Doggy Day Care Can Stay

Z.B.A. says pet business is a legal home occupation
Lori Marsden walking some of the dogs in her care at Sammy's Beach last month Durell Godfrey

An East Hampton woman’s four-legged clients won’t have to sniff out a new day care thanks to an East Hampton Town Zoning Board of Appeals decision that allows her to continue operating the business out of her house.

Last week, the zoning board voted unanimously to overturn a building inspector’s decision that would have put Lori Marsden out of business. At a Feb. 26 meeting, the board ruled that her pet care business does in fact meet the standards under the town’s home occupation law. The town code permits residents to run businesses out of their home as long as they do not exceed 25 percent of the gross floor area or 500 square feet, whichever is less; that the business be done solely by the occupants, except for one additional employee, and that there be no external evidence of the business, including noise, aside from an outside sign. 

In July 2017, town code enforcement issued violations to Ms. Marsden for operating the business out of her house on Saddle Lane in East Hampton, in a residential zone. With the criminal case pending, Ms. Marsden’s attorney, Carl Irace, sought a determination from the building inspector, expecting that her business would be ruled a lawful home occupation as defined by the code. He and Ms. Marsden were surprised when the inspector, Ann M. Glennon, said that a dog day care violated the town code. They went to the zoning board to appeal her decision. 

Tim Brenneman, a board member who led the research on Ms. Marsden’s appeal, also referred to amendments to the home occupation law that allowed for beauty and barbershops, as well as businesses related to the commercial fishing industry. Businesses such as clinics, hospitals, antique dealerships, retail shops, and breeding kennels were prohibited in another amendment. 

“I found that paragraph particularly interesting, because the board saw fit to make sure that they preserved the historical home occupations of our baymen,” Mr. Brenneman said after reading that subsection of the code. “But I also would note they were particularly focused, not just on any kennel operation but that of a breeding kennel, and they specifically referenced that. The inference here could be that they viewed that distinction perhaps as the difference between a home-based business and a commercial business.”

Theresa Berger, another board member, said she felt that that the amendment singled out breeding kennels. “To me, the intent of the legislators, at the time, the boards that were in place, actually analyzed this and put a lot of thought into what would be a home occupation,” she said. 

Ms. Marsden’s business is not considered a boarding facility, in that there are no visible crates or cages, and the dogs that stay with her during the day, and occasionally overnight, are treated as her own two dogs are, Mr. Brenneman said. 

Roy Dalene, a board member, said he felt the building inspector’s decision “was somewhat arbitrary.” He said it was conjecture on her part to assume Ms. Marsden’s business was a kennel. “There is no evidence that it was a kennel.”  

“A dog walking and doggy day care business does meet and should meet and my common sense tells me it better meet the definition of a home-based business,” he said. 

Mr. Brenneman said he did not feel the business changed the character of the neighborhood, even though neighbors had complained at a hearing in late January about noise. He said it was unclear to him how much of the noise could be attributed to Ms. Marsden’s own dogs versus that of her four-legged guests. “We simply don’t know,” he said, adding that the audio file that one neighbor had submitted was less than 15 minutes long, which is the amount of time of dog barking that would trigger a town code violation. The noise would be a matter for code enforcement, he said. 

He said he was “uncomfortable” with the building inspector’s statement regarding the dog walking aspect of Ms. Marsden’s business. Ms. Glennon had said in her July determination that Ms. Marsden could run the business if she picked up and dropped off the dogs elsewhere. Mr. Brenneman said he did not feel there was any reason for that. 

“I do believe the town should look at this issue and consider updating the home occupation definition as it specifically relates to dog care,” he said. Earlier, he said that the issue of pet care is “worthy of a more detailed and nuanced definition that better considers and balances the needs of the community for this important service and the neighbors that are equally deserving of protection. . . .” 

The home occupation law, updated twice since its adoption, is “a living definition subject to consideration and update given the world we live in and is neither absolute nor unalterable.”

John Whelan, the chairman, said a dog day care business is a necessity for pet owners and that it was obvious from the letters of support Ms. Marsden had received that people appreciate the good care she has taken of dogs. He said he thought the town board would be listening and would want to further clarify the town code.  

What the board did not do in its decision was address Ms. Marsden’s attorney’s claims that this was an assault on all home occupations. Carl Irace had maintained that saying she was illegally running a business out of her home put all home occupations at risk.    

Mr. Irace, who is waiting for the written decision, said he was happy with the board’s discussion last week. “I am relieved that they appear to be going our way, unanimously and unequivocally. The board members clearly took this very seriously and each brought valuable perspective to the discussion.”