Dog Day Care Targeted

May have repercussions on other home occupations
Lori Marsden has run a doggy day care from her house on Saddle Lane in East Hampton for the last 12 years, but it is in danger of closing after the town building inspector said it was illegal to run such a business out of a residence. Durell Godfrey

A matter before the East Hampton Town Zoning Board of Appeals is an assault on the town code, which allows residents to run some businesses out of their homes, according to Carl Irace, an East Hampton attorney. In addition to the code, however, the matter is of widespread interest because it concerns dogs.

Mr. Irace’s clients, Lori Marsden and her husband, Anthony Tyson, are appealing a July 2018 decision by the town building inspector, Ann M. Glennon, that Ms. Marsden is illegally offering doggy day care at the couple’s house at 10 Saddle Lane, which is in a residential zone in East Hampton. 

Ms. Marsden, who owns two dogs, has been operating the small-scale company  for 12 of the 23 years the couple have lived there. She offers daytime and overnight pet care, also making house calls and  walking dogs.

In July 2017, a town code enforcement inspector visited the property and charged her with operating the business. Ordinance violations are prosecuted by the county district attorney’s office in accordance with criminal procedure law. Five dogs were reportedly on her property at the time of the visit, though she said there were only four and that two were her own. The case is pending in East Hampton Town Justice Court.

Later in 2017, the county brought a related civil enforcement case against her, reportedly over dog grooming, which, while legal, requires a permit. The case was dismissed before Ms. Marsden appeared in court, after she told the zoning board she had decided against grooming. 

“The criminal case is still pending, and we sought a determination from the building inspector that Lori’s business was a lawful home occupation, as defined in town code,” Mr. Irace told the Z.B.A. “We thought that this would change the circumstances of the criminal case, and, to be honest, were quite surprised when we received a determination that claimed that doggy day care in fact violated the home occupation law.” The decision will put her out of business, he said. 

Although the building inspector said pet sitting did not qualify as a home occupation, dog walking could qualify if the dogs were not being dropped off and picked up at her house, but picked up and dropped off elsewhere. 

The home occupation law allows for home occupations as lawful accessory uses of single-family residences. External evidence of any business, like noise, however, is prohibited, as are changes to  the residential character of the house. 

The basis for the building inspector’s decision, that there was external evidence of a pet-sitting business, such as dogs playing or walking, was a mistake, Mr. Irace said, because it ordinarily occurs at people’s houses. “If that’s external evidence that makes a dog-sitting operation unlawful, you’d have to go to site plan review to be a pet sitter or get an office in a commercial district in a town that notoriously doesn’t have enough commercial space,” Mr. Irace said. “And it also undermines the goals of the comprehensive plan that wants us to have low intensity uses.”

By his own count, Mr. Irace found 57 pet sitters on Petsitter.com in East Hampton alone. “The ramifications of this are huge,” he said. “To interpret the statute this way creates an absurd and objectionable result,” which would destroy every home occupation, Mr. Irace said. “Think of the repercussion of upholding this decision,” he said. “Upholding it will prohibit occupations that for time immemorial have operated from their homes,” he said. 

“The list is endless,” he said, rattling off a few examples. “Contractor vans with lettering you can see from the street. If this is external evidence, so is that. Clients parking cars, open and shutting car doors for different professionals, whether it’s psychologists or whoever else . . . attorneys. Plenty of attorneys in town have home offices. If an attorney has surveys dropped off and you can see them from the street is that external evidence? By this analysis, yes it is.”

 Mr. Irace asked the zoning board to think about how upholding the determination would affect people who are running small businesses from home. “Please, when you consider my client’s appeal here, consider the effects that this will have on our neighbors’ livelihoods and how this would change our town as we know it.” 

Zoning board members inquired about noise from the dogs. “It seems to me that if there was a trigger to this it was likely that neighbors were disturbed by the amount of activity, specifically the amount of noise,” Tim Brenneman said. 

John Collier, who lives at 11 Saddle Lane, said he and his husband had complained about the noise. He spoke about his concern that a business is being run in a residential neighborhood and the negative impact it has on the neighborhood. 

Noise from dogs seven days a week all year limits how his family can enjoy their property, he said, adding that he was going to submit audio of dogs barking. Sometimes, he said, it sounds like there are a dozen or more dogs there. 

He also said multiple cars come and go both morning and night and that he is worried that a dog may get loose and attack his children. 

Randy Parsons of Springs, a planning board member, spoke in support of Ms. Marsden. “This is an interesting case you guys have,” he said, calling the decision a balancing act. He appreciated some of the questions raised, he said, including whether additional legislation was necessary on home occupations. 

“Doggy day care has become a business here,” he said. “I think there’s a great need for our year-round residents to make a living as much as they can in their own homes without bothering their own neighbors.” 

“I hope you can find a balance here that allows her to continue to make money doing what she does so well and also try to accommodate the reasonable concerns of the neighbors,” he said. “I have to say, I don’t find a concern that a dog is going to escape and attack children reasonable because that would apply to everybody’s dog,” he said, referring to Mr. Collier’s comment. “I think the noise objection and perhaps traffic, I think those are legitimate concerns, but I think they can be managed so we can have a live-and-let-live situation.”

The record was to remain open until Feb. 12 for Mr. Irace to respond to written comments received from other neighbors.