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10/21/96 HAVEN D. WHARY AND CAROL WHARY v. ZERBE

October 21, 1996

HAVEN D. WHARY AND CAROL WHARY, HIS WIFE, APPELLANTS
v.
ZERBE TOWNSHIP ZONING HEARING BOARD AND ZERBE TOWNSHIP BOARD OF SUPERVISORS



Appealed From No. CV94-1450. Common Pleas Court of the County of NORTHUMBERLAND. Judge FEUDALE.

Before: Honorable James R. Kelley, Judge, Honorable Jim Flaherty, Judge, Honorable Samuel L. Rodgers, Senior Judge.

The opinion of the court was delivered by: Kelley

OPINION BY JUDGE KELLEY

October 21, 1996

Haven D. Whary and Carol Whary (the Wharys) appeal from an order of the Court of Common Pleas of Northumberland County (trial court) affirming a decision of the Zerbe Township Zoning Hearing Board (ZHB). The ZHB granted the Wharys a variance and a vested right to: (1) the continued use of a pole building on their property subject to the requirement that the Wharys clear their property of manure on a regular basis so as not to create a nuisance; and (2) maintain horses on their property provided, however, the horses may not be maintained within two hundred (200) feet of Pennsylvania Highway Route 225. We affirm.

The Wharys are the owners of a parcel of land situated in Zerbe Township, Northumberland County, Pennsylvania. The parcel lies partially in the M-L Manufacturing District - Limited and partially in the R-SU Residential District. A portion of the Wharys' property which is zoned R-SU Residential District borders State Highway Route 225.

Horses are permitted in the M-L Manufacturing District Limited but are not permitted in the R-SU Residential District. The Wharys kept horses on their property during daytime hours commencing in 1991. The Wharys permit the horses to roam over their entire property.

In 1991, the Wharys erected a fence on their property to restrain their horses. The Wharys spent $3,895.00 for the fence and $283.50 for gates.

On April 23, 1993, Zerbe Township (township) issued the Wharys a building permit to construct a pole building, twenty-four (24) feet by fifty (50) feet on the part of their property zoned M-L Manufacturing District - Limited. The Wharys spent $9,588.49 to construct the pole building. After completion of the pole building in June 1993, horses were housed therein.

During the construction of the fence and pole building, no complaints were lodged by anyone. The pole building lies within three hundred (300) feet of the neighboring property line. *fn1 The owners of three other properties in close proximity to that of the Wharys keep horses on their premises.

On May 12, 1994, the Wharys received an enforcement notice from the township pursuant to section 616.1 of the Pennsylvania Municipalities Planning Code *fn2 (MPC). Therein, the township notified the Wharys that they were in violation of the township's zoning ordinance by (1) maintaining horses within the M-L Manufacturing District and the R-SU Residential District; (2) maintaining buildings in which animals are located within three hundred (300) feet of a lot line; and (3) storing manure or other odor or dust-producing substance within three hundred (300) feet of any lot line. *fn3

On June 9, 1994, the Wharys filed an appeal with the ZHB requesting a variance to allow the Wharys to utilize their property for the maintenance of riding horses. On September 14, 1994, a hearing was held before the ZHB. Before the ZHB, neighboring property owners testified that the housing of horses on the Wharys' property caused a stench and adversely affected the use and enjoyment of their properties.

On October 5, 1994, the ZHB's decision was orally presented and a written decision was issued on October 18, 1994. The ZHB found that the Wharys were entitled to a vested right to the continued use of their pole building subject to the requirement that the Wharys must clear their property of manure on a regular basis so as not to create a nuisance. The ZHB also found that the Wharys were entitled to a vested right to maintain horses on their property provided, however, the horses not be maintained within two hundred (200) feet of Pennsylvania Highway Route 225 in order to eliminate the odor problem. In addition, the ZHB determined that the Wharys were entitled to a variance.

On November 16, 1994, the Wharys appealed the ZHB's decision to the trial court. On December 8, 1994, the township intervened in this matter.

The trial court did not take any additional evidence. Before the trial court, the Wharys argued that the members of the ZHB violated section 908(8) of the MPC *fn4 by allegedly contacting several complainants and by allegedly inspecting the site without notice to the Wharys or an opportunity for the Wharys to be present or heard. To support these allegations, the Wharys submitted, as an exhibit to their land use appeal, an affidavit of Carol Whary.

The trial court rejected the affidavit as hearsay and as not constituting testimony before the trial court. The trial court opined that the Wharys possessed the opportunity to request the presentation of additional testimony before the trial court and failed to do so. Accordingly, the trial court found that all issues concerning alleged violations of section 908(8) of the MPC were waived.

In addition, the trial court held that the ZHB properly granted the Wharys a variance and a vested right to house horses in the newly-constructed pole building and that the ZHB did not err in restricting the housing of horses from a two hundred foot strip ...


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