Last fall, the county's Board of Zoning Appeals voted 5-0 to deny Martin's request for a special exception after Miller testified about conditions at the kennel, county records show.
Martin appealed that decision in Washington County Circuit Court, and Judge Daniel P. Dwyer ordered Aug. 18 that the Board of Zoning Appeals reconsider the matter.
At the first public hearing on the request Oct. 22, 2008, none of Martin's neighbors appeared in opposition. Miller testified that he visited the property in 2007 and found about 74 dogs, constituting what he described as a "puppy mill," according to the zoning appeals board's opinion and a summary of the hearing submitted in the subsequent court case.
Martin said she began keeping dogs as a hobby in the mid-1990s and the operation grew into a breeding and sales enterprise, according to the "findings of fact" in the zoning appeals board's 2008 opinion. That document says the dogs were kept in "rabbit hutch"-style kennels on a commercial dairy farm with about 150 dairy animals.
Miller said last week he had not been to the farm since that 2007 inspection and did not know whether Martin was still running the breeding operation.
Attempts to reach Miller by phone on three separate days were unsuccessful.
In an opinion issued Nov. 20, 2008, the zoning appeals board wrote that the kennel was incompatible with a commercial dairy farm.
"The lack of regular removal of dog feces from 50 to 75 dogs and the lack of rabies vaccinations create health concerns; those concerns are particularly acute since the kennel is coupled with a milk production on the same property," the board wrote. "Furthermore, we have concerns about the potential for roundworm contamination and its transmission to humans."
In Martin's appeal, her attorney, William C. Wantz, argued the zoning appeals board erred in evaluating the kennel's compatibility with other operations on the same property when it should have considered its effect on surrounding properties.
When Assistant County Attorney Kirk C. Downey responded that the board's health concerns were about the milk "regularly placed into the stream of commerce for use and consumption offsite," Wantz responded that the zoning board had no authority to regulate milk production.
"A zoning board lacks the training, skill and technical expertise to efficiently regulate the quality of the milk products entering the stream of commerce," Wantz wrote, noting that no evidence was presented to call into question the quality of the milk.
Dwyer found the board failed to consider the proper standard for granting or denying a special exception and ordered the board to specifically consider whether the kennel would have adverse effects on surrounding properties.
The hearing is scheduled for 7 p.m. in Room 227 of the County Administration Building at 100 W. Washington St. in Hagerstown.