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Kohl v. New Sewickley Twp. Zoning Hearing Bd.

Commonwealth Court of Pennsylvania

January 21, 2015

Noreen Kohl and Richard Kohl
v.
New Sewickley Township Zoning Hearing Board
v.
William Layton and Barbara Layton, Appellants

Argued, November 10, 2014

Patrick M. Livingston, Pittsburgh, for appellants.

Matthew D. Monsour, Pittsburgh, for appellees, Noreen and Richard Kohl.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.

OPINION

Page 962

McCULLOUGH,  JUDGE

Barbara and William Layton (Intervenors) appeal from the December 27, 2013 order of the Court of Common Pleas of Beaver County (trial court), which reversed an order of the New Sewickley Township (Township) Zoning Hearing Board (ZHB), concluding that the dog-rescue operation run by Richard and Noreen Kohl (Applicants) was a non-permissible " kennel" under the Township's zoning ordinance (Ordinance)[1] and denying Applicants'

Page 963

request for a variance. The trial court determined that because Applicants did not receive " economic gain" or a profit for their efforts, their dog-rescue operation was not a " kennel" and, therefore, was not a prohibited land use under the Ordinance. Upon review, we conclude that the term " kennel" as used in the Ordinance is ambiguous, and as we must construe that ambiguity in favor of Applicants as the landowners, we affirm.

Facts and Procedural History

Applicants own and reside on two acres of property at 805 Hartzel School Road, New Brighton, Beaver County, which is located within a suburban residential (R-1) district. For the past eleven years, Applicants have operated a rescue facility for large dogs (typically weighing over 100 pounds) out of their residence named " Gentle Ben's." Applicants obtain -- and have obtained -- the dogs through animal shelters, kennels, police departments, and individuals, and they keep any dog that is not adopted. The dogs are housed and fed in Applicants' residence and remain there during the night. Applicants use one acre of their land as a fenced-in area for the dogs to exercise and deposit waste; the waste is collected daily and stored in closed containers. Applicants are licensed by the Pennsylvania Department of Agriculture as a nonprofit kennel pursuant to the Pennsylvania Dog Law (Dog Law).[2] Although Applicants' receive monetary donations or adoption fees and donations in the form of dog food, they do not charge any fees for accepting the dogs and do not derive any profit from the operation of Gentle Ben's. (ZHB's Findings of Fact Nos. 1-7, 32; Trial court op. at 5-7.)

On September 10, 2012, Intervenors, Applicants' adjoining neighbors, made a complaint to the zoning officer regarding the dogs barking. The zoning officer contacted Applicants the next day and informed them that a kennel was not a permitted use under the Ordinance and that they would be required to seek a variance to continue the operation of Gentle Ben's. On December 13, 2012, Applicants filed an application for a variance to operate a nonprofit dog-rescue shelter.[3](Trial court op. at 7-8.)

Page 964

On January 22, 2013, and March 6, 2013, the ZHB conducted hearings at which Applicants, Intervenors, several neighbors, and Barry Fowler, the Township's zoning officer, testified. (ZHB's decision at 1.)

Applicants presented a folder of information containing numerous photographs of the large dogs and a summary explaining how the dogs were obtained and whether they still reside with Applicants or have been adopted. Applicants also read several letters and emails written by animal shelters and people who support Gentle Ben's and submitted pictures of food that has been donated by dog food companies. When questioned by the ZHB, Applicants stated that the quantity of dogs that they possess varies, usually between twenty-five to forty dogs, and added that not all of the dogs are adoptable and will stay with them for the remainder of their lives. Applicants further stated that the dogs use a doggie door to exit the residence and enter the one-acre area that is fenced in. (ZHB's Findings of Fact Nos. 8-9; Trial court op. at 16.)

Applicants informed the ZHB that they were recently inspected by the Commonwealth's Dog Warden and received positive remarks regarding their operation, and they submitted copies of their 2012 Kennel License and 2013 Kennel License Application to the Dog Law Enforcement Office. Applicants explained that they are the only people who care for and maintain the dogs and they both work, although Applicant Richard Kohl has recently been laid off. (ZHB's Findings of Fact No. 29; Trial court op. at 16.)

Several neighbors gave testimony supporting Gentle Ben's, stating that the dogs are friendly, fun to be around, and are not a nuisance. The neighbors also testified that the dogs do not roam the neighborhood and that the odor of manure used to spray neighboring farm fields contribute more to a foul smell than the dogs' waste. (ZHB's Findings of Fact Nos. 18, 34.)

Fowler testified that the Township does not have an Ordinance limiting " the number of animals a resident can own. If they want to have 2, 10, 20, 25, [the Township has] nothing on the books restricting the number of pets that are privately owned." (Reproduced Record (R.R.) at 113a.) A ZHB member asked Fowler if a kennel must be for-profit to fall under the definition in the Ordinance, and Fowler responded affirmatively. The ZHB member then stated, " So if it's not-for-profit, it's not a kennel." (R.R. at 112a-13a.)

Intervenors testified that they observed Applicants' dogs attacking other dogs and escaping from Applicants' property. Intervenors stated that Applicants' dogs have threatened to attack them and their small dog. In addition, Intervenors testified that they are worried about other wild

Page 965

animals feeding off the dog food stored in Applicants' garage and expressed their concern that the value of their property is ...


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