Duffy v. Milder

896 A.2d 27 (2006)

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Nature of the Case

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Facts

In 1954, when the Poncelet family became engaged in various equestrian activities at their family farm. This included riding, training, and breeding horses. In 1997, James and Paula Malm, purchased lots Nos. 24 and 28 from Poncelet with the intent to alter the property from its pastoral use to condominiums. The Malms successfully petitioned the town to rezone lot No. 24 and a portion of lot No. 28 from Residential (R-30) and Farming (F) to Commercial Limited (CL). In January 1999, the Town Council again changed the zone of the property to Planned Development Residential or PDR-30. The condominium project was completed on lot No. 28. The Malms sold lot No. 24 and its single-family residence to Ps. Before they closed on the property, the Malms gave Ps assurances that they could keep horses there, and they secured a zoning certificate from Donald Dailey, a municipal zoning official. The certificate said that although the property was zoned PDR-30, and horses were not permitted in that zone, 'the keeping of horses on this lot is currently considered a lawfully nonconforming and permitted use and shall be allowed to continue until such time as an overt action for discontinuation is conducted by the property owner.' Ps petitioned for permission to install an internal grazing management system as well as a riding area, but the Town Council unanimously denied their request. Ps grazed approximately sixteen animals, including llamas, alpacas, goats, and horses. They also erected internal fences across the open space easement area and removed topsoil to install a riding ring, jumps, and posts. Ps used the barn, which the town had permitted for 'storage purposes only,' as a stable where they boarded numerous horses. The Town cited Ps for violations from the intensity of their property use. Ps filed a complaint seeking declaratory and injunctive relief that maintaining horses and conducting equestrian activities on lot No. 24 constituted a lawful nonconforming and permitted use. Ds moved to intervene, and their motion was granted. They filed an answer to the Ps' complaint and also pressed a number of counterclaims. Ds requested injunctive relief on the grounds of nuisance, trespass, and breach of the open space easement and conditional easement/agreement. Ds also claimed that stabling and boarding horses on lot No. 24 violated the municipal zoning ordinance, and they requested that the court remand all issues concerning the zoning certificate to the zoning board of appeals. The Superior Court ruled that Ps were free to keep and use their horses as they wished on lot No. 24, except for the 2.7 acres that are burdened by the open space easement. The court granted Ps' cross-motion for summary judgment ruling that keeping and maintaining horses on lot No. 24 is a legal non-conforming and permitted use. Ds appealed.