in area behind the house (the “interior fence”). See Ex. 1 (attached).
The O'Keefes abut Ms. Sullivan's property to its south. Their house is a distance away from the fenced-in area where the dogs are confined when they are outside, and the O'Keefes are visually buffered from that area by an 8–foot high solid cedarwood fence with a row of 10–foot tall hemlock trees just behind it, located just inside the boundary line between the two properties—part of the perimeter fence that surrounds Ms. Sullivan's back acreage and fences it off from the wooded conservation land, pond, and wetlands that border Ms. Sullivan's house to the east, north and west (the “perimeter fence”). See Ex. 1.
Ms. Sullivan's permit is conditioned on her dogs not becoming a nuisance,3 a maximum number of four personal pet dogs kept on the property, no outdoor kenneling, no commercial operations involving the dogs, waste disposal in accordance with the Board of Health's requirements, and the immediate report of any complaints about the dogs to the Animal Control Officer.4 As part of its investigation before issuing the permit,5 the zoning board directed the Sudbury Animal Control Officer to inspect the Sullivan house and dogs, and the Officer, Jennifer Condon, did so on three separate occasions, twice before the zoning board made its ruling, and once afterwards as a follow-up. On each of these occasions, including one in which she brought her five-year-old daughter to see how the dogs interacted with children, Officer Condon found the dogs to be happy, well-mannered, well cared-for, friendly, not aggressive, under command at all times, and followed directions well. They did not bark on any of her visits. As Officer Condon testified, “if all dogs acted the way [Ms. Sullivan's] dogs acted, I wouldn't have a job.”
Despite this, the O'Keefes are opposed to the permit, contending that the dogs are a nuisance. They claim to be bothered by barking and, in addition, allege that there are often five dogs at Ms. Sullivan's house (the fifth is owned by Ms. Sullivan's mother, who lives in a neighboring town but periodically visits with her dog) which, they argue, is a violation of the permit. For these reasons, they contend that the granting of the special permit was arbitrary and capricious and should be overturned. In this they are alone. No other neighbor has any objection to the dogs. Many sent emails to the Board in support of Ms. Sullivan's application, and three testified at trial in support of the permit.
The case was tried before me, jury-waived. Based on the testimony and exhibits admitted at trial and my assessment of the credibility, weight, and appropriate inferences to be drawn from that evidence, I find and rule as follows, affirming the grant of the special permit.6
These are the facts as I find them after trial.
The Parties' Properties
Ms. Sullivan, her children, her au pair,7 and her dogs live at 28 Paddock Way in Sudbury, a nearly five-acre property which she purchased in March 2011 and then extensively renovated. The O'Keefes' house at 30 Paddock Way, which they bought from Mrs. O'Keefe's parents (James and Dorothy Oakes) in April 2011, is also on a large lot and directly abuts Ms. Sullivan's property on the south.8 Both homes are in the Residential A–1 Zoning District. The neighborhood is one of large houses on large lots.
Ms. Sullivan's house is in the center of her property and thus set back a considerable distance from all of the neighboring homes, including the O'Keefes'. The distance from the Sullivan house to the O'Keefe house is between 150 and 175 feet.
Ms. Sullivan's back yard is large (several acres), and is bordered to the east, north and west by woods, conservation land, a pond, a stream, and wetlands. As part of the renovation work on her property, Ms. Sullivan installed two fences. The first is a perimeter fence enclosing the bulk of her back yard (the “perimeter fence”). The second is inside the perimeter fence, immediately behind the house, and encloses her outdoor pool and the area where the dogs roam when they are outside (the “dog area fence”). Each of these fences is made of heavy wire mesh that the dogs cannot get through. As a visual barrier between her back yard and the O'Keefe house, Ms. Sullivan has also installed an eight-foot-high solid cedar fence and a row of ten-foot-high hemlock trees along the section of the perimeter fence between the two houses. See Ex. 1.
Ms. Sullivan's Dogs
Ms. Sullivan has four dogs, all Eurasiers: Keira (who she has owned since 2007); Zeus (who she has owned since 2008); Ella (who she has owned since 2010); and Sabrina (who she has owned since 2014).9 The Eurasier breed is a cross between a Chow, a Keeshon and a Somoyed. They are quiet, friendly, and non-aggressive dogs, bred for companionship, and, because of this, often serve as family dogs.
Ms. Sullivan's dogs are family dogs, people-oriented, and spend most of their time indoors. They bark only rarely—if indoors, when a stranger rings the doorbell, and if outdoors, generally only when they see a stranger in the surrounding woods coming up to the line of the perimeter fence—and then usually only briefly (a bark or two, taking 10 seconds or less).10 They follow Ms. Sullivan as she moves around her house, play well with children, and get along with other dogs. The dogs are never left alone for any length of time. When Ms. Sullivan is at work, her au pair is at the house with the dogs. With few exceptions, there are only two circumstances in which the dogs will be outside—if Ms. Sullivan, a family member, or the au pair are themselves outside, or if the dogs need to relieve themselves. Otherwise, they are inside the house.
Ms. Sullivan shows her dogs competitively. Success at these competitions requires the dog to be extremely well-behaved and under control. They have successfully been trained to be so. Sabrina, the youngest dog, has won “Best in Show” at the annual U.S. Eurasier gathering, and Zeus has won second place in the “Open Male” category.
Prior to the Board's decision, as part of its investigation, Jennifer Condon, Sudbury's Animal Control Officer,11 visited Ms. Sullivan's dogs on two occasions. She also visited, unannounced, on a third occasion as a follow-up. In her testimony at trial, Officer Condon described the dogs as friendly, happy, well-mannered, under command at all times, and followed directions well. They were not aggressive, and did not bark, at any time she was there. Neither Officer Condon nor the Sudbury police department have ever received any complaint, from anyone, about the dogs.12 Officer Condon thought highly of Ms. Sullivan as a dog owner and of the dogs themselves, stating, as previously noted, “[if] all dogs acted the way her dogs acted, I wouldn't have a job.”13
Officer Condon brought her five-year old daughter with her on one of her visits to see how the dogs would interact with children, and testified that the interaction went well. The dogs greeted her daughter, were happy to see her, and were not aggressive in any way. The five-year-old felt very comfortable around the dogs and enjoyed her time playing with them. When asked at trial, “[d]o you believe that Ms. Sullivan's keeping of her four pet dogs in the area where she keeps them in the fenced-in area has any adverse impact on the neighborhood?”, Officer Condon responded, “[a]bsolutely not.”14 I credit all of Officer Condon's testimony.
The O'Keefes contend that Ms. Sullivan regularly keeps five adult dogs at her house. I find otherwise. Ms. Sullivan owns and keeps only four dogs—the Eurasiers identified above. The so-called “fifth” dog, Regis, is owned by Ms. Sullivan's mother, Peggy Corkery, who lives in Stow. Regis lives with Ms. Corkery and is registered in Stow, and is at the Sullivan property only when Ms. Corkery brings him along on her visits to her daughter (Ms. Sullivan) and grandchildren (Ms. Sullivan's children). In the five years that Ms. Sullivan has lived on Paddock Way, Regis has slept over at her house only twice.
Prior to the conflict with the O'Keefes, Ms. Corkery would sometimes come to Ms. Sullivan's home as early as 6:30 a.m. However, after the O'Keefes complained in April 2015 that an incident of barking woke them up (the barking came from Regis, not any of Ms. Sullivan's dogs), Ms. Sullivan asked her mother to come between 11:00 a.m. and 4:00 p.m. to eliminate any barking that would potentially wake the O'Keefes, and Ms. Corkery has done so.
With the exception of the O'Keefes, none of Ms. Sullivan's neighbors have a problem with Ms. Sullivan's dogs.15
Julie Clifford, who lives across the pond to the east of Ms. Sullivan, testified that Ms. Sullivan's dogs are friendly and that she has never heard them bark persistently or excessively, day or night. Ms. Clifford has a dog of her own named Rosie, a rescue dog who barks often—at people, animals, other dogs, and automobiles. Ms. Clifford is a friend of the O'Keefes, and often visits the O'Keefes' home. When she is at the O'Keefes' and has left Rosie behind at her house, she can clearly hear Rosie barking. Nonetheless, the O'Keefes have never complained about Rosie's barking, nor has anyone else in the neighborhood.
Denise Sauter, whose house directly abuts the O'Keefes' on its south, is familiar with Ms. Sullivan's dogs and testified that they are friendly, well-behaved, and quiet. According to Ms. Sauter, there are other dogs in the neighborhood who bark persistently. Ms. Sullivan's do not. The Sauters were among those who wrote to the zoning board in support of Ms. Sullivan's special permit.
A third neighbor, Bernard Bonn, whose house is somewhere between 375 and 500 feet from Ms. Sullivan's, testified that Ms. Sullivan's dogs have been pleasant and curious when he has been around them. He has never seen them being aggressive, nor has he ever heard them barking, day or night.16 To assist with Ms. Sullivan's application for the kennel license and special permit, Mr. Bonn sent Ms. Sullivan an email stating that he and his wife had no objection to the application, and that they were seldom aware that her dogs were even in the neighborhood. This email was included in Ms. Sullivan's permit application.
In addition to these current neighbors, Doris Graninetti, Ms. Sullivan's neighbor from her previous residence on Hamblin Lane, also testified at trial. Ms. Graninetti lived next to Ms. Sullivan for ten years. During several of those years, Ms. Sullivan had three of the same dogs that she currently owns: Keira, Zeus, and Ella. Ms. Graninetti testified that Ms. Sullivan is a very responsible dog owner and that the dogs themselves are friendly. During the entire time she lived next door to them, she never heard the dogs bark consistently or persistently for any length of time.
The O'Keefes did not offer the testimony of anyone but themselves who had an issue with Ms. Sullivan's dogs, or of anyone who corroborated their claims of barking.
The Relevant Provisions of the Sudbury Bylaws
In Sudbury, both a kennel license issued by the town clerk (see Gen. Bylaw, Art. V, §§ 3–3 & 3–9),17 and a special permit issued by the zoning board of appeals (see Gen. Bylaw, Art. V, § 3–10(B), are required for an owner to have four or more dogs on a single property. Ms. Sullivan obtained both. This case concerns only the special permit.
The requirements for such a special permit are set forth in Sudbury's Zoning Bylaws. Section 2313 of the zoning bylaw provides:
The Board of Appeals may grant a special permit for the nonexempt raising of swine, poultry, furbearing animals, and the operation of kennels in any district; in accordance with Section 6200, such Board may impose such restrictions with respect to the conduct thereof as in its judgment may seem necessary for the general welfare of the Town.
Zoning bylaw §§ 6220 (Criteria) and 6240 (Conditions) then provide:
Unless otherwise specifically provided to the contrary, the Board of Appeals shall, before granting special permits, find that in its judgment all the following conditions are met:
a) That the use is in harmony with the general purpose and intent of the bylaw;
b) That the use is in an appropriate location and is not detrimental to the neighborhood and does not significantly alter the character of the zoning district;
c) Adequate and appropriate facilities will be provided for the proper operation of the proposed use;
d) That the proposed use would not be detrimental or offensive to the adjoining zoning districts and neighboring properties due to the effects of lighting, odors, smoke, noise, sewage, refuse materials or other visual nuisances;
e) That the proposed use would not cause undue traffic congestion in the immediate area.
Zoning Bylaw, § 6220.
Special permits may be granted with such reasonable conditions, safeguards, or limitations on time or use, including performance guarantees, as the Special Permit Granting Authority [here, the zoning board of appeals] may deem necessary to serve the purposes of this Bylaw.
Zoning Bylaw, § 6240.
“ ‘Where two or more statutes relate to the same subject matter, they should be construed together so as to constitute an harmonious whole consistent with the legislative purpose.’ ” Saccone v. State Ethics Comm'n, 395 Mass. 326, 334 (1985) (quoting Registrar of Motor Vehicles v. Bd. of Appeal on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585 (1981)). The analysis thus includes all parts of the Sudbury General and Zoning Bylaws which address the keeping of dogs. Here, the General Bylaw defines “public nuisance” as it relates to dogs as “[t]he keeping or harboring of any dog, whether licensed or not, which by habitual, consistent and persistent howling, yelping, barking, or other noise disturbs or annoys any persons residing in the neighborhood,” and directs that “[d]ogs shall be kept in such a manner that no nuisance is produced regarding sanitary conditions, housing, food, shelter, water, or other factors which may cause a nuisance.” Gen. Bylaw, Art. V, § 3–13. As previously noted, “nuisance dogs” are defined as including, but not limited to, “dogs whose owners repeatedly allow them to bark excessively, trespass on private property, damage property, molest passersby, chase persons walking, jogging, or riding bicycles, chase vehicles, and/or disturb the peace in any way at any time.” Id. Action can be taken against any particular dog if it is determined by the Animal Control Officer to be a “nuisance dog.” See Gen. Bylaw, Art. V, § 3–13. On petition of the Animal Control Officer or twenty-five citizens to the Board of Selectmen, action can be taken against an entire “kennel”, seeking revocation of its license, if there is aggrievement or annoyance “to an unreasonable extent by one or more dogs at a kennel ... because of excessive barking or vicious disposition of said dogs or other conditions connected with such kennel constituting a public nuisance.” See Gen. Bylaw, Art. V, § 3–9(D). The “nuisance dog” standard applied to barking is whether it persistently occurs for more than forty minutes.18
The Special Permit
Prior to acquiring Sabrina (her fourth dog), Ms. Sullivan contacted the town to see what, if any, licenses or permits she might need to keep a fourth dog at her property. After learning what the bylaws required, she began the process by informing her neighbors of her intent to file an application, met with the Animal Control Officer and the Building Inspector, and cooperated with them on their visits to her home and dogs.
Ms. Sullivan filed her special permit application on December 8, 2014, and included the supporting letters and emails she had received from her neighbors in the application package. The Animal Control Officer (Officer Condon) submitted a written report in favor of granting the permit, and the zoning board held a public hearing. Several neighbors attended, raised specific questions, and were satisfied with the answers. The board then unanimously (5–0) approved the permit subject to the conditions listed below, finding that, with those conditions, all requirements for the issuance of a special permit had been met.19 Its written decision was filed with the town clerk on January 16, 2015. The permit conditions were:
1. [That] the dogs do not become a nuisance.
2. The maximum number of personal pet dogs allowed on the property is four (4).
3. No outdoor kennel facility shall be built.
4. There shall be no commercial operations involving the dogs.
5. Waste disposal shall be in accordance with the Board of Health requirements.
6. Any complaints received by the applicants shall be reported immediately to the Animal Control Officer.
The O'Keefes received notice of the hearing but did not attend. They timely filed this appeal from the granting of the permit.
Further facts are set forth in the Analysis section below.
In this G.L. c. 40A § 17 appeal, the O'Keefes contend that the board's approval of the special permit was arbitrary and capricious because, in their view, the board did not properly consider the impact Ms. Sullivan's fourth dog would have on the neighborhood.20 They acknowledge the conditions imposed by the board, but contend that those conditions are inadequate because they are vague, ambiguous, and unenforceable. I disagree, and rule otherwise. The standard of review of the board's decision is whether any rational board could have come to the same conclusion. See Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 74 (2003). The board's approval is well within that range of discretion. As more fully set forth below, Ms. Sullivan's fourth dog will not materially affect the O'Keefes' enjoyment of their land and will have no detrimental effect on the neighborhood. The dogs are quiet, well-behaved, always under supervision, and kept either indoors or in a fenced-in area well away, and visually buffered, from the O'Keefes' house. Whatever barking occurs is minimal, and well-within what Sudbury allows for dogs. Sudbury has an Animal Control Officer who can respond to any legitimate complaint. It has reasonable and well-established standards for judging whether complaints are legitimate and warrant action. And it has procedures and remedies in place for implementing such action.
The Standard of Review
In this G. L. c. 40A, § 17 appeal, as in all such proceedings, the reviewing court makes de novo factual findings based solely on the evidence admitted in court, and then, based on those facts, determines the legal validity of the municipal body's decision, with no evidentiary weight given to any findings by the Board. See Shirley Wayside Ltd. P'ship v. Bd. of Appeals of Shirley, 461 Mass. 469, 474–475 (2012); Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Bd. of Appeals of Billerica, 454 Mass. 374, 381–382 (2009); Roberts v. Sw. Bell Mobile Sys., Inc., 429 Mass. 478, 485–486 (1999).
The Board's decision “ ‘cannot be disturbed unless it is based on a legally untenable ground’ or is based on an ‘unreasonable, whimsical, capricious or arbitrary’ exercise of its judgment in applying land use regulation to the facts as found by the judge.” Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 381–382 (quoting Roberts, 429 Mass. at 487). In determining whether the Board's decision was “based on a legally untenable ground,” the court must determine whether it was decided “on a standard, criterion, or consideration not permitted by the applicable statutes or bylaws.” Britton, 59 Mass. App. Ct. at 73 (internal citations omitted). In determining whether the decision was “unreasonable, whimsical, capricious, or arbitrary,” “the question for the court is whether, on the facts the judge has found, any rational board” could come to the same conclusion. See id. at 74.
The Board Validly Granted Ms. Sullivan's Special Permit
The Board's decision granting Ms. Sullivan's special permit application is fully supported by the facts, rationally based, and well within the Board's allowable discretion. The conditions it imposed more than adequately address any impacts from the fourth dog, and are neither vague nor unenforceable.
Each of the requirements for the grant of a special permit has been met.
• “[T]he use is in harmony with the general purpose and intent of the bylaw.” Zoning Bylaw, § 6220(a). Dogs are common in Sudbury, are allowed in this district, and the General Bylaws have detailed provisions addressing them. See General Bylaws, Art. V, § 3 (Regulation of Dogs).
• “[T]he use is in an appropriate location and is not detrimental to the neighborhood and does not significantly alter the character of the zoning district.” Zoning Bylaw, § 6220(b). Ms. Sullivan's property has nearly five acres. The neighborhood is one of large lots, and much of it is conservation land, ponds and wetlands. The dogs are Ms. Sullivan's personal pets. There are only four.21 They live inside her house and, when outside, are confined to a fenced-in area visually buffered from the neighbors.
• “Adequate and appropriate facilities will be provided for the proper operation of the proposed use.” Zoning Bylaw, § 6220(c). As noted above, the dogs live inside22 and, when outside, are confined to a large fenced-in area, more than adequate for their needs.
• “[T]he proposed use [will] not cause undue traffic congestion in the immediate area.” Zoning Bylaw, § 6220(e). There are only four dogs. They are personal pets. The conditions to the special permit prohibit commercial activities associated with the dogs.23
• “[T]he proposed use [will] not be detrimental or offensive to the adjoining zoning districts and neighboring properties due to the effects of lighting, odors, smoke, noise, sewage, refuse materials or other visual nuisances.” Zoning Bylaw, § 6220(d). No new lighting is involved because of the dogs. Dog waste is regularly cleaned up, so there are no offensive odors.24 No smoke, sewage, or refuse materials are involved. The dogs are confined by fences of a type and in locations permitted by zoning, and the areas where they roam are visually buffered from the neighborhood by the solid cedar fence and line of tall hemlock trees near the perimeter line.
The O'Keefes' complaints are based on noise and, specifically, on barking. All dogs bark at some times however, so any legitimate complaint must be based on unreasonable barking. The standard in Sudbury is repeated “excessive” barking, defined as “habitual, consistent and persistent howling, yelping, barking, or other noise.” See Sudbury Gen. Bylaws, Art. V, § 3–13. As consistently applied by the Animal Control Officer, the police, and the Board of Selectmen, this means barking for more than five minutes at a time, even in the nighttime/early morning hours, to warrant a warning visit, and persistent barking of more than forty minutes' duration to warrant action. See n. 10, supra. Ms. Sullivan's dogs do not even fall within the “warning” guideline.
The O'Keefes' complaint that Ms. Sullivan's dogs are habitual and persistent “barkers,” or bark any more than occasionally and briefly, is not supported by the evidence. No one other than themselves says so, and I do not believe the O'Keefes' testimony when they claim otherwise. None of the other neighbors has heard persistent barking from Ms. Sullivan's dogs. The closest, Mr. Bonn, is often not aware that the dogs are even there. The Animal Control Officer, Officer Condon, made three separate visits. She confirmed that the dogs are under close supervision at all times, are well-mannered, not aggressive, and good with children. They are either inside or confined by a chain-link fence to an area well away from the O'Keefes' house, and the 8–foot-high, solid cedar fence and line of 10' hemlock trees along the border between the houses is a visual buffer. The special permit limits the number of resident dogs to four. It prohibits housing them outdoors. It prohibits commercial operations involving the dogs. It recognizes that their behavior can be addressed if it becomes a nuisance. And it mandates that all complaints about the dogs immediately be reported to the Animal Control Officer so that action, if appropriate, can be taken.
The Conditions in the Board's Decision are not Vague, and They are Fully Enforceable
Contrary to the O'Keefes' contentions, the conditions set forth in the Board's special permit are not vague, and are the type of reasonable conditions that would normally accompany any special permit for a private individual to keep this small number of personal pets at her residence.
Condition 1, “The dogs do not become a nuisance”, is a clear reference to the provisions in the General Bylaws that govern the regulation of dogs (Gen. Bylaws, Art. V, § 3) and to the well-established practices and procedures of the Animal Control Officer, the police, and the Board of Selectmen. See Saccone, 395 Mass. at 334 (“Where two or more statutes relate to the same subject matter, they should be construed together so as to constitute an harmonious whole consistent with the legislative purpose.” (quotations omitted)). See also Wendy's Old–Fashioned Hamburgers of N. Y., Inc., 454 Mass. at 381 (deference to local authority's interpretation of bylaw appropriate when shown that it possesses special knowledge of bylaw's history and purpose).
Condition 2, “The maximum number of personal pet dogs allowed on the property is four (4)” is a clear reference to the number of dogs resident there. It would be unreasonable to read it as a prohibition on visitor's dogs, and there is nothing in the special permit decision that gives any support to such a reading.25
Condition 3, “No outdoor kennel facility shall be built”, is clear. The dogs must be housed inside the house.
Condition 4, “There shall be no commercial operations involving the dogs”, is also clear. See Concise Oxford Dictionary (Tenth Ed., 1999) at 286 (defining “commercial” as “concerned with or engaged in commerce; making or intending to make a profit”). See also Zoning Bylaw Art. 7000, definitions of “Commercial recreation, indoor”, “Commercial recreation, outdoor”, and “Club or lodge, private” (giving examples of “commercial activities”).
Condition 5, “Waste disposal shall be in accordance with Board of Health requirements”, is a clear reference to those regulations. See also Gen. Bylaws, Art. V, § 3–14 (Dog Waste Disposal).
Condition 6, “Any complaints received by the applicants shall be reported immediately to the Animal Control Officer” is clear, as is its implicit reference to the town's procedures for the handling of such complaints. See Gen. Bylaws, Art. V, § 3–9(D).
The Interaction Between the Special Permit and the Parties' Previous Settlement Agreements
This is not the first time the O'Keefes have had disputes with Ms. Sullivan. Rather, it is the latest in a series.
Ms. Sullivan bought her property in 2011 and did extensive renovations. Ms. O'Keefe, who grew up next door, was, and is, unhappy with the scale of the renovations, and has opposed them at every stage. At the start, she, her husband, and her parents (James and Dorothy Oakes, the prior owners of what is now the O'Keefe house) challenged the Sudbury Conservation Commission's Order of Conditions and Stormwater Management Permit which allowed Ms. Sullivan to rebuild the existing single family house, upgrade its septic system, and construct a pool and patio. When they were unsuccessful at the Commission and DEP level, they filed a complaint in Middlesex Superior Court seeking certiorari review. That action was settled in the parties' June 5, 2011 Settlement Agreement.
Later, the Oakes and O'Keefes brought a second Superior Court action alleging breach of the Settlement Agreement and, in addition, asserted an adverse possession claim to a portion of Ms. Sullivan's land. That action was settled in the parties' June 11, 2012 Amendment to Settlement Agreement, which included two specific provisions related to Ms. Sullivan's dogs.26 Those provisions are as follows:
The Oakes and O'Keefes will never contact the animal control officer or police, or make any adverse claim with respect to dogs owned or cared for by Sullivan if they are barking in the dwelling or in any fenced areas on Sullivan's property at 28 Paddock Way and will not raise any issues with respect to the impact that dogs owned or cared for by Sullivan may have on the local wildlife, nor encourage others to do so.
The Oakes and O'Keefes will abide by all applicable laws and regulations governing their conduct on their property. If the O'Keefes have an issue with conduct at the Sullivan property (for example, noise late at night), the O'Keefe's are required to first attempt to contact Sullivan by phone at [telephone number redacted] at least twice in a two (2) hour period (Sullivan will notify O'Keefes of any change to her contact information). If the police, fire dept., building inspector or any other town or government official is contacted without first attempting to contact Sullivan twice within a two (2) hour period, and no citation is issued by a government official, O'Keefes will pay to Sullivan damages of $500.00 per incident. Three (3) or more of said damage assessments in a two (2) year span will be considered a breach of this agreement. Obvious emergency situations (for example fire, smoke, theft, etc.) will not require that the O'Keefes first contact Sullivan.
Amendment to Settlement Agreement, ¶ 4(d) & (e). Obviously they conflict, in part, with the condition in the Special Permit that requires “[a]ny complaints [about the dogs] received by the applicants [to] be reported immediately to the Animal Control Officer”—a condition which implicitly recognizes and protects the right to make a justified complaint to the town about the dogs, and implicitly preserves the right to pursue such complaints through the bylaw process (initial determination by the Animal Control Officer, with a right of appeal to the Board of Selectmen). The two can be reconciled, however, in the following way. The O'Keefes may complain about the dogs directly to the Animal Control Officer, but they must first notify Ms. Sullivan in the manner specified in the Amended Settlement Agreement that they are doing so,27 and they must have a good faith basis to make such a complaint. Having now heard the testimony of the Animal Control Officer on the standard applied to barking complaints (at least 5 minutes continuous barking before a complaint is warranted, even in the night or early morning hours, and repeated, persistent barking for more than 40 minutes before a dog is considered a “nuisance dog”), they are on notice of the type and duration of barking upon which a good faith complaint must be based. The prohibition on their encouraging others to complain remains. Given that the O'Keefes have a right to complain directly to the Animal Control Officer themselves, and the potential for harassment if Ms. Sullivan is compelled to report their complaints to the Animal Control Officer even if there is no basis for them, the condition in the special permit that requires Ms. Sullivan to report complaints to the Animal Control Officer shall not apply to complaints made by the O'Keefes. The O'Keefes must make their own complaints—directly to the Officer—and be prepared to justify them. Ms. Sullivan shall have no obligation to relay them.
The remaining terms in the Settlement Agreement and Amended Settlement Agreement are unaffected by this Decision.
For the foregoing reasons, and with the sole modification set forth above, the Board's decision granting the special permit is AFFIRMED.
Judgment shall enter accordingly.
Not Reported in N.E.3d, 2017 WL 3776595
1 Under the Sudbury General Bylaws, homeowners are permitted to keep up to three dogs by right. See Sudbury Gen. Bylaws, Art. V, §§ 3–3, 3–9(A), and 3–10(B). Ms. Sullivan needs a special permit from the zoning board (governed by § 6200 of the town's Zoning Bylaws), and also a kennel license from the town clerk (governed by Art. V, §§ 3–1, et seq. of the General Bylaws, a license she has also received), only because of her fourth dog.
The town clerk can issue a kennel license only after an investigation and written certification by the town's Animal Control Officer “that the premises proposed are appropriate for use as a kennel and that such use will have no significant adverse effect on the peace and quiet of the neighborhood or on the sanitary conditions there.” Gen. Bylaws, Art. V, § 3–10(A). The Animal Control Officer, who also investigated on behalf of the zoning board, has so certified.
2 Ms. Sullivan employs an au pair to be with her children and her dogs when she is at work or otherwise away from the house.
3 The town's General Bylaws define when a dog is considered a nuisance. See Gen. Bylaws Art. V, § 3–13. The town's Animal Control Officer makes the initial determination, with a right of appeal to the Board of Selectmen. See Gen. Bylaws, Art. V, §§ 3–13 & 3–22—3–24. In brief, dogs are considered “nuisance dogs” if they (1) bark excessively, (2) trespass on private property, (3) damage property, (4) molest passersby, (5) chase persons walking, jogging, or riding bicycles, (6) chase vehicles, and/or (7) disturb the peace in any way at any time. Gen. Bylaws, Art. V, § 3–13. The guidelines followed by the town in applying the “nuisance” standard with respect to barking (the primary basis of the O'Keefes' opposition to Ms. Sullivan's special permit, see discussion below) are discussed below.
4 Zoning Board of Appeals, Notice of Decision (Jan. 16, 2015).
5 There was also a full public hearing before the board.
6 Because the O'Keefes' claims fail on their merits, I need not and do not address whether they had standing to bring them. See Mostyn v. Dep't of Envtl. Protection, 83 Mass. App. Ct. 788, 792 & 792 n.12 (2013); Powers v. Falmouth Zoning Bd. of Appeals, 89 Mass. App. Ct. 1134, 2016 WL 4070627 at *2 n.9 (July 29, 2016) (Mem. & Order Pursuant to Rule 1:28).
7 A woman in her 20s.
8 The O'Keefes also own the wooded conservation area to the west of the Sullivan house. See Ex. 1.
9 Sabrina's becoming six months old (and thus deemed a “dog”; dogs less than six months old are considered “puppies”) triggered the need for the special permit at issue in this case. See Sudbury Gen. Bylaws, Art. V, § 3–3.
10 To put this in context, the Town does not consider a barking dog a “nuisance” unless it repeatedly barks “excessively.” See Gen Bylaws, Art. V, § 3–13. The standard the town applies in judging whether barking is “excessive” or “disturbs the peace” is whether the dog barks persistently for 40 minutes or more. See testimony of Animal Control Officer Jennifer Condon, Trial Tr. Vol. 1 at 157 (May 24, 2016). A dog must bark continuously for more than five minutes before the Animal Control Officer or the police will respond to a complaint, even if the barking occurs after 10:00 p.m. and before 7:00 a.m. See id. at 166.
Ms. O'Keefe could cite to only one occasion in the five years Ms. Sullivan has been her neighbor when she heard one of Ms. Sullivan's dogs barking for more than a few seconds—a single occasion, shortly after 10:00 p.m., when one of the dogs barked for approximately 30 seconds. What caused the barking is unknown.
11 Officer Condon also works as an Animal Inspector for the Commonwealth of Massachusetts and, in addition to Sudbury, is the Animal Control Officer in Maynard, Concord, Lincoln, Wayland, Northborough, Southborough, and Hudson.
12 The police notify Officer Condon of all animal-related complaints.
13 Trial Tr., Vol. 1 at 153.
14 Trial Tr., Vol. 1 at 154.
15 The questions about the dogs that were raised by the neighbors at the special permit hearing were addressed to the questioners' satisfaction in the board's Decision. See Zoning Board of Appeals, Notice of Decision (Jan. 16, 2015).
16 He has heard Ms. Clifford's dog, Rosie, barking, but never Ms. Sullivan's.
17 Under the General Bylaw, Art. V, § 3–3, a “kennel” is:
One (1) pack or collection [of dogs] on a single premises, whether maintained for breeding, boarding, sale, training, hunting, or other purposes, and including any shop where dogs are on sale, and also including every pack or collection of four (4) or more dogs, six months old or older, owned or kept by a person on a single premises, irrespective of the purpose for which they are maintained.
18 See n. 10, supra.
19 Its specific findings were as follows:
The use is allowed in all districts by Special Permit from the Board of Appeals. The Board finds the use to be in harmony with the general purpose and intent of the Bylaw. It is in an appropriate location, is not detrimental to the neighborhood and does not by its presence significantly alter the character of the zoning district. The animals are restricted to the area as shown in the plot plan which is made part of this decision to ensure that the use will not be offensive to the adjoining zoning districts or neighboring properties. Due to the support from neighbors and an excellent review by the Animal Control Officer, the Board finds that a special permit would be appropriate.
20 As previously noted, they also contend that Ms. Sullivan's mother's dog Regis, an occasional visitor to Ms. Sullivan's home, is effectively a “fifth” dog on the property. I find and rule otherwise. Regis lives and is registered elsewhere, is only a daytime visitor to the Sullivan home (and then only in the late morning/early afternoon), has stayed overnight only twice, and is thus not within the permit's four-dog limitation. See the Facts section, supra.
21 See Special Permit condition 2.
22 See Special Permit condition 3, prohibiting outdoor kennel facilities.
23 See Special Permit condition 4. Ms. Sullivan's activities with the Eurasier Society are not commercial in nature.
24 See Special Permit condition 5.
25 Board decisions, like contracts, are to be given a common sense, reasonable, and practical interpretation. See Sullivan v. Southland Life Ins. Co., 67 Mass. App. Ct. 439, 442 (2006). People tend to be friends with those with common interests. Dog owners are often friends with other dog owners. The Board's decision can only reasonably be read as reflecting this.
26 Relations between the two sides are such that the Amended Settlement Agreement even addresses the situations under which the parties' children may go on the other's property to retrieve stray balls and other toys.
27 The agreed $500 sanction for doing so without such prior notification if no citation is issued remains enforceable, as does the provision stating that “three (3) or more of said damage assessments in a two (2) year span will be considered a breach of this agreement.”