Opinion
No. 1797 C.D. 2011
06-22-2012
Jean A. Keller, Appellant v. Zoning Hearing Board of the Township of Unity and the Township of Unity
BEFORE: HONORABLE DAN R. PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Jean A. Keller appeals from the August 22, 2011, order of the Court of Common Pleas of Westmoreland County (trial court), which denied her appeal from the decision of the Zoning Hearing Board (Board) of the Township of Unity (Township) denying her requests for a variance and/or special exception to operate her kennel at its current site. We affirm.
The Board joined in the Township's brief on January 3, 2012.
Keller resides at 3614 Route 982 in Latrobe, which is located in an A-Agricultural zoning district, in the Township. Keller moved to the property in 1988 when her father purchased it and became joint owner of the property, with her husband, in 1995. Keller became sole owner of the property in 2006. Keller has continuously run a kennel at this property.
On June 25, 2010, the Township Ordinance/Planning Office mailed Keller a notice of violation, directing her to cease and desist from operating a kennel on her property, because she had neither applied for nor been granted a special exception to operate a kennel thereon. The notice provided that "[a] kennel is a 'special exception use' in the 'A' zoning district and must be approved by the Unity Township Zoning Hearing Board prior to becoming operational." (Notice of Violation at 1.) The notice further provided that Keller was in violation of the Unity Township Zoning Ordinance (Ordinance) §118-701(W), relating to express standards for certain conditional, special exception and permitted uses, specifically kennels. (See id.)
A kennel is defined in the Ordinance as "[a] building or structure, cage or pen used for the purpose of breeding, boarding or selling or raising animals as a hobby, or for private, commercial or professional business." Ordinance §118-203 ("Definitions"). Further, Ordinance §118-701(W) provides:
Kennels. Kennels shall be completely enclosed with a chain-link fence at least six feet high. Dogs housed outside overnight shall be kept within a completely enclosed structure. Kennel buildings and runs shall be at least 100 feet from any property line and the premises shall be maintained in a sanitary manner at all times.
Keller filed an application with the Board, seeking a variance, a special exception, an appeal from the zoning decision and a challenge to the validity of the Ordinance. A hearing on the matter convened on September 14, 2010, but was adjourned until September 28, 2010, in light of information provided by the Township that the Township Board of Supervisors (Supervisors) had conditionally approved the operation of a "breeding" kennel on Keller's property on February 8, 1996.
The Township's Solicitor stated to the Board at the September 14, 2010, hearing that, prior to the Ordinance's amendment in December 2009, kennel operations were classified as a conditional use over which the Supervisors had jurisdiction; after the 2009 amendments, they were classified as a special exception over which the Board has jurisdiction. (N.T., 9/14/10, at 4.) We note that "[a] use or permission authorized by special exception or as a conditional use is a form of permitted use." Robert S. Ryan, Pennsylvania Zoning Law and Practice vol. 1, §5.1.8 (2012).
Keller testified on her own behalf at the September 28, 2010, hearing. Certain neighbors and area residents also testified in opposition to her application. The Board considered the evidence and found in relevant part as follows. On February 8, 1996, the Supervisors gave Keller conditional use approval of a "breeding" kennel business, provided that the kennel would not be a "boarding facility" and that no more than twelve dogs would be permitted in the kennel. (Board's Findings of Fact, No. 4.) Keller's property consists of approximately one acre of land, containing her dwelling, outdoor kennels and dog runs. (Board's Findings of Fact, No. 5.) After the Supervisors' conditional use approval, Keller changed the use of her property from a "breeding" kennel to more of a "rescue" kennel for troubled, abused, mistreated and abandoned dogs. (Board's Findings of Fact, No. 6.) Keller began converting to a "rescue" kennel in 2002, with about twenty-four dogs on her property at that time. (Board's Findings of Fact, No. 7.) The number of dogs on Keller's property continued to increase, such that, in April or May of 2010, she had approximately seventy-five dogs on her property. (Board's Findings of Fact, No. 8.)
The Commonwealth of Pennsylvania, Department of Agriculture (Commonwealth), periodically conducted unannounced inspections of Keller's property and issued reports, which, in this case, revealed an increase in the number of dogs at Keller's facility from twelve dogs in February 2007 to thirteen dogs in October 2007 and from thirty-four dogs in November 2008 to seventy-nine dogs in the most recent inspection report. (Board's Findings of Fact, No. 14.) The most recent inspection report in June 2010 revealed that Keller had an unsatisfactory rating with respect to maintenance, water resistance, and run space. (Board's Findings of Fact, No 15.) Further, a number of Keller's neighbors and other local residents opposed Keller's special exception and variance requests due to the loud barking and strong odors emanating from Keller's property. (Board's Findings of Fact, Nos. 28-31.) Keller testified that her kennel runs are approximately thirty-five feet from one side of her property and twenty feet from the other side. She is therefore seeking approximately a sixty-five-foot variance on one side of her property and an eighty-foot variance on the other side, in order to comply with the 100-foot setback requirement of the Ordinance. (Board's Findings of Fact, No. 34.) Keller's counsel acknowledges that the width of her property prohibits literal compliance with the Ordinance and that relief is necessary in order for Keller to continue the operation of a kennel of this size. (Board's Findings of Fact, No. 35.)
In this regard, Keller stated: "Maintenance, water resistance was marked [sic] unsatisfactory because that is the doghouses [sic] like I mentioned previously. If the houses have even a small portion of shingles removed by the puppies, that becomes a water resistance issue for the pups. And it's also a maintenance issue." (N.T., 9/28/10, at 82-83.)
The Board, crediting the neighbors' and residents' testimonies with respect to the excessive barking and odors emanating from Keller's property, denied Keller's special exception and variance requests. However, sensitive to the practical considerations of terminating Keller's kennel, the Board gave her 120 days to cease the kennel's operation at its present site. Keller appealed to the trial court, which, without taking further evidence, denied her appeal. Keller's notice of appeal to this court followed.
The Board specifically concluded:
[T]he type of variance that [Keller] is seeking to enable her to fit within the special exception criteria is a maximum type variance since the 100 foot set back [sic] provision would have to be varied by 80% on the one side and by approximately 65% on the other side. The Board finds this type of variance unacceptable, given the area in question and the proximity of these kennels to neighboring property owners.(Board's Conclusions of Law, No. 5.)
The Board also concluded:
[V]ariance relief is typically associated with a hardship that would exist to this applicant and her property, the Board in this instance concluding that the hardship that has been created is self-created by the applicant in expanding and increasing the number of dogs from 7, 8 or 9 in 1990's to approximately 70 in 2010-(all without appropriate Township permission). The number of dogs, coupled with the 28 runs and kennels, all placed within a small area on this one acre lot, dictate against the Board granting special exception relief or variance relief in this case.(Board's Conclusions of Law, No. 7) (emphasis in original).
On appeal, Keller first argues that, because the Supervisors had previously approved the operation of a kennel on her property, neither the Township nor the Board can presently deny her the right to operate a "rescue" kennel thereon. In particular, Keller asserts that she is using her property in conformity with the Supervisors' prior approval, and she relies on Scalise v. Zoning Hearing Board, 756 A.2d 163, 167 (Pa. Cmwlth. 2000), for the proposition that "municipalities do not have the power to compel a change in the nature of an existing lawful use of property." Keller's argument lacks merit.
Our scope of review in this land use appeal is limited to determining whether the zoning hearing board committed a manifest abuse of discretion or an error of law. See South Whitford Associates, Inc. v. Zoning Hearing Board, 630 A.2d 903, 907 (Pa. Cmwlth. 1993).
While the Supervisors granted Keller conditional use of her property in 1996 for a "breeding" kennel, they did so with the caveat that Keller not operate a "boarding facility" and that no more than twelve dogs be permitted in the kennel. (Board's Findings of Fact, No. 4.) However, Keller testified that she eventually stopped breeding dogs, (N.T., 9/14/10, at 22); that, when she started her rescue facility in 2002, she maintained twenty-four dogs, (id. at 23); and that, as of the date of the last Commonwealth inspection report, the number of dogs on her property rose to seventy-nine, (id. at 67). Keller further admitted that she did not seek to modify the twelve-dog limit and neither did the Township. (Id. at 62-63.) By her own testimony, then, Keller's use of her property failed to conform to the conditions of the conditional use approval set forth by the Supervisors in 1996. Therefore, this case is not one in which the Township or the Board compelled Keller to change an existing lawful use of her property. Instead, Keller took it upon herself to alter her property's use in violation of the criteria imposed by the Supervisors and without seeking further approvals.
Moreover, Keller's assertion that her "breeding" and "rescue" kennel uses are so similar as to preclude a determination that she has changed the use of her property avail her nothing. Keller contends that these uses are substantially similar because she has not, in either case, "boarded" animals in contravention of the Supervisors' conditional use approval. Clearly, however, Keller's use of her property to house upwards of seventy dogs is a change in the use of her property from a "breeding" kennel with a twelve-dog limit. By limiting Keller's conditional use approval to a small breeding facility, the Supervisors may simply have wanted to ensure that Keller was not housing an unlimited number of dogs on her property indefinitely.
Next, Keller argues that her dog rescue cannot properly be construed as a "kennel" because the nonprofit operation that she maintains is not for purposes of "breeding, boarding or selling or raising animals" in accordance with the definition of "kennel" that is contained in the Ordinance. See generally Ordinance §118-203. To support her position, Keller compares this case to Ruley v. West Nantmeal Township Zoning Hearing Board, 948 A.2d 265, 271 (Pa. Cmwlth. 2008), in which this Court ruled that the animal shelter therein was not a kennel as defined by the local zoning law. Nonetheless, our review of the record, including Keller's land use appeal filed with the trial court, reveals that Keller failed to raise the issue of whether her facility is not a kennel at every stage of the proceedings; thus, the issue is waived. See Morrell v. Zoning Hearing Board, 17 A.3d 972, 976 n.6 (Pa. Cmwlth. 2011) (providing that an issue must be raised at every stage in the proceeding or it will be deemed waived).
In any event, the Supervisors granted Keller conditional use of her property as a kennel in February 1996 in response to her specific request.
Last, we address Keller's argument that the Board and the Township should not have denied her variance and special exception requests in light of the pre-existing, nonconforming use of her property as a kennel. However, our Supreme Court long ago "defined a nonconforming use as the 'use of a building or land that does not agree with the regulations of the use district in which it is situated.'" In re Upper St. Clair Township Grange Zoning Case, 397 Pa. 67, 72, 152 A.2d 768, 771 (1959) (internal citation omitted). Here, a kennel was (and is) a permitted use in the Township's A-Agricultural zoning district if certain express standards were (and are) met; therefore, the law regarding pre-existing, nonconforming uses does not precisely apply. Moreover, Keller's argument that her detrimental reliance on the Supervisors' prior approval of the use of her property as a "breeding" kennel to operate her "rescue" kennel entitles her to a "variance by estoppel" also fails, given the self-created nature of the hardship.
See, e.g., Marshall Chevrolet, Inc. v. Zoning Hearing Board of the City of Reading, 426 A.2d 1236, 1238 (Pa. Cmwlth. 1981) (providing that "[t]he benefit of legal nonconforming use status is available only to that lawful use which existed on the land at the time when the prohibitory zoning (to which the use does not conform) took effect)." (Emphasis added.)
See Vaughn v. Zoning Hearing Board, 947 A.2d 218, 225 (Pa. Cmwlth. 2008) (requiring good faith action on the part of the landowner seeking the equitable remedy of estoppel). --------
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 22nd day of June, 2012, the Order of the Court of Common Pleas of Westmoreland County, dated August 22, 2011, is hereby affirmed.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge