355 Mass. 179

W. G. MacKenzie Hume vs. Building Inspector of Westford & another.

Middlesex.

December 6, 1968. —

January 7, 1969.

Present: Wilkins, C.J., Cutter, Kirk, Spiegel, & Reardon, JJ.

P. Harold Ready for the petitioner.

John L. Connell, Jr., Town Counsel, for the Building Inspector of Westford.

Cutter, J.

Dr. Hume, by petition for a writ of mandamus filed March 3, 1967, seeks to require the building inspector to prevent Ralph R. Rice from maintaining a kennel (alleged to be in violation of the Westford zoning by-law) upon his land. Rice has been permitted to intervene as a respondent. A Superior Court judge ordered the petition dismissed. Dr. Hume appealed from the judgment of dismissal. The evidence is reported.

Rice and Dr. Hume five on adjacent lots in a Residence A district. Rice at the time of trial was maintaining two kennels in eight rooms in his garage and, outside his garage, three runways each six feet wide and thirty feet long and *180an exercise yard 100 feet square. In the runways and exercise yard, dogs bred for show purposes were placed at certain times of day. Dr. Hume has frequently “complained of being disturbed by the barking of the Rice dogs in the daytime when they are kept in” the runways. At night the dogs are in a sound-proof garage. At the time of trial, Rice had six adult dogs and eight puppies, all “pure bred . . . Great Pyrenees Newfoundland dogs.” A year earlier Rice had twenty-three dogs on the premises.

The Rice land contains one and one-third acres with a frontage of about 157 feet on Depot Street. The Rice garage is less than fifty feet from the Rice-Hume boundary. Dr. Hume’s lot contains about one and one-eighth acres, with a frontage of about 172 feet, and his house is within twenty feet of the Rice-Hume boundary. On both lots most of the land lies to the rear of the houses and away from Depot Street. Pertinent provisions of the zoning by-law are summarized in the margin.1 Rice held a town kennel license to keep more than ten dogs. See G. L. c. 140, §§ 136A, 137A-137C, as amended.

Rice, over a period of seven years, has sold three or four puppies. He has made no sales since obtaining a kennel license in 1966. In seven years, he has given away thirty-four dogs and puppies. He has not operated his kennel as a *181commercial enterprise otherwise, unless raising dogs for show purposes is commercial.

The trial judge ruled that the by-law (fn. 1) “permits as an accessory use of residential property the keeping of three or more dogs for non-commercial, personal purposes,” and that, if the kennel “is in any way a nuisance,” Dr. Hume “has adequate remedies” under G. L. c. 140, § 137C (as amended through St. 1939, c. 206).2

1. There is no merit to the contention that mandamus does not lie because the remedy of revocation of the kennel license under G. L. c. 140, § 137C, is exclusive. There is no express statutory provision that c. 140, § 137C, excludes the operation of town zoning regulations authorized by G. L. c. 40A. If Rice’s maintenance of the kennel is in fact a violation of the zoning by-law, Dr. Hume need not establish that the kennel is a nuisance in order to obtain by mandamus enforcement of the zoning by-law. See Dodge v. Inspector of Bldgs. of Newburyport, 340 Mass. 382, 385-386. Cf. Kolodny v. Building Commr. of Brookline, 346 Mass. 289, 290. The existence of a remedy to abate a kennel nuisance does not prevent application of any zoning restrictions against kennels. See Sheehan v. Board of Appeals of Saugus, 332 Mass. 188, 189; Meadows v. Town Clerk of Saugus, 333 Mass. 760, 765; Mioduszewski v. Saugus, 337 Mass. 140, 145.

2. The maintenance of a kennel large enough to require a kennel license is not specifically listed by the Westford by-law (fn. 1) as a permitted accessory use of residential land. See Building Inspector of Chelmsford v. Belleville, *182342 Mass. 216, 217-218. The operation of such a kennel, at least upon the facts here shown, is not farming (as defined in the by-law, fn. 1) or agriculture. See Mioduszewski v. Saugus, 337 Mass. 140, 143-144. The by-law clearly excludes uses “detrimental to a residential neighborhood” and allows as accessory uses3 essentially only inoffensive, quiet uses of a type “customarily incident to” an expressly permitted use. In the context of this by-law, a kennel for a substantial number of dogs does not constitute a permissible accessory or incidental use.

3. The judgment is reversed. Judgment is to enter for issuance of a writ of mandamus commanding the building inspector to enforce the by-law to prevent the maintenance of Rice's kennel.

So ordered.

Hume v. Building Inspector of Westford
355 Mass. 179

Case Details

Name
Hume v. Building Inspector of Westford
Decision Date
Jan 7, 1969
Citations

355 Mass. 179

Jurisdiction
Massachusetts

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