Municipal Ordinances: Related Cases
|Akron ex rel. Christman-Resch v. Akron||825 N.E.2d 189 (Ohio, 2005)||
City of Akron, Ohio cat owners filed suit against city, its mayor, and city council president, seeking declaratory judgment that new city code sections, relating to the trapping and euthanization of free-roaming cats, were unconstitutional. After the Court of Common Pleas, Summit County granted summary judgment to defendants, the cat owners appealed. The Court of Appeals held that the city's ordinances relating to the trapping and euthanization of free-roaming cats did not violate cat owners' substantive due process rights. Further, the ordinances which allowed a cat to be euthanized after three business days following the date of impoundment, did not violate cat owners' procedural due process rights or right to equal protection. Finally, the ordinances, which allowed city to seize free-roaming cats in response to complaints, did not violate the Fourth Amendment and city's actions were covered by sovereign immunity.
|American Dog Owners Ass'n v. City of Yakima||777 P.2d 1046 (Wash.1989)||
In this Washington case, plaintiff brought suit against the City of Yakima challenging an ordinance that banned “pit bulls” dogs. The Superior Court, Yakima County, granted city's motion for summary judgment, and plaintiffs appealed. Plaintiffs first argued that the ordinance is vague because a person of ordinary intelligence cannot tell what is prohibited. The Supreme Court disagreed, finding that the City used adequate standards for identification in the professional standards and illustrations to show that a particular dog meets the professional standard. Thus, the Court found that the ordinance gave sufficient notice of what was conduct prohibited. Summary judgment for the City was affirmed.
|American Dog Owners Ass'n, Inc. v. Dade County, Fla.||728 F.Supp. 1533 (S.D.Fla.,1989)||
Associations of dog owners sued Dade, County, Florida seeking declaratory judgment that an ordinance that regulated “pit bull” dogs was unconstitutionally vague. Plaintiffs contend that there is no such breed as a pit bull, but rather a three breeds that this ordinance has mistakenly lumped together. The District Court held that ordinance sufficiently defined “pit bull” dogs by specifically referencing three breeds recognized by kennel clubs, including a description of the characteristics of such dogs, and provided a mechanism for verification of whether a particular dog was included. The uncontradicted testimony of the various veterinarians reflected that most dog owners know the breed of their dog and that most dog owners look for and select a dog of a particular breed.
|Barnes v. City of Anderson||642 N.E.2d 1004 (Ind.App. 2 Dist. 1994)||
Virginia Barnes and Jan Swearingen appealed a trial court's decision in favor of the City of Anderson, Ind., granting a permanent injunction enjoining the women from keeping and maintaining Swearingen's pet Vietnamese pot-belly pig, Sassy, and ordering Sassy's removal from the residence. Appeals Court found for pig owner, holding that the phrase "raising or breeding" in an Anderson livestock ordinance refers to a commercial enterprise and not to the keeping of pigs as pets.
|Becker v. State Farm Mut. Auto. Ins. Co.||416 N.W.2d 906 (Wis.,1987)||
Motorist sued dog owner after he was injured in a car accident allegedly caused by dog. The Court of Appeals held that the “injury by dog” statute creates strict liability for any injury or damage caused by dog if owner was negligent (with public policy exceptions). Here, the dog owner was not strictly liable because he was not negligent when his dog escaped from its enclosure.
|Bloomfield Estates Improvement Ass'n, Inc. v. City of Birmingham||737 N.W.2d 670 (2007)||
In this Michigan case, a property association brought an action against the city of Birmingham to enforce a deed restriction. The association alleged that the city's plan to build a dog park violated the residential use restriction in the deed. The Circuit Court of Oakland County granted the city's motion for summary disposition; the Court of Appeals reversed. The Supreme Court held that the city's use of the lot as a “dog park" (a fenced area where dogs could roam unleashed with their owners) did indeed violate the deed restriction limiting use of land to “strictly residential purposes only.” Further, despite the association's failure to contest the previous use of the land as a vacant park, the association could contest the dog park violation because the former use was deemed a "less serious" violation.
|Britton v. Bruin||Not Reported in P.3d, 2016 WL 1019213 (N.M. Ct. App., 2016)||In this case, plaintiff appealed a decision by the district court denying her petition for a writ of mandamus. Plaintiff petitioned the court for a writ of mandamus to stop the City of Albuquerque's effort to control a large population of feral cats in its metropolitan area by “trapping, neutering them, and then returning them” to the location at which they were found. The district court denied the petition for a writ of mandamus because the court held that there was “a plain, speedy and adequate remedy in the ordinary course of the law.” Also, the court held that because the city’s program did not result in any unconstitutional action, the writ of mandamus was not appropriate. The court affirmed the district court’s ruling, looking only at whether or not there was “a plain, speedy and adequate remedy in the ordinary course of the law.” The court did not address the issue of whether or not the city’s population control effort was appropriate and should continue. The district court's order denying Petitioner's application for a writ of mandamus is affirmed.|
|City of Columbiana v. Simpson||--- N.E.3d ----, 2019 WL 4897158 (Ohio Ct. App., 2019)||Richard G. Simpson, Appellant, lived in a residential district in Columbiana, Ohio. Simpson kept eight hens, a chicken coop, and an enclosure on his property for approximately seven years. On July of 2016, Simpson was informed that keeping chickens in the district he lived in was a zoning violation, however, Simpson found no prohibition in the Code regarding the keeping of chickens in a residential district. The city sent Simpson violation notices and instructed him to remove the chickens from the property. Simpson appealed the violation to the Planning Committee. On June 20, 2017 the City Council voted to place a resolution on the ballot for voters to decide whether chickens could be kept in residential districts. The resolution failed at the general election. A second notice was sent to Simpson and Simpson refused to remove the chickens from his property. The City instituted an action for declaratory judgment and injunctive relief on March 13, 2018. The trial court held that the keeping of chickens was prohibited in the City’s residential districts and that the city ordinances were valid on their face and were not arbitrarily or capriciously applied. Simpson appealed. Simpson argued that keeping the chickens did not constitute an agricultural use or poultry husbandry because he kept them as a hobby and therefore does not violate any of the city ordinances. The Court did not agree and concluded that the keeping of chickens fell within the definition of agriculture and was, therefore, prohibited based on the ordinances. Simpson next argued that since he acquired the chicken and coop prior to the City applying the prohibitions, it was a legal non-conforming use and that the zoning code contained no language that would have put him on notice that such property was not permitted on his real property. The Court concluded that there was no error by the trial court in holding that Simpson’s use of his land was not a legally conforming use. Finally, Simpson argued that the one of the city ordinances was arbitrary and unreasonable because there was no evidence of the chickens, coup, or enclosure constituting a nuisance. The Court concluded that a city is not required to show that a property owner’s proposed use constitutes a nuisance in order to establish the constitutionality of the ordinance. The Court found that the ordinance was neither arbitrary nor unreasonable and bears a substantial relation to the public health. The ordinance was a valid exercise of the City’s police power. The Court ultimately held that the City ordinance prohibited the keeping of chickens in residential districts. The prohibition was inferred from reading the ordinance in concert with other Code sections. The judgment of the trial court was affirmed.|
|City of La Marque v. Braskey||216 S.W.3d 861 (Tex. Ct. App. 2007)||
A city's ordinance did not allow a kennel, defined as a place containing more than four dogs and cats, to be operated within 100 feet of a residence, school, or church. A woman kept as many as 100 cats at a time in a shelter within 100 feet of three homes, and she was criminally charged under the ordinance. The court found that the ordinance did not violate the plaintiff's constitutional rights because there was no right to use her property in any manner that she chose.
|City of Marion v. Schoenwald||631 N.W.2d 213 (S.D.,2001)||
To keep excessive numbers of large dogs from becoming a public nuisance, the City of Marion, South Dakota passed an ordinance that, among other things, limited households to four dogs, only two of which could weigh over 25 pounds. Schoenwald owned three dogs: one shepherd-collie mix weighing 75 pounds and two golden retrievers, weighing 30 pounds and 20 pounds. She was then notified that by housing three dogs weighing over 25 pounds she was in violation of the ordinance. She failed to comply with the City's order to remove one dog and was issued a citation. The Supreme Court reversed the lower court's ruling in Schoenwald's favor and found that South Dakota law permits municipalities broad power to regulate the keeping of dogs; thus the weight limitation included in the City's comprehensive pet ordinance was within its authority.
|City of Richardson v. Responsible Dog Owners of Texas||794 S.W.2d 17 (Tex. 1990).||
City's animal control ordinance banning the keeping of pit bulls was not preempted by state Penal Code provisions governing the keeping of vicious dogs.
|City of Rolling Meadows v. Kyle||494 N.E.2d 766 (Ill.App. 1 Dist.,1986)||
In this Illinois case, the Plaintiff, City of Rolling Meadows, brought an action against defendant for keeping an undomesticated animal, a monkey, in her home in violation of a city ordinance. The lower court entered judgment in favor of plaintiff. At issue on appeal is the construction and application to be given the phrase “other than domesticated house pets” as set forth in the ordinance in question. The court was required to adopt the common and approved usage of the term 'domesticated.' The court concluded that the evidence presented established as a matter of law that Yondi is a domesticated animal. Thus, the trial court erred in finding defendant in violation of ordinance 4-28 because the monkey was a domesticated house pet.
|City of Water Valley v. Trusty||343 So.2d 471 (Miss. 1977)||Appellants filed b ill of complaint seeking to enjoin enforcement of city's dog leash ordinance. The court summarily held that Mississippi Code Annotated s 21-19-9 (1972) authorizes municipalities to regulate the running at large of animals of all kinds. The ordinance here was enacted pursuant to that authority, it meets the constitutional requirements, and the demurrer should have been sustained on that question.|
|Columbus v. Kim||886 N.E.2d 217 (Ohio, 2008)||
An Ohio dog owner was convicted in the Municipal Court, Franklin County, of harboring an unreasonably loud or disturbing animal as prohibited by city ordinance. On appeal to the Supreme Court, the owner contended that the term “unreasonable” in the ordinance “does not provide enough explanation to allow the average person to know what behavior is permissible.” The Supreme Court held that the ordinance was not unconstitutionally vague on its face, and was not unconstitutionally vague as applied.
|Com. v. Raban||31 A.3d 699 (Pa.Super., 2011)||
Defendant was convicted of violating the dog law for failing to properly confine his dog after it escaped from his property and attacked another dog. On appeal, the Superior Court affirmed, holding that 1) scienter was not a necessary element of the violation because the statutory mandate to confine a dog was stated absolutely, and 2) a dog attack is not a de minimis infraction that would preclude a conviction.
|Commonwealth v. Gardner||74 Pa. D. & C. 539 (Pa. 1950)||
In this Pennsylvania case, a new resident moved next door to a woman who had been operating a kennel for years. He then complained to the borough council which then amended an ordinance such that the keeping of more than six dogs over six months of age was made a nuisance per se, illegal and a violation of the ordinance. The court held that it did not believe that the borough council or the court had the power or the authority to determine that more than a certain number is a nuisance per se, and less than that number is a nuisance only upon proof of the same being a nuisance. "In other words, it is our opinion that the borough council, in the exercise of its police power may not unreasonably and arbitrarily prohibit things which were not nuisances at common law, and their declaration in an ordinance that a thing is a public nuisance does not make it so, if it is not a nuisance in fact . . ."
|Concerned Dog Owners of California v. City of Los Angeles||123 Cal.Rptr.3d 774 (Cal.App.2 Dist., 2011)||
Dog owners mounted a constitutional challenge to a Los Angeles municipal ordinance that required all dogs and cats within the city to be sterilized. The Court of Appeal held that the ordinance did not violate the owners’ freedom of association rights, free speech rights. or equal protection rights. The court held that it was not unconstitutionally vague, was not outside of the city's police powers, did not vest unfettered discretion in city officials, did not constitute an unconstitutional prior restraint or an unconstitutional taking. Finally, the law did not violate individual liberties under the California Constitution.
|Cottongame v. State||2014 WL 3536801 (Tex. App. 2014), unpublished||Despite an ordinance restricting the number of cats a person can own to three unless a permit was obtained, an officer decided not to enforce the ordinance against the appellant because she was helping with the feral-cat problem in the city and because “she was ... attempting to bring into compliance [her] animal rescue.” When the officer left his job, however, a neighbor complained and an investigation took place. The investigating officer noted everything in the house was covered in cat litter, there was no carpet in the home, and cat urine was on the living-room floor. The smell of cat urine and feces also sickened the officer to the point that he had to leave the house to get fresh air. The State filed a complaint alleging Appellant's violation of the ordinance. A jury found Appellant guilty of the offense as alleged in the complaint and assessed her punishment at $75 plus court costs. Appellant appealed from her conviction for violating a city ordinance regarding the number of animals that may be kept without a permit. In her first issue, the appellant asserted that her conviction violated the Privileges or Immunities Clause of the Fourteenth Amendment because the city “selectively enforced its purported ordinance that prohibits any person from having possession of more than three cats without a permit.” The court, however, found that there was no evidence before the trial court indicating that appellant was singled out for enforcement or that her selection for enforcement was based on anything other than a valid citizen complaint. In her second issue, the appellant argued that the evidence was insufficient to support her conviction. The court, however, found that the evidence was sufficient to support the jury's finding that the appellant was in violation of the ordinance. The lower court’s decision was therefore affirmed.|
|Davis v. Animal ControlCity of Evansville||948 N.E.2d 1161 (Ind., 2011)||
Dog attack victim sued city and its animal control department, seeking damages for injuries he sustained from a dog attack in his neighborhood. The victim claimed that the city failed to enforce its animal control ordinance. The Supreme Court held that city and its animal control department had law enforcement immunity because the Tort Claims Act provided immunity to governmental entities for any loss due to failure to enforce a law.
|Dehart v. Town of Austin||39 F.3d 718 (7th Cir. 1994)||
The breeder was in the business of buying, breeding, raising, and selling of exotic and wild animals. The town passed an ordinance making it unlawful to keep certain wild animals, and the breeder filed suit challenging the constitutionality of a local ordinance. On appeal, the court affirmed the grant of summary judgment in favor of the town because: (1) the ordinance was not preempted by the Animal Welfare Act; (2) the ordinance was not an impermissible attempt to regulate interstate commerce in violation of the Commerce Clause; and (3) the town did not deprive him of his property interest in his federal and state licenses without due process.
|Dog Federation of Wisconsin, Inc. v. City of South Milwaukee||178 Wis.2d 353, 504 N.W.2d 375 (Wis.App.,1993)||
This appeal is by the Dog Federation of Wisconsin and others who contest a City of South Milwaukee ordinance that imposes restrictions on the ownership and keeping of “pit bulls.” The Federation claims that the “pit bull” aspects of the ordinance are facially invalid because: the definition of “pit bull” is impermissibly vague; the ordinance is overbroad; and the ordinance violates their right to equal protection. The court found that reference to recognized breeds provides sufficient specifics to withstand a vagueness challenge. With regard to equal protection, the court held that the ordinance is founded on “substantial distinctions” between the breeds of dog covered by the ordinance and other breeds of dog. Moreover, the ordinance is “germane” to the underlying purpose of the ordinance to protect persons and animals from dangerous dogs. Finally, the ordinance applies equally to the affected class of persons owning or keeping pit bulls.
|Eldorado Community Improvement Association Inc. v. Billings||374 P.3d 737 (N.M. Ct. App., 2016)||In this case, Eldorado Subdivision sued some residents who kept hens as pets at their homes. The subdivision had a covenant (Section 11) that disallowed “animals, birds, or poultry” on residents' lots unless kept as “recognized household pets." The defendant-residents claimed that their hens were pets and thus met the household pet exception in the covenant. The lower court agreed with the subdivision and ordered the owners to remove the hens. On appeal, this court looked at the actual language of the covenant, which the court did find to be "unclear and ambiguous." However, the court found that if the residents did not want poultry as household pets, it is reasonable to assume the residents would have removed language that anticipates poultry as household pets. The court here found that the lower court applied the wrong precedent and should have applied a case that favored free use of the land because the covenant is ambiguous. The ruling should not be based on what the developer of the subdivision may have had in mind in writing Section 11 or how community members would interpret its meaning. Instead, the court found that the Section 11 does not disallow hens as pets and rebuffed plaintiffs' "Chicken Little-esque view" that "the sky will fall" if chickens were permitted as pets. In fact, the court observed that if the lot owners want a different result, they must change Section 11 through the election process set out in the covenants. The judgment of the lower court was reversed.|
|Eureka Township v. Petter||Not Reported in N.W.2d, 2017 WL 3863144 (Minn.Ct.App. 2017)||In this case, the Township brought action against property owners to enjoin the owners from possessing exotic animals on the property, operating an animal exhibition on the property, and operating a business pelting exotic animals on the property. The District Court invalidated the township's exotic animal ordinance as conflicting with state statute, determined that an animal exhibition was not a permissible use under the township's zoning ordinance, and permanently enjoined the owners from operating an animal exhibition and conducting any retail sales, except for horticultural products produced on the property. This court held that the exotic animals ordinance did not conflict with state statute nor was it preempted. Further, this court held that the property owners' grandfathered possession and exhibition of exotic animals was limited to one wolf; animal control officer exception to exotic animal possession was limited to temporary possession of exotic animals in conjunction with owner's work as an animal control officer; township was not estopped from enforcing its exotic animal ordinance; and interpreting zoning ordinance's language to require sale of horticultural products from the land itself was not inherently unreasonable. Affirmed in part, reversed in part, and remanded; motion dismissed.|
|Francis v. City of Indianapolis||958 N.E.2d 816 (Ind. Ct. App. 2011, table, unpublished)||A dog rescue organization was cited with a violation of the city code for having a dog at large. One rescue dog escaped and lunged at a neighbor. Francis argued that the trial court erred in applying strict liability, challenged the sufficiency of the evidence, and challenged the constitutionality of the municipal ordinance. The trial court also found that a violation of the ordinance also imposed restrictions on Francis; she could no longer operate the animal rescue shelter and could only own or keep two dogs. The judgment of the trial court was affirmed.|
|Garza v. State||2007 Tex. App. LEXIS 8953||Carrollton, Texas municipal code prohibited the keeping of more than three pets on property within the city limits. Yvette Garza, a member of an animal rescue organization, challenged the determination that she had violated the city code by keeping more than three dogs. She argued that the code was unconstitutionally vague and that her actions were necessary. The court held that although the term "keep" was not defined in the statute, a person of ordinary intelligence would understand the law because "keep" has a common sense meaning. Garza also failed to produce evidence proving when the scheduled euthanasia of the dogs was going to occur, she therefore failed to establish the elements of her necessity defense.|
|Goodell v. Humboldt County||575 N.W.29 486 (Iowa 1998)||
The issue of county versus local control over livestock regulations came to a head when the Iowa Supreme Court invalidated a series of ordinances that had been enacted by the Humboldt County Board of Supervisors to add additional regulations to the livestock industry and to address problems created by confined animal feeding operations in the county. The court ruled that the ordinances were inconsistent with state law and invalid under the doctrine of implied preemption.
|Greater Houston German Shepherd Dog Rescue, Inc. v. Lira||447 S.W.3d 365 (Tex. App. 2014), reh'g overruled (Oct. 16, 2014)||A German Shepherd dog owned by the appellees escaped through an open garage door of the appellees' home. Animal control impounded the dog for violations of city ordinances. When the appellees did not redeem the dog, instead of being euthanized, animal control turned the dog over to a rescue society for adoption. The dog was then sterilized and micro chipped. After learning what happened, appellees made a request to transfer the dog to them. When they were refused, the appellees filed suit. The trial court ruled in favor of the appellees on their conversion cause of action and their requests for declaratory and injunctive relief, which ordered appellant to turn the dog over to the appellees. On appeal, the court held that since the appellees did not redeem the dog in compliance with city ordinances, they did not have an entitlement to the dog, which was required to establish a conversion claim. Further, since the rescue organization was a recognized city rescue partner, animal control could lawfully transfer the dog to the rescue organization. The court also held the ordinance setting forth an additional 30-day redemption period did not apply to owners. The appeals court therefore reversed the judgment of the trial court, rendered judgment that appellees take nothing, and remanded to the trial court for further proceedings consistent with this opinion, including an appropriate order restoring possession of the dog to appellant.|
|Hatfield v. Bd. of Supervisors of Madison Cty.||235 So.3d 18 (Miss. Aug. 10, 2017)||This Mississippi Supreme Court decision considers the construction of a zoning ordinance that prohibits the "keeping or raising poultry" in the "R-1 Residential District" of Madison County. The property owner, Hatfield, was found to be violating R-1 by the Madison County Board of Supervisors after county officials found around 60 "ducks, geese and other fowl" on this property. Hatfield appealed this decision to the Circuit Court as arbitrary and capricious based on an unconstitutionally vague ordinance section. The Circuit Court, as the reviewing appellate body for the ordinance violation, found the Board's decision was supported by evidence and not arbitrary or capricious. On appeal by Hatfield, the Supreme Court first observed that there are two districts in appellant's subdivision: Agricultural and Residential. In the Agricultural Districts, breeding, raising, and feeding fowl is an expressly permitted use. Appellant lives the zoned Residential Estate District. While the R-1 zoning allows "livestock" and "grazing livestock" on tracts of land one acre or greater, it does not allow the breeding, raising, and feeding chickens, ducks, or other fowl as a permitted use. Hatfield suggested that grazing/livestock section (Section 601) could be interpreted to include poultry, fowl, and/or birds. However, the Supreme Court found that position unreasonable since the examples listed in the code section are "obviously limited to large, four-legged, hoofed animals." This is further supported by the fact raising fowl is expressly permitted in one district, but not the other. Thus, the Ordinance was sufficiently clear and not manifestly unreasonable. The circuit court's decision was affirmed.|
|Hauser v. Ventura County Board of Supervisors||229 Cal.Rptr.3d 159 (Cal. Ct. App., 2018)||The plaintiff in this case applied for a conditional use permit (CUP) to keep up to five tigers on her property, but the county planning commission and board of supervisors denied her application. In her application, plaintiff indicates that the project would include three tiger enclosures, a 13,500-square-foot arena with a roof over 14 feet in height at its highest point, with the area surrounded by an eight-foot-high chain link fence encompassing over seven acres. The captive tigers would be used in the entertainment industry: movie sets, television commercials, and still photography. In denying the application, the Board found that the plaintiff failed to prove two elements necessary for a CUP: the project is compatible with the planned uses in the general area, and the project is not detrimental to the public interest, health, safety or welfare. The court noted that plaintiff bears the burden of demonstrating her entitlement to the permit. In fact, the court noted that while plaintiff claims "an unblemished safety record," she submitted videos showing tigers "roaming freely in the backyard of her Beverly Hills home" and tigers posing with plaintiff and her sister on the beach. The court observed that, "[h]er well-intentioned desire to own [the tigers] does not trump her neighbors' right to safety and peace of mind." The judgment of the lower court was affirmed.|
|Hendricks v. Barlow||656 N.E.2d 481 (Ind. 1995)||
Landowners were held in violation of a zoning regulation, established under a Hendricks County ordinance, which forbade having wild animals residing on residential property. The trial court held that the county could not pass such a law, since it would be preempted by state and federal law. However, on appeal, this Court found that federal (the AWA) and state law did not preempt the County from passing such ordinances. The trial court erroneously attempted to interpret the law when it was not ambiguous, and, thus, preemption by state and federal law should not have been found. Thus, the zoning regulation was permitted.
|Hoesch v. Broward County||53 So.3d 1177 (Fla.App. 4 Dist., 2011)||
A Broward County, Florida ordinance defines a dangerous dog as “any dog that . . . [h]as killed or caused the death of a domestic animal in one incident.” Plaintiff Brian Hoesch’s dog escaped from Hoesch’s backyard and attacked and killed a neighbor’s cat. Prior to this incident, the dog had never been declared “dangerous” by any governmental authority. Hoesch requested a hearing after Broward’s animal control division notified Hoesch of its intent to destroy his dog. After a judgment in favor of Broward County, Hoesch contends that both county ordinances conflict with state law, section 767.11(1)(b), which defines a “dangerous dog” as any dog that “[h]as more than once severely injured or killed a domestic animal . . . .” The District Court of Appeal of Florida, Fourth District, concluded “that Broward County ordinance sections 4-2(k)(2) and 4-12(j)(2) are null and void insofar as they conflict with state law.”
|Hood River County v. Mazzara||89 P.3d1195 (Or. 2004)||
In this Oregon case, the defendant appealed a conviction for violating Hood River County Ordinances (HRCO) under which the owner of a dog may not allow it "to become a public nuisance * * * " by "[d]isturb[ing] any person by frequent or prolonged noises[.]" (Her dog was reported to have barked for six straight hours.) The defendant argued that the ordinances are invalid as applied to her because ORS 30.935 immunizes farm practices from the application of local government ordinances. The defendant operated a farm with a herd of 60 cashmere and angora goats on land that bordered a national forest and used her dogs to keep predators at bay. The Court of Appeals noted that once defendant raised the defense of the right to farm practice, the county had the burden of disproving it, which it failed to do. Further, the trial court erred by disregarding uncontested facts that established defendant's immunity.
|Humane Society-Western Region v. Snohomish County||2007 WL 2404619 (W.D. Wash)||
Plaintiff Humane Society Western Region (d/b/a "Happy Paws Farm") filed this lawsuit against Snohomish County alleging provisions of the county code regulating barking are unconstitutionally vague in violation of the state and federal constitutions, and that the SCC provision governing the temporary housing of animals in shelters violates its federal constitutional right to substantive due process. Plaintiff argued that the noise ordinances invite subjective evaluation resulting in arbitrary enforcement because the code contains no reference to identifiable levels of noise, only to noises that are repetitive. The absence of identifiable levels of noise, or decibel levels, does not render the noise ordinances unconstitutionally vague. Plaintiff fails to demonstrate that this method is not easily understood by individuals of ordinary intelligence or that it fails to protect against arbitrary enforcement. This opinion was Affirmed in Part, Reversed in Part by Humane Society Western Region v. Snohomish County, 357 Fed.Appx. 144 (9th Cir., 2009).
|Idaho Dairymen's Ass'n, Inc. v. Gooding County||227 P.3d 907 (Idaho 2010)||
After Gooding County adopted an ordinance regulating confined animal feeding operations (CAFOs), cattle ranching and dairy associations brought suit challenging the constitutionality and validity of provisions within the ordinance and seeking declaratory and injunctive relief. The district court entered summary judgment in favor of the county, and the associations appealed. The Idaho Supreme Court affirmed the district court's findings.
|Jefferson v. Mirando||719 N.E.2d 1074 (Ohio Co.,1999)||
In this Ohio case, the defendant was charged with violating ordinance setting maximum number of dogs or cats that a person could "harbor" per family dwelling unit. The court first observed that the village of Jefferson's ordinance benefits from a strong presumption of constitutionality, and defendant Mirando bears the burden of demonstrating unconstitutionality of this ordinance beyond any remaining fair debate on the issue. The court held that ordinance was not unconstitutionally vague and did not conflict with state statutes regulating kennels.
|Kanab City v. Popowich||194 P.3d 198, (Utah App.,2008)||
In this Utah case, the defendant appeals the decision of the district court finding him guilty on four counts of failing to maintain a city dog license and one count of running an illegal kennel. In December 2005, a Kanab City animal control officer responded to numerous complaints of barking dogs at Defendant's residence. This officer observed four dogs over the age of three months on the premises during two separate visits to Defendant's home that month and on subsequent random visits in the following months. On appeal, defendant argued that the city ordinance on which his conviction for operating an illegal kennel is based is unconstitutionally vague. This court disagreed, finding that an ordinary person reading the ordinance would understand that, in order to keep more than two dogs over the age of three months in the same residence, a citizen must register for a kennel permit.
|Luper v. City of Wasilla||215 P.3d 342 (Alaska,2009)||
Plaintiff appealed a grant of summary judgment in favor of the City of Wasilla, Alaska's enforcement action over zoning ordinances. The facts stem from the City's denial of plaintiff's application for a use permit in 2005 to run an eighteen-dog kennel. Plaintiff argued on appeal that Wasilla's former three-dog limit infringed on her property rights in both her land and her dog. This court agreed with the lower court that the provision here bore a "fair and substantial relationship" the government purposes of controlling dog noise, reducing dog odor and pollution, and preventing loose dogs. Further, the court found that it was not reasonable for the plaintiff to rely on the city clerk's statement that she only needed a kennel license to operate a hobby kennel.
|McCall v. Par. of Jefferson||178 So. 3d 174 (La.App. 5 Cir. 2015)||Defendant appeals a judgment from the 24th Judicial District Court (JDC) for violations of the Jefferson Parish Code. In 2014, a parish humane officer visited defendant's residence and found over 15 dogs in the yard, some of which were chained up and others who displayed injuries. Initially, defendant received a warning on the failure to vaccinate charges as long as he agreed to spay/neuter the animals. Defendant failed to do so and was again found to have numerous chained dogs that did not have adequate food, water, shelter, or veterinary care. He was ordered to surrender all dogs in his possession and was assessed a suspended $1,500 fine. On appeal, defendant claims he was denied a fair hearing because he was denied the opportunity to cross-examine witnesses and present evidence. This court disagreed, finding that the JDC functioned as a court of appeal on the ordinance violations and could not receive new evidence. Before the JDC hearing, this court found defendant was afforded a hearing that met state and local laws. The JDC judgment was affirmed.|
|Merced v. Kasson||577 F.3d 578 (C.A.5 (Tex.),2009)||
Plaintiff José Merced, a Santeria Oba Oriate, or priest, brought action against the City of Euless alleging that city ordinances prohibiting the keeping of animals for slaughter and the slaughtering of animals prevented him from performing animal sacrifices essential to Santeria religious practice. The United States District Court for the Northern District of Texas ruled in favor of the city, but denied its request for attorney fees. The Court of Appeals reversed the decision in favor of the city and affirmed the denial of attorney fees. The court found that the city did not prove that the burden it placed on the plaintiff advanced a compelling interest and was the least restrictive means of doing so. In fact, the Court noted that prior to the ban, Merced had performed these sacrifices for sixteen years without creating health hazards or unduly harming any animals. The City's purported interest was further undermined by the fact that hunters are allowed to butcher dead animals at their homes. Thus, Euless failed to assert a compelling governmental interest in support of its ordinances that burden Merced's religious conduct.
|Missouri Pet Breeders Association v. County of Cook||106 F. Supp. 3d 908 (N.D. Ill. 2015)||Cook County passed an ordinance that required a “pet shop operator” to only sell animals obtained from a breeder that (among other requirements) held a USDA class “A” license and owned or possessed no more than 5 female dogs, cats, or rabbits capable of reproduction in any 12-month period. Plaintiffs, a professional pet organization and three Cook County pet shops and their owners, sued Cook County government officials, alleging that the ordinance violated the United States and Illinois Constitutions. Defendants moved to dismiss the action. After concluding that plaintiffs had standing to pursue all of their claims, with the exception of the Foreign Commerce Claim, the Court granted the defendants' motion to dismiss all claims, but gave Plaintiffs a chance to cure their complaint's defects by amendment.|
|MONICA NEWMAN, individually and on behalf of all similarly situated; MATTHEW KEITH DOUGLAS, individually and on behalf of all similarly situated; and RUBY JUDINE MALMAN, individually and on behalf of all similarly situated, Plaintiffs, v. CITY OF PAYETTE,||2015 WL 6159471 (D. Idaho, 2015)||District Court ruled City of Payette's pit bull ordinance's procedural aspects were unconstitutional, finding that the lack of hearing provisions for a dog that was impounded due to an attack or bite violated procedural due process. The court also found that forcing the dog owner to bear the burden of proving his or her dog's innocence violated due process. The court, however, found no constitutional infirmity with the notice procedure employed by Payette's pit bull ordinance, provided Payette adhered to Idaho Code § 25-2804. The court ordered Plaintiff Douglas’ Motion for Partial Summary Judgment to be granted in part and denied in part; the claims asserted against the city of Payette by Plaintiffs Monica Newman and Ruby Judine Malman to be dismissed without prejudice; and all claims asserted by Plaintiffs against the city of Fruitland to be dismissed without prejudice.|
|Morawek v. City of Bonney Lake||184 Wash. App. 487, 337 P.3d 1097 (2014)||A woman filed a complaint with the Bonney Lake animal control authority after her neighbor’s dog killed her cat. The animal control officer served plaintiff with paperwork stating that his dog satisfied the definition of a dangerous dog under the Bonney Lake Municipal Code because the dog had killed a domestic animal without provocation while off his owner's property. Plaintiff appealed the designation to the police chief, the city hearing examiner, and the superior court; all of which affirmed the designation. The Washington Court of Appeals, however, held that the hearing examiner's finding that the owner's dog killed the neighbor's cat without provocation was not supported by substantial evidence, as required to uphold a dangerous dog designation, even though the “location” element of the dangerous dog designation was satisfied. The dangerous dog designation was therefore reversed.|
|New York Pet Welfare Ass'n, Inc. v. City of New York||143 F.Supp.3d 50 (E.D. New York,2015)||
(Aff'd on appeal to 2nd Circuit: New York Pet Welfare Association, Inc. v. City of New York, 850 F.3d 79 (2d Cir. 2017). Plaintiffs, a non-profit group trade association of pet stores ("NYPWA"), dog and cat breeders and dealers, veterinarians, and pet owners, brought this action against New York City, the city council, and council members, alleging that defendants have adopted laws that violate the Supremacy Clause, the Commerce Clause, the Equal Protection Clause, and the Due Process Clause of the U.S. Constitution, as well as New York law that governs veterinary medicine, the treatment of animals, and equal protection. The challenged law relate to the sale of dogs and cats in the city that require pet stores to obtain pets from Class A USDA licensees in good standing and that the pet stores spay and neuter the pets before selling them. In rejecting NYPWA's federal preemption claim, the court found that the AWA specifically contemplates local regulation in § 2143(a)(8) and previous cases have found no conflict even where the local legislation bans what is otherwise allowed under the AWA. The court also found no conflict with state law (N.Y. Gen. Bus. § 753–d) or other laws concerning veterinary licensing, pet shops, and animal cruelty. In dismissing plaintiff's Equal Protection argument, the court was not persuaded that pet stores and shelters/rescues are "similarly situated" to support the claim. Additionally, the court found a rational basis to support any differential treatment. NYPWA also alleged that the Pet Shop Laws violate the dormant Commerce Clause, arguing that the laws impermissibly regulate extraterritorially and favor local interests. The court found that even if plaintiff's factual allegations were true, the law was not economic protectionism, but an attempt to curb problems with homeless animals and euthanasia. Finally, the court found not due process violations (substantive or procedural) where there is no interference with a constitutionally protected right. NYPWA's motion to dismiss the claims is granted and the motion for preliminary injunction was denied.
|O'Keefe v. Stevenson||Not Reported in N.E.3d, 2017 WL 3776595 (Mass. Land Ct. Aug. 22, 2017)||In this case, the plaintiffs appealed a Zoning Board that granted their neighbor a special permit allowing four dogs to be kept at Ms. Sullivan's home. The dogs—pedigreed Eurasiers—are Ms. Sullivan's personal pets and live with Ms. Sullivan inside her house, have someone with them at all times, 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 permit has some conditions that must be met for the dogs to remain on the property, one of which is the dogs not become a nuisance. The court affirmed the grant of the special permit based on the testimony and exhibits admitted at trial after assessing the credibility, weight, and appropriate inferences to be drawn from that evidence. The Board's decision granting the special permit was AFFIRMED.|
|Palila v. Hawaii Dept. of Land and Natural Resources||Not Reported in F.Supp.2d, 2013 WL 1442485 (D.Hawai'i)||
Fearing potential prosecution under a county ordinance and a state statute for carrying out a Stipulated Order that protects an endangered species (the Palila), defendants, joined substantially by the plaintiffs, sought a motion for declaratory and injunctive relief. The district court granted the defendants’ motion because federal law, the Stipulated Order, preempted both state and county law. The court therefore stated that so long as defendants, or their duly-appointed agents, were acting to enforce the specific terms of the Stipulated Order, they may conduct an aerial sighting over the Palila's critical habitat and shoot any ungulates sighted in that area without fear of violating (1) Hawaii County Code §§ 14–111, –112, & 1–10(a); or (2) HRS § 263–10.
|Panattieri v. City of New York||53 Misc. 3d 865, 37 N.Y.S.3d 431 (N.Y. Sup. Ct. 2016)||
Ceasar, a mixed breed dog, was seized by police after he killed another dog and injured the other dogs’ owner. Petitioners, Kristina & Douglas Panattieri, owned Ceasar and demanded his return to their custody. They also challenged the determination by Respondent, Department of Health & Mental Hygiene (DOHMH), to execute Ceasar pursuant to the New York City Health Code (24 RCNY) § 161.07. The Petitioners argued that Ceasar’s execution would be unconstitutional under the City Code because it was preempted by the state statute, Agriculture & Markets Law § 123.The Supreme Court, New York County, denied their petition and held that the New York City Health Code was not preempted by the state statute. The Court reasoned that the Agriculture and Markets Law § 107(5), which governed licensing, identification, and control of dogs, expressly allowed municipalities to enact their own Codes governing dangerous dogs. However the City Codes were to incorporate standards that were as or more protective of public health and safety than those set forth in the state statute. The New York City Code met the requirement and was therefore not preempted by state law.
|Park Pet Shop, Inc. v. City of Chicago||872 F.3d 495 (7th Cir. 2017)||Local pet stores and breeders brought an action against the validity of a city ordinance limiting the sources from which they may obtain dogs, cats, and rabbits for resale. They stake their claim on the grounds that the ordinance goes beyond Chicago’s home-rule powers under the Illinois Constitution and violates the implied limits on the state power imposed by the Commerce Clause of the United States Constitution. Petitioners appeal the district court’s dismissal of case for failure to state a claim. The Court of Appeals affirmed, holding that the Illinois Constitution allows Chicago to regulate animal control and welfare concurrently with the state so long as no state statute specifically limits the municipality. Further, the court reject the argument that the ordinance discriminates against interstate commerce. The court of appeals affirmed the district court's dismissal of the suit for failure to state a claim.|
|People v. Strobridge||339 N.W.2d 531 (Mich.App.,1983)||
In this Michigan case, the defendant appealed his conviction of keeping more than three dogs on his premises without a kennel license in violation of Grandville ordinances, § 21, No. 159-A. On appeal, defendant asserted that the trial court improperly denied his “nonconforming use” defense; that is, he claimed the ordinance at issue was a zoning ordinance rather than a regulatory ordinance. Relying on a case that held that prior nonconforming use (where a person has been using property in a nonconforming way prior to the adoption of the zoning ordinance), the court found that indeed defendant was entitled to present such a defense, as he owned the dogs on the property prior to adoption of the ordinance. Defendant next argued that the trial court erred in ruling that the ordinance was a constitutional exercise of the city's police power. While the court observed that criminal ordinances are to be more strictly construed than ordinances involving a civil penalty, it still found that the ordinance at issue was a valid exercise of police power, especially considering that a previous case had upheld a similar ordinance that limited ownership to only two dogs.
|Peoria County v. Capitelli||494 N.E.2d 155 (Ill.App. 3 Dist.,1986)||
This Illinois case concerns the appeal of a conviction for allowing a cat to run at large in violation of an ordinance enacted by the plaintiff, Peoria County. The defendant contends on appeal that the county as a non-home-rule unit of government lacked the authority to enact the ordinance. The court disagreed, finding the counties were given the express power to establish animal pounds and to dispose of stray animals pursuant to the provisions of the Impounding and Disposition of Stray Animals Act which concerns pet dogs and cats, and the Illinois Animal Control Act, which deals with stray animal control, rabies protection, liability for animal bites and related topics. More interesting is the dissent's position, which finds that the statute makes no mention of the power to regulate cats. Moreover, there can be no logical implication of authority to regulate cats running-at-large from the delegation of authority to regulate dogs running-at-large.
|Perez v. County of Monterey||--- Cal.Rptr.3d ---- 2019 WL 621483 (Cal. Ct. App. Feb. 14, 2019)||In this California case, the plaintiffs sued to challenge the validity of the County of Monterey rooster-keeping ordinance, seeking a declaratory judgment that the law is unconstitutional. The ordinance limits residents to no more than four roosters on a single property without a rooster keeping permit and also describes care and keeping requirements. The trial court found that the ordinance did not violate the constitution and entered judgment for the City. Plaintiffs here appeal that decision, arguing that the ordinance: (1) takes property without compensation in violation of the Fifth Amendment to the United States Constitution; (2) infringes on Congress’ authority to regulate interstate commerce; (3) violates the Equal Protection clause of the Fourteenth Amendment to the United States Constitution; (4) is a prohibited bill of attainder; and (5) violates the rights to privacy and to possess property guaranteed by the California Constitution. With respect to the Fifth Amendment taking challenge, the court found that the regulatory takings argument failed because there is no evidence that the ordinance affected plaintiffs or that they even applied for or were eligible for a permit. As to the interstate commerce challenge, plaintiffs provided no evidence that the ordinance would cause excess roosters to be divested from owners and sold in commerce to support this claim. As to Equal Protection, the plaintiffs correctly assert that the ordinance treats people differently based on age (i.e., students engaged in 4-H or FFA activities are exempted from the four-rooster limitation). However, the court found that the county stated a legitimate objective of public health and safety and this differential treatment of a non-suspect class advances that interest. Finally, the court found the ordinance was not a bill of attainder since it prospectively regulates roosters and also that it does not violate California's right to privacy and property possession. Indeed, the court found that plaintiff did not identify a specific privacy interest implicated by the ordinance. Thus, the judgment was affirmed.|