Jeanne Tomlin applied to the local board for permission to exceed the canine occupancy limit within their home.  The board denied the request.  A few months later, Tomlin applied to the village for a kennel license.  After a public hearing, the board denied this application as well.  Tomlin appealed that decision, arguing that the ordinance, VOO § 106-3B, which regulates kennels, is unconstitutionally vague.  Specifically, Tomlin argues that the ordinance does not provide objective factors to guide the board’s decision.  Further, Tomlin asserts that § 106-3C, which regulates the maximum number of dogs in a residence, is unconstitutional because it incorporates § 106-3B by reference.  The circuit court held that the ordinance was not unconstitutionally vague.  Tomlin appealed. 

The Wisconsin appeals court begins by clarifying the issue.  Tomlin’s issue is whether § 106-3B is unconstitutional for failure to establish clear standards for a kennel license.  Although Tomlin argues it is void for vagueness, the court finds that the real issue is whether the ordinance allows village officials “unbridled discretion” in its determination.  

The court begins its analysis by reading the statutory language.  The court finds that there are a number of regulations in the ordinance including: that a license tax be paid, that the dogs be over a certain age and immunized, and that any residential areas must meet other conditions.  Further, the court finds that a subsection of the ordinance provides numerous standards for the board to assess applicants, including whether they can provide food and drink.  Although Tomlin argues that particular subsection applies only to current kennel license holders seeking to renew, the court finds that by the language of the statute, the section applies both to license renewal as well as those seeking initial licenses.  Mainly, the court looks at the definition of kennel—any establishment where three or more dogs are kept—and finds that Tomlin’s house contains nine dogs, and, thus, qualifies as a kennel even though not licensed. 

Finally, the court deals with Tomlin’s argument that § 106-3C is unconstitutional by its incorporation into § 106-3B.  The court finds that the statutes relate to two completely different things.  Thus, the court finds, whether § 106-3B is unconstitutional is not relevant to the constitutionality of § 106-3C.  Further, the initial decision against Tomlin, denying his application to exceed canine occupancy limits under § 106-3C, is not appealed here and, thus, whether it is constitutional is irrelevant. 

The court thus holds § 106-3B constitutional in that it “provides sufficient standards” for the village to follow in permitting and denying kennel applications.  

Tomlin v. Village of Orfordville, 2012 WL 955503 (Wis. Ct. App. 03/22/2012) 

The opinion can be accessed at: http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=79849