Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Susan Burger v. Zoning Hearing Board of the Municipality of Penn Hills, No. SA 49 of 1983.
J. Michael Baggett, McCann, Garland, Ridall & Burke, for appellant.
Wayne V. DeLuca, with him, August C. Damian, Damian & DeLuca, for appellee.
Judges Williams, Jr., Doyle and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 86 Pa. Commw. Page 602]
This is an appeal from the decision of the Court of Common Pleas of Allegheny County affirming with modifications the denial of a zoning variance. The petitioner, Susan Burger, sought a variance from the Zoning Hearing Board of the Municipality of Penn
[ 86 Pa. Commw. Page 603]
Hills to allow her to raise various small animals for her personal consumption.
Burger purchased the subject property, comprising 1.68 acres, in 1978. At the time of the purchase, the property was zoned R-1 residential and was governed by Ordinance No. 992, enacted in August of 1963. Under this ordinance, certain non-residential uses were permitted in R-1 residential districts; one of these uses was a "farm," which was defined as:
Any parcel of land containing five acres or more with accessory buildings thereon, provided that such buildings other than one dwelling are not within three hundred (300) feet of a property line. Truck gardens and nurseries shall be considered to be farms.
In April of 1980, a new zoning provision, Ordinance No. 1617, was adopted and Ordinance No. 992 was repealed. Under No. 1617, the zoning classification of Burger's property remained the same. Among the non-residential uses permitted in R-1 residential districts is agriculture/gardening. The term agriculture is defined as:
Farming, the cultivation of soil for the purpose of producing crops and/or raising livestock for either personal use or resale. Such activity shall be permitted only on tracts of land at least 5 acres in size and under single ownership or control.
On October 12, 1982, Burger filed an application with the Zoning Hearing Board requesting a variance from the five acre limitation imposed by Ordinance No. 1617. She asserted that because she was allergic to cow's milk and to certain chemicals used by commercial growers of vegetables and chickens, she needed to grow her ...