Lions And Turtles And Bearded Dragons, Oh My!

Fleming v. Zoning Bd. of Appeals of Oxford, 103 Mass. App. Ct. 1128 (2024) In Fleming, the Massachusetts Appeals Court grappled with some scaley zoning issues...
United States Real Estate and Construction
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Fleming v. Zoning Bd. of Appeals of Oxford, 103 Mass. App. Ct. 1128 (2024) In Fleming, the Massachusetts Appeals Court grappled with some scaley zoning issues arising out of personal ownership of 460 reptiles. In this case, the zoning enforcement officer of the Town of Oxford issued a cease-and-desist order to a property owner (Fleming), citing violations of the Town's zoning bylaw. Fleming owned 400 bearded dragons (which he was breeding and selling) and sixty turtles (which he was breeding) in a residential zone. Fleming appealed to the Oxford Zoning Board of Appeals, which affirmed cease-and-desist order; and then to the Land Court, which also affirmed. 

On appeal to the Massachusetts Appeals Court, Fleming argued that his breeding and sale operation: (1) was an as-of-right “agriculture” use; (2) did not offend the town's home occupation bylaw; and (3) was exempt from applicable bylaws because the bearded dragons qualify as “customary household pets.” The Appeals Court disagreed. 

First, the Court observed that the breeding of reptiles does not constitute “agriculture” under the Town's bylaw, nor under G. L. c. 40A, § 3. The bylaw contains no definition of agriculture, and therefore the Board was entitled to adopt any reasonable interpretation of that term – including an interpretation that excluded mass reptile ownership and breeding. Further, although G. L. c. 40A, § 3 includes “livestock” in its definition of “agriculture,” “bearded dragons and turtles are a far cry from the animals traditionally found on working farms -- such as horses, dogs, cattle, pigs, and goats -- and contemplated by Massachusetts law.” Fleming, at 3. 

Second, the Court upheld the Board's determination that Fleming violated the Town's home occupation bylaw. Fleming was cited under both Sections 2.1.3 and 2.1.6 of Chapter III of Oxford's zoning bylaw. Section 2.1.3 prohibits home occupations that may create a hazard or become a nuisance. Section 2.1.6 prohibits home occupations that use more than twenty-five percent of the net floor area of the dwelling. Here, Fleming challenged the zoning enforcement officer's estimation that his breeding and sale business used approximately fifty-six percent of the total floor area of the property, but he never challenged the zoning enforcement officer's finding that his breeding and sale business created a hazard or nuisance. As a result, Fleming waived any challenge to the Town's invocation of Chapter 2.1.3.

Finally, the Court upheld the Board's determinations that bearded dragons are not customary pets in the Town and were not kept as pets on Fleming's property. Similarly, the sheer number of turtles also indicated that they were not kept as pets. As the Court put it “it was reasonable for the board to decide that keeping breeding turtles by the dozens and breeding bearded dragons by the hundreds was not keeping the animals as customary household pets.” Id., at 4. 

Fleming  reminds us that Courts are likely to show great deference to local zoning authorities when interpreting their own bylaws. Regulation of pet ownership and breeding is no exception.

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