Appeal from the Order of the Court of Common Pleas of Carbon County in the case of Borough of Summit Hill v. Joseph Tirpak, No. 200 CR 84.
Arnold Sousa, for appellant.
Thomas S. McCready, for appellee.
Judges Craig and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Craig.
[ 101 Pa. Commw. Page 167]
Where a borough zoning code expressly allows in a residential district "accessory uses . . . customarily subordinate to the principal use . . . but not the keeping of livestock or poultry," does the keeping of a pig as a pet, on a residential premises, constitute a violation?
[ 101 Pa. Commw. Page 168]
Homeowner Joseph Tirpak has appealed from a decision of the Court of Common Pleas of Carbon County upholding the imposition of a $400 fine against him pursuant to a summary conviction for violation of the zoning ordinance of the Borough of Summit Hill.
As found by President Judge Lavelle, the trial judge, the facts indicate that the homeowner, who lives in an R-3 Residential District with his son and two grandchildren, has kept a pig as the pet of himself and his grandchildren for four years, maintaining the animal on the sun porch of his dwelling during the winter months and in the back yard for the remainder of the year. The animal has grown to a size of 1000 pounds. In the R-3 District, the principal permitted uses are one-and-two-family dwellings while residential conversions and large scale residential developments are authorized by special approval procedures. According to the record available to this court, there is no agricultural district, and agriculture is not listed among the permitted uses.
Under section 1202(12) of the Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. § 46202(12), the Borough of Summit Hill has statutory power to enact a clear and definite prohibition against pig-keeping in the borough. That section provides in part:
Among the specific powers of the borough shall be the following . . .
(12) Hogs. To prohibit the keeping of hogs within the borough, or within any part of the borough.
However, the Borough of Summit Hill has offered nothing to establish as a matter of law that it has exercised that clear and definite power. Accordingly, in pursuing the summary conviction here, the borough has relied ...