Tenney kennel permit revocation appeal to be heard in January

After denying a County demurrer motion to dismiss Wendy Tenney’s petition to have the Warren County Board of Supervisors’ April 17 revocation of her commercial breeding kennel permit overturned, Circuit Court Judge Clifford L. “Clay” Athey Jr. set a hearing date of January 3, 2019 for further arguments on the petition.

At the August 23 hearing on the County’s demurrer filing seeking dismissal, Athey told attorneys that he felt a decision on Tenney’s petition to overturn the board of supervisors ruling needed to be made with a broader presentation of evidence.

The supervisors’ revocation came by a 4-1 vote, with only Tenney’s South River District Supervisor Linda Glavis dissenting. That vote came after the supervisors heard evidence for and against continuation of the kennel permit at Tenney’s Gethsemane Mountain Ranch property where 16 dogs died in a March 6, 2017 kennel fire.

Tenney and her new attorney Michael Sharpe are contending that the board of supervisors did not have the authority to revoke her conditional use permit (CUP); that by county code it should have been the county zoning administrator that made the decision, with any appeals being before the county’s appointed board of zoning appeal (BZA).

On August 23 County Attorney Dan Whitten argued that the county’s elected board does have the authority to revoke a CUP through state codes in situations where non-compliance with conditions of the permit can be shown.

The county planning staff presented a list of permit violations in support of a recommendation of revocation following a County investigation into the fatal canine fire. It was also noted at the planning commission hearing that Tenney had been arrears in paying both taxes and fees associated with the kennel operation.

County Planning Director Taryn Logan, left, has denied Tenney contentions she was singled out for any undue scrutiny of her kennel operation. Royal Examiner File Photos

The post-fire county planning staff review found multiple violations of Tenney’s original conditional use permit and a history of cancelling inspections and delays or failures to reschedule. Cited in that 2017 staff report were:

• Tenney’s ignoring a warning from Animal Control about the use of space heaters in dog kennels after Tenney’s presenting one showing frayed wiring from dog chewing;

• No electrical permit for the kennel building;

• accumulated trash and feces in the kennel, the former cited in rapid spread of the March 6 fire;

• septic drainage toward neighboring properties and a consequent strong odor coming from the kennel property;

• a failure to license kennel dogs over a two-year period 2015-16;

• exceeding the maximum number of 11 permitted dogs by housing as many as “approximately 19” adult dogs;

• inoperable barking suppression collars;

• and repeated cancellations of scheduled county staff or animal warden visits without effort to reschedule.

However, Tenney’s appeal filing contests those violations and calls the board decision to terminate her kennel permit “arbitrary and capricious”.

During his argument for a summary dismissal of Tenney’s permit revocation petition of the court Whitten countered that there was no evidence in Tenney’s filing to uphold that contention of an arbitrary and capricious board decision.

Tenney had public hearings in front of both the county planning commission and board of supervisors on the revocation suggestion of the county planning staff. On March 14 a divided planning commission forwarded a 3-2 recommendation of continuation of Tenney’s kennel permit to the board of supervisors. However, queried after that vote several commissioners questioned whether Tenney would be able to meet deadlines or conditions added to her permit in the wake of the kennel fire.

Through four months leading to the March planning commission and April supervisors’ votes, neither Tenney nor her then attorney Jay Neal expressed any concern they were on an invalid legal path toward a ruling on the permit.

Shifting blame

As Royal Examiner reported after the second 30-day delay on a planning commission vote requested by the applicant in February, communications from Tenney to county officials in the wake of the fatal fire were contentious at best. In a series of letters Tenney aggressively shifted blame for the fire on county officials and codes.

Wendy Tenney makes her case at a county planning commission hearing on whether or not to extend her commercial breeding kennel permit.

“And again, for the record, the night of the fire I was in complete compliance according to Warren County Code. And, my dogs were up as it was after 10 p.m., according to code; and they had heat, according to code. They couldn’t escape and it Killed Them. They died adhering to Warren County Code,” Tenney wrote County Planning Director Taryn Logan on October 20.

The County fire investigation indicated the cause of the fire to be a space heater run from an electrical box investigators were told was wired without a county inspection or permit. Tenney had been warned against using space heaters in the kennel by Sheriff’s Office Animal Control Officer Laura Gomez after Tenney noted wiring on one used in the kennel about three months before the fire showed signs of being chewed on by the kennel dogs.

And on January 3, 2019 the issues of responsibility and jurisdiction will be argued in Warren County Circuit Court.