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Latimore Township v. Latimore Township Zoning Hearing Board

January 4, 2013

LATIMORE TOWNSHIP, APPELLANT
v.
LATIMORE TOWNSHIP ZONING HEARING BOARD, DALE R. KING AND KAY L. KING



The opinion of the court was delivered by: James Gardner Colins, Senior Judge

Argued: December 12, 2012

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY SENIOR JUDGE COLINS

This is an appeal by Latimore Township (Township) from an order of the Adams County Court of Common Pleas affirming a decision of the Latimore Township Zoning Hearing Board (ZHB) that chicken houses owned by intervenors Dale R. King and Kay L. King (Property Owners) are a permitted use in the zoning district in which they are located. We affirm.

This matter arises out of notices of revocation of nonconforming use issued by the Township with respect to two contiguous parcels of land in the Township (the Property). Property Owners have owned the Property and operated chicken houses on the Property since the 1960s. (ZHB Decision Findings of Fact (F.F.)

¶¶15, 23, R.R. at 17a-18a; ZHB Hearing Transcript (H.T.), R.R. at 90a.) There are five chicken houses presently on the Property, each of which can be used to raise 24,000 to 34,000 chickens. (ZHB F.F. ¶¶23-25, R.R. at 18a; ZHB H.T., R.R. at 89a, 112a.) These five chicken houses have been on the Property since 1997 or 1998 and Property Owners have raised flocks of chickens in them from that time on. (ZHB H.T., R.R. at 92a, 94a.) Prior to 2008, the area in which the Property is located was zoned as an Agriculture-Conservation (A-C) District (ZHB F.F. ¶¶21-22, R.R. at 17a.) The chicken houses were a permitted use in that zoning district. (1987 Zoning Ordinance at 15, R.R. at 201a.)

In 2008, the Township adopted its current zoning ordinance. (Joint Stipulation, R.R. at 42a.) Under this zoning ordinance, Property Owners' chicken houses are classified as a "Concentrated Animal Operation." (Court of Common Pleas Order of December 10, 2010 at 1 ¶4.) The 2008 Zoning Ordinance provides for two A-C districts, an A-C-I District and an A-C-II District. (2008 Zoning Ordinance at III-1 to IV-8, R.R. at 313a-322a.) The Property is located in the A-CI District. (ZHB F.F. ¶20, R.R. at 17a; Subdivision Plan, R.R. at 3a.) Section 402 of the 2008 Zoning Ordinance lists as a permitted use in the A-C-I District "[a]griculture including . raising and keeping livestock, excluding the development of new or expansion of existing Concentrated Animal Operations." (2008 Zoning Ordinance at IV-1, R.R. at 315a.)

Two of the five chicken houses are on the larger parcel of the Property and the other three are on the smaller parcel. (ZHB F.F. ¶¶24-25, R.R. at 18a; ZHB H.T., R.R. at 89a-90a.) The three chicken houses on the smaller parcel of the Property encroached on what had originally been part of the larger parcel. (ZHB F.F. ¶32, R.R. at 18a; ZHB H.T., R.R. at 77a, 94a-95a.) In April 2009, Property Owners sought to sell the chicken houses. (ZHB H.T., R.R. at 94a-95a.) In order to do so, Property Owners needed to obtain Township approval to change the boundary lines of the parcels to correct the encroachment, and in June 2009, Property Owners submitted an add-on lot subdivision application to the Township for approval, seeking to add two small portions of the larger parcel to the smaller parcel. (ZHB F.F.

¶¶31-32, R.R. at 18a; ZHB H.T., R.R. at 77a-78a, 94a-95a, 104a; Subdivision Plan, R.R. at 3a.) The Township did not approve the add-on lot subdivision plan until early 2010. (ZHB H.T., R.R. at 77a; Subdivision Plan, R.R. at 3a.)

On July 29, 2010, the Township's Zoning Officer issued Revocation Notices with respect to the Property, asserting that chicken houses on the Property were a nonconforming use and that this use had been abandoned. (ZHB Decision F.F. ¶¶1, 2, 6, R.R. at 16a; Revocation Notices, R.R. at 6a-9a.) Property Owners filed timely appeals of the Revocation Notices to the ZHB in August 2010, contending that they had not abandoned raising chickens on the Property and that the operation of the chicken houses therefore remained a pre-existing nonconforming use. (ZHB F.F. ¶¶3, 7, R.R. at 16a; Appeal to ZHB, R.R. at 12a-15a.) On September 23, 2010, the ZHB held a hearing on the Revocation Notices. (ZHB F.F. ¶10, R.R. at 17a.) At the ZHB hearing, the Township contended that the use of the chicken houses had been abandoned under Section 513 of the 2008 Zoning Ordinance, which provides that a nonconforming use is abandoned if the use "is discontinued or abandoned for twelve (12) consecutive months." (2008 Zoning Ordinance at V-10, R.R. at 351a.) Property Owners raised the argument that their chicken houses are a permitted use under Section 402 of the Township's 2008 Zoning Ordinance, in addition to their alternative contention that they are legal as a pre-existing nonconforming use that had not been abandoned. (ZHB F.F. ¶8, R.R. at 16a; ZHB H.T., R.R. at 71a, 73a-74a.) At the hearing, Property Owners admitted that the last flock of chickens was removed from the chicken houses in April 2009, but testified that they had been trying to sell the Property since that time and had a purchaser for the smaller parcel under contract. (ZHB F.F.

¶52, R.R. at 20a; ZHB H.T., R.R. at 94a, 96a-97a, 104a, 111a, 116a.) Property Owners introduced evidence that the purchaser had been doing work repairing the chicken houses for continued operation during the period after April 2009 and that the sale had been delayed by the Township's actions. (ZHB F.F. ¶¶41, 52-55, R.R. at 19a-20a; ZHB H.T., R.R. at 96a-98a, 104a, 116a-119a, 125a-129a.)

In October 2010, the ZHB issued its decision, ruling in favor of Property Owners on the ground that the chicken houses are a permitted use under Section 402 of the 2008 Zoning Ordinance and, accordingly, finding it unnecessary to address the question of whether the use of the chicken houses had been abandoned. (ZHB Conclusions of Law ¶¶3, 4, R.R. at 22a-24a.) The Township appealed the ZHB decision to the Court of Common Pleas. (Docket Entries, R.R. at 1a.) The court did not receive any additional evidence, concluding that the ZHB record was sufficient to address the issue of whether the chicken houses were a permitted use. (Court of Common Pleas Order of December 10, 2010 at 1 ¶5.) On March 13, 2012, the Court of Common Pleas issued an opinion and order upholding the ZHB's conclusion that the chicken houses are a permitted use under the 2008 Zoning Ordinance and denying the Township's appeal. (Court of Common Pleas Order and Opinion of March 13, 2012.) On April 5, 2012, the Township timely appealed to this Court.*fn1

The sole issue before this Court is whether the ZHB erred in holding that Property Owners' chicken houses are a permitted use in the A-C-I District in which they are located. In considering this question, we must give deference to the ZHB's conclusion that the chicken houses are a permitted use under the language of the 2008 Zoning Ordinance. City of Hope v. Sadsbury Township Zoning Hearing Board, 890 A.2d 1137, 1143 (Pa. Cmwlth. 2006); Smith v. Zoning Hearing Board of Huntingdon Borough, 734 A.2d 55, 57 (Pa. Cmwlth. 1999). It is well settled that "a zoning hearing board's interpretation of its own zoning ordinance is entitled to great weight and deference. Such deference is appropriate because a zoning hearing board, as the entity charged with administering a zoning ordinance, possesses knowledge and expertise in interpreting that ordinance." City of Hope, 890 A.2d at 1143 (citations omitted).

Article IV of the 2008 Zoning Ordinance, which sets forth the uses permitted in each zoning district, provides with ...


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