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08/19/97 WILLIAM D. STONEBACK AND CHERYLL G.

August 19, 1997

WILLIAM D. STONEBACK AND CHERYLL G. STONEBACK, APPELLANTS
v.
THE ZONING HEARING BOARD OF UPPER SAUCON TOWNSHIP AND UPPER SAUCON TOWNSHIP



Appealed From No. 95-C-0674. Common Pleas Court of the County of Lehigh. Judge GARDNER.

Before: Honorable Doris A. Smith, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Senior Judge Mirarchi.

The opinion of the court was delivered by: Mirarchi

OPINION BY

SENIOR JUDGE MIRARCHI

FILED: August 19, 1997

William D. and Cheryll G. Stoneback (Stonebacks) appeal from an order of the Court of Common Pleas of Lehigh County which affirmed the determination of the Zoning Hearing Board of Upper Saucon Township (Board) that they were precluded from proceeding with their zoning application under the doctrines of res judicata and collateral estoppel.

The Stonebacks own approximately ten acres of land located within the Agricultural Preservation zoning district in Upper Saucon Township (Township). In June 1990, the Township issued a notice of zoning violation, stating that the Stonebacks maintained six wolf-dog hybrids on their property in violation of Section 802.C.8 of the Upper Saucon Township Zoning Ordinance (Ordinance), which requires a special exception to operate a kennel for such animals in the Agricultural Preservation zoning district.

The Stonebacks then filed their first zoning application with the Board, alleging, inter alia, that maintaining and raising the wolf hybrids were permitted in the Agricultural Preservation zoning district as wildlife preservation or "animal husbandry." Section 202.C of the Ordinance defines "animal husbandry" as:

The raising and keeping of any kind of livestock, poultry, horse(s), pony(s) or other large domestic animal(s), or the keeping and raising of any combination of more than four (4) small domestic animals (dogs, cats, pigeons, rabbits, etc.) whether or not as pets. (Emphasis added.)

In the alternative, the Stonebacks requested a variance or a special exception.

In its November 1990 decision, the Board denied the application, concluding that the wolf hybrids were not domestic animals; the Stonebacks' use of the property did not fall within animal husbandry or wildlife preservation permitted in the Agricultural Preservation zoning district; the Ordinance is not exclusionary because it allows the Stonebacks to raise their animals in the Agricultural zoning district by a special exception; and the Stonebacks failed to establish their entitlement to a variance or a special exception.

The Stonebacks appealed the Board's decision to the trial court and filed another application with the Board. In March 1991, the Board granted the Stonebacks' second application, concluding that keeping and raising the wolf hybrids were so close to animal husbandry as to constitute a permitted use. The Township appealed the Board's decision to the trial court, which consolidated both appeals from the Board's first and second decisions. The trial court affirmed the Board's first decision denying the Stonebacks' application and reversed the Board's second decision. On appeal, this Court affirmed the trial court's decision, concluding that raising the wolf hybrids did not constitute animal husbandry permitted in the Agricultural Preservation zoning district, and that the Stonebacks' second application was barred by the doctrine of res judicata. See Upper Saucon Township v. Zoning Hearing Board of Upper Saucon Township, 165 Pa. Commw. 623, 645 A.2d 920 (Pa. Commw. 1994), appeal denied sub nom. Stoneback v. Upper Saucon Township, 540 Pa. 615, 656 A.2d 120 (1995).

The Stonebacks then filed a petition for allowance of appeal with the Supreme Court *fn1 and filed their third zoning application with the Board, reiterating their allegation that the keeping and raising of wolf hybrids are permitted as animal husbandry and/or wildlife preservation. The Stonebacks also alleged in the alternative that their animals should be characterized as "dogs," not wolf-dog hybrids, and that the Ordinance is invalid as exclusionary for its failure to permit their animals in any zoning district of the Township.

At a hearing held on December 5, 1994 on their third application, the Stonebacks sought to present the testimony to show that their animals are "dogs," not wolf hybrids, and can be registered as "wolf dogs" with a dog breeder organization. *fn2 The objectors argued that the doctrines of res judicata and collateral estoppel precluded the Stonebacks from proceeding ...


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