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NICOLE S. GRAFF ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF KILLINGWORTH ET AL. (SC 17356) (SC 17357)
Sullivan, C. J., and Borden, Norcott, Katz and Palmer, Js. Argued November 21, 2005--officially released April 11, 2006

Kenneth J. McDonnell, for the appellants in Docket No. SC 17356 (intervening defendants Kerry O'Connell et al.). William Howard, with whom, on the brief, was David J. Tycz, for the appellant in Docket No. SC 17357 (named defendant). Timothy S. Hollister, with whom was Beth Bryan Critton, for the appellee (named plaintiff).
Opinion

BORDEN, J. The named defendant, the zoning board of appeals (board) of the town of Killingworth (town), appeals1 from the judgment of the trial court reversing the board's decision to uphold a cease and desist order, which required the plaintiff,2 Nicole S. Graff, to reduce the number of pet dogs on her property to four or less in accordance with the Killingworth zoning regulations (regulations). The board raises three issues on appeal, namely, that the trial court: (1) improperly concluded that pet dogs were not regulated as an accessory use under the town regulations; (2) improperly concluded that by setting an enforceable limit on the number of dogs kept in each residence, the board had enacted a substantive change to the town regulations; and (3) improperly substituted its judgment for that of the board when it rejected the board's determination that the keeping of in excess of four pet dogs was not a permissible use of property in the town's rural residential district. We reverse the judgment of the trial court. On April 27, 2001, the Killingworth planning and zoning commission (commission) issued a cease and desist order to the plaintiff. The order informed the plaintiff that several complaints had been filed against her regarding the noise generated by the large number of dogs kept on her property, and also directed the plaintiff

that she had thirty days either to reduce the number of dogs kept at her residence to no more than four, or to appeal the order to the board. The plaintiff appealed the cease and desist order to the board, which, after a de novo hearing, upheld the order, as well as the validity of the commission's original resolution that the keeping of more than four dogs was not a reasonable and customary accessory use of residential property in the town. The plaintiff appealed from the board's decision to the Superior Court, which sustained the plaintiff's appeal. This appeal followed. The record reveals the following facts. The plaintiff owns a single-family home on a nine acre parcel of land located at 566 Route 148 in the town's rural residential district. In early 2001, Cathie Jefferson, the town zoning enforcement officer, as well as several other town officials, received multiple complaints from town residents, including the intervening defendants; see footnote 1 of this opinion; regarding the number of dogs on the plaintiff's premises and the noise generated by them. As a result of visits to the plaintiff's property, town officials observed as many as fourteen dogs on the premises. The plaintiff's neighbors, however, reported seeing up to twenty dogs on the property. Community complaints against the plaintiff's dogs centered on the noise generated by prolonged barking at various hours of the day and night,3 aggressive behavior toward a complainant and her family, as well as the fact that some of the plaintiff's dogs were found roaming unattended on the neighbors' property. In response to the complaints from the plaintiff's neighbors and other members of the community, Jefferson sent a letter to Robert Bartner, the plaintiff's father, who was the record owner of the property at the time of the dispute, advising him of the complaints filed against the plaintiff and that she appeared to be operating a dog kennel on the property in violation of the town regulations. Jefferson also sent the plaintiff certified letters referencing the complaints received about the dogs, and that she believed the plaintiff was operating a commercial kennel. In her correspondence, Jefferson further stated that the plaintiff had ten days to demonstrate her compliance with state and local regulations, and Jefferson issued a summons requiring the plaintiff to register all of her dogs with the town clerk. The plaintiff responded to Jefferson's allegations in writing by way of two letters in which she stated that the dogs on her property were her pets and that she had never operated a commercial boarding or breeding kennel on the premises. Additionally, the plaintiff stated that, although she was under no obligation to inform the town when she either obtained or lost a pet dog, she had obtained licenses for three of her pets and agreed to update the town records regarding the status of the other pets on her property.

Subsequent to this correspondence, Jefferson researched the dog registration records of the town in order to determine the customary number of dog licenses per residential property in the town.4 Within the subset of residential properties maintaining more than one licensed dog on the premises, Jefferson discovered that there were 195 residences with two dogs, forty-three residences with three dogs, seven residences with four dogs, three residences with five dogs, one residence with seven dogs, and one residence, the plaintiff's, with fourteen dogs. This information was presented to the commission at its regular meeting on April 17, 2001, at which point Jefferson requested assistance in interpreting certain portions of the town regulations. The commission also received an opinion from the town counsel endorsing Jefferson's methodology, and concluding that fourteen dogs on a residential lot was not customary and was a violation of the accessory use provision of the town regulations. Following discussion and review of Jefferson's data, as well as the opinion of the town counsel, the commission voted in favor of a resolution that the keeping of four dogs or less in any household constituted a permissible accessory use of residential property. Conversely, the commission determined that any homeowner keeping more than four dogs would be in violation of the town regulations. In accordance with the resolution passed by the commission on April 17, 2001, Jefferson issued a cease and desist order to the plaintiff on April 27, 2001, stating that there were fourteen licensed dogs residing on the plaintiff's property, and ordering the plaintiff to remove all dogs in excess of four from her property to bring it into compliance with the town regulations. In this order, Jefferson explained that `` `[a]t the April 17, 2001 [commission] meeting there was discussion regarding the keeping of dogs as an accessory use. The [c]ommission reviewed the information gathered from the [t]own [c]lerk's office regarding dog licensing and decided that any household housing more than four dogs [was] in violation of the [town regulations].'' At this point, Jefferson further instructed the plaintiff that she had thirty days either to remove all dogs in excess of four from her property, or to appeal the cease and desist order to the board. The plaintiff appealed the order to the board, which rejected her appeal. Additional facts and procedural history will be set forth as necessary. I It is useful to begin with a brief discussion of the reasoning of the trial court. Upon reviewing the relevant statutory language, the trial court concluded that

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