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Good v. Zoning Hearing Board of Heidelberg Township

January 9, 2009


The opinion of the court was delivered by: Judge Simpson

Argued: December 8, 2008



In this zoning appeal, Scott L. Good and Mary J. Good (collectively, Applicants) challenge the Zoning Hearing Board of Heidelberg Township's (ZHB) decision that granted their request for a special exception to operate a dog kennel, but attached 28 conditions to the grant of the special exception. On Applicants' appeal, the Court of Common Pleas of Lebanon County (trial court) struck two of the conditions. Applicants ask this Court to strike an additional eight conditions on the grounds these conditions are preempted by federal or state law and do not serve a legitimate zoning purpose. Upon review, we affirm.

The ZHB made the following pertinent findings. Applicants own the property located at 276 Canaan Grove Road, Newmanstown, Heidelberg Township (subject property). The subject property, which lies in the Township's agricultural zoning district, is improved with a single-family dwelling, two intensive animal poultry homes, and two barns that are not currently in use.

Applicants seek to construct a building to operate a dog kennel. Dog kennels are permitted by special exception in the agricultural zoning district. As such, Applicants applied for a special exception pursuant to Section 6.2(M)(2) of the Heidelberg Township Zoning Ordinance (Ordinance).

The proposed kennel would be 14 feet by 38 feet, with a painted steel exterior siding and an interior peek of 12 feet. The kennel would consist of 16 pens, each four feet by four feet.*fn2 Each kennel would also have a pet door for access to an outside area. The interior of the building would have radiant heat and air conditioning. Applicants proposed to clean the pens daily and spread feces generated by the kennel throughout the subject property.

Applicants also proposed to construct two separate dog exercise areas adjacent to the kennel. Ingress and egress would be from a paved driveway, 16-feet wide from Canaan Grove Road in a westward direction, approximately 400 feet to the last poultry barn and then a 12-foot wide gravel driveway approximately 400 feet to the kennels. Parking for customers would be on a macadam driveway adjacent to Applicants' home.

The proposed kennel would be at least 400 feet from the eastern property line, 450 feet from the western property line, 700-800 feet from the southern property line, and approximately 700 feet from the northern property line. The kennel would not be visible to any surrounding landowners because of the topography of the subject property as well as woodlands surrounding most of the subject property. There would be one "dusk-to-dawn" light that would shine directly downward with no glare to surrounding landowners.

Applicants currently raise English Bulldogs, but no permit is needed from the Department of Agriculture because of the limited number of dogs housed on the subject property. Applicants will apply for a license from the Department of Agriculture to continue to raise English Bulldogs; the license would allow Applicants to raise up to 100 pups. Department of Agriculture regulations would also permit up to two mature dogs of between 50 and 60 pounds in each interior kennel. The sale of the pups would be retail from Applicants' home by appointment and not wholesale to pet stores.

After hearing, the ZHB issued a decision in which it granted Applicants' special exception request subject to 28 conditions. Applicants appealed to the trial court, challenging the imposition of the conditions.

Without taking additional evidence, the trial court affirmed in part, and reversed in part. Specifically, the trial court struck two conditions, but affirmed the remaining conditions. This appeal by Applicants followed.*fn3

In this appeal, Applicants challenge conditions 1, 3, 4, 7, 17, 19, 25 and 27, imposed by the ZHB, which state:

1. The size of the kennel be 14' x 38';

3. The inside pens of 4' x 4' be limited to one dog over 10 weeks old with adequate bedding with an outside pen connected with a pet door 4' x 6'; or in the alternative

4. Two dogs per pen of 4' x 8' with adequate bedding with an outside pen connected with a pet door of 6' x 8';

7. The entire interior shall be heated and air conditioned. The inside heat at the dog level shall be between 68§ and 75§. There shall also be provided natural ventilation for adequate air circulation;

17. Dead dogs would be disposed of off site by a reputable carcass removal service with written verification to the Township;

19. The dogs be fed by hand;

25. The dogs be exercised daily;

27. The dogs be located indoors between 9:00 p.m. and 7:00 a.m. .

ZHB Op. at 9-11.

I. Federal Preemption

Applicants first assert the trial court and the ZHB erred in determining conditions 1, 3, 4, 7 and 19 are not preempted by federal law. They argue conditions relating to the size of the pens, the number of dogs allowed in each pen, and the temperature of the pens, are governed by the Animal Welfare Act (AWA), 7 U.S.C. §§2131-2159, and its attendant regulations, which are enforced by the U.S. Department of Agriculture. Applicants contend 9 C.F.R. §§3.1-3.6 contains regulations regarding operation procedures for the housing facilities for dogs, while 9 C.F.R. §§3.7-3.19, sets forth requirements for feeding, exercising, and cleaning the dogs.

As to the specific conflicts between the challenged conditions and federal law, Applicants argue the ZHB imposed condition 19, which requires dogs be fed by hand, but 9 C.F.R. §3.9 allows dogs to be fed dry food with self-feeders. Additionally, they assert, condition 7 requires the temperature in the kennel remain between 68§ and 75§, while Section 3.2 of the regulations states the temperature must not fall below 45§ nor rise above 85§ for more than four consecutive hours. Further, they argue, the ZHB imposed several conditions regarding the size of the kennel and pens (conditions 1, 3 and 4), but Section 3.6(c) provides a detailed formula to calculate the required dimensions of each pen.

Further, Applicants distinguish DeHart v. Town of Austin, Indiana, 39 F.3d 718 (7th Cir. 1994), relied on by the trial court, in which the Seventh Circuit Court of Appeals held Congress did not intend the AWA to preempt state or local regulation of animal welfare. They assert that unlike in DeHart, where the town enacted a local ordinance regulating wild animals, the ZHB here did not enact a new ordinance; rather, it imposed conditions on the grant of the special exception. Applicants concede the Township has authority to enact a local ordinance that "refines" the terms of the AWA. However, they contend, because imposition of conditions does not constitute ...

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