Opinion
No. 589 C.D. 2011
06-04-2012
Sixth Angel Shepherd Rescue, Inc., Appellant v. Zoning Hearing Board of the Borough of Marcus Hook
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Sixth Angel Shepherd Rescue, Inc. (Sixth Angel) appeals from an order of the Court of Common Pleas of Delaware County (trial court) affirming the decision of the Zoning Hearing Board of the Borough of Marcus Hook (Board) upholding the cease and desist order issued to Sixth Angel because it was housing, kenneling and maintaining dogs at its office location without a permit. Discerning no error in the Board's decision, we affirm.
Terry Silva (Silva) is the president, manager and legal counsel for Sixth Angel, a non-profit corporation which is licensed by the Commonwealth to operate a rescue network kennel pursuant to the Dog Law. Sixth Angel rents office space at 13-15 West Tenth Street, a six-unit office building located in the Borough of Marcus Hook (Borough) in Delaware County. This office space is located in a Central Retail District which permits general retail sales, service salons and offices with residential units permitted on the upper levels. According to Sixth Angel, it uses the office space to keep veterinary and transport records and other information on its rescued dogs as required by the Dog Law. On July 8, 2009, the Borough's Zoning Officer issued a zoning permit to Sixth Angel permitting the use of the subject property as an office and permitting a sign for Sixth Angel to be attached to the front of the building. The permit specifically noted, "this use does not provide for the keeping, housing, kenneling, maintaining on the property dogs or other animals offered for sale or adoption." (Reproduced Record (R.R.) at 255a).
Act of December 7, 1982, P.L. 784, 3 P.S. §§459-101 - 1205. Section 102 of the Dog Law defines a "rescue network kennel" as "[a] kennel that utilizes rescue network kennel homes with the goal of ultimately transferring the dog to a permanent owner or keeper through any means of transfer." 3 P.S. §459-102.
According to Article VII, Section 196-33 of the Borough's Zoning Ordinance, the purpose of a Central Retail District "is to create a mixed use area that consists of pedestrian-oriented retail, service, and office uses to serve both regional and neighborhood customers and apartments above the street-level Commercial uses." This section goes on to state that "[u]ses having greater impacts are permitted by conditional use permit."
Article VII, Section 196-34 provides a full list of the uses permitted by right within a Central Retail District as follows:
A. Retail store, including general merchandise, hardware, department or variety store, clothing store, gift shop, bookstore, or pharmacy.
B. Food store, including grocery store, bakery, confectionery, and convenience store where goods are sold at retail.
C. Personal service shop, including barbershop, beautician, shoe repair, tailor, fitness salone or spa, laundry/Laundromat, or similar service establishment.
D. Eating or drinking establishment, including standard eat-in restaurant, pizza shop, delicatessen, or similar use and take-out establishment, but excluding drive-through establishment.
E. Bank or other financial institution.
F. Theater.
G. Apartment, provided that it is located on the second or third floor.
H. Municipal building, library, or similar municipal or public use, except high impact public uses such as storage or repair of municipal trucks or other heavy equipment.
I. Park, plaza, or similar recreational area or meeting place.
J. Office or office building.
K. Medical or dental office or physical therapy clinic.
L. Private club, subject to § 196-122.
After issuing the permit, the Zoning Officer received reports and complaints from Borough residents that numerous dogs were being kept at Sixth Angel's office. In addition, an officer from the Bureau of Dog Law Enforcement (Bureau) submitted a report noting the presence of six dogs on the property during his inspection on February 23, 2010. The Zoning Officer sent Sixth Angel a letter informing it of the need to obtain a zoning permit for kenneling dogs at the property or suffer a cease and desist notice. Sixth Angel did not apply for a permit and Silva responded by letter dated March 31, 2010, stating:
As you know, I am operating a permitted office for a foster home network "kennel license". As you also know my building is occupied as offices and I have always had dogs at this building which do not exceed any potential ordinance requirements nor does my use violate any ordinance. . . . This office at 13 W. Tenth Street operates the offices of the kennel. Additionally there are dogs that I have always fostered at my building. This is a violation of no ordinance and no ordinance requirements. . . . Since I occupy a multi-unit building, no ordinance has been violated. I am consequently not required to apply for a zoning variance.(R.R. at 153a). On April 28, 2010, the Zoning Officer sent a cease and desist order/notice of violation to Sixth Angel to cease and desist its non-office operations at the property. Specifically, the cease and desist notice stated that Sixth Angel was using the property as an intake facility for its rescue network and that housing, kenneling or maintaining dogs on the property that are offered for sale or adoption is not permitted in a Central Retail District under the Borough's zoning ordinance (Ordinance).
Sixth Angel filed an appeal requesting that the cease and desist order be vacated, stating only that the order was "groundless." The Board scheduled a hearing for July 13, 2010; however, Sixth Angel requested and was granted a continuance because Silva was already scheduled to appear in court that day on another matter. The hearing was rescheduled for August 5, 2010; but again, Sixth Angel requested and was granted a continuance due to a death in Silva's immediate family. Sixth Angel had requested a two-week continuance; however, it was not until November 22, 2010, that the Board mailed Sixth Angel a letter stating that the hearing was rescheduled for 7:00 p.m. on December 15, 2010. Sixth Angel then sent a letter to the Zoning Officer requesting yet another continuance because Silva was again scheduled to appear in court outside of Delaware County on another matter. The Board denied the request and neither Silva nor any other representative from Sixth Angel appeared at the December 15, 2010 hearing.
Bruce Dorbian (Mr. Dorbian), Zoning Officer for the Borough, testified before the Board that the property at 13-15 West Tenth Street is located within a Central Retail District and the permitted use of the property is that of an office. Mr. Dorbian testified that a zoning permit was issued to Kira Management, the owner of the property at 13-15 West Tenth Street, on July 8, 2009. The permit contained a notation stating, "[t]his use does not provide for the keeping, housing, kenneling, maintaining on the property dogs or other animals offered for sale or adoption." (R.R. at 109a). Despite this warning, Mr. Dorbian received a copy of an inspection report produced by the Bureau on February 23, 2010, indicating that there were six dogs on the premises at the time of the inspection. The Bureau also notified Mr. Dorbian that the subject property was being used as an intake adoption facility for dogs and that it was being considered for a rescue network kennel license. If the license was granted, Sixth Angel would be permitted to pass up to 250 dogs per year through its network. Mr. Dorbian testified that on one occasion, he personally observed a van pull up to the property from which at least three or four dogs entered Sixth Angel's office building. In addition, Mr. Dorbian received a series of complaints related to dogs barking, running at large and other related issues at the subject property.
Given all of these facts, Mr. Dorbian sent a letter to Silva and Sixth Angel indicating that Sixth Angel had not applied for or received zoning approval to operate a kennel at the premises, and that using the property as an intake facility for rescue dogs was inconsistent with Chapter 196, Section 33 of the Ordinance regarding permitted uses within a Central Retail District. Mr. Dorbian explained in the letter that Sixth Angel could apply for a conditional use permit; however, Sixth Angel refused to do so, indicating that dogs had always been present on the property and that its use of the property was not in violation of the Ordinance. Therefore, Mr. Dorbian sent a cease and desist letter to Sixth Angel maintaining that it was operating a rescue dog intake facility on the premises, meaning that dogs are received and first lodged at the property before being transferred to a foster home. Mr. Dorbian explained that this use of the property was inconsistent with the Ordinance and Sixth Angel was ordered to cease and desist its non-office operations at 13-15 West Tenth Street
Board Member James Schiliro (Mr. Schiliro) testified that on one occasion, he observed a truck pull up to the property and four dogs were taken into Sixth Angel's office. Mr. Schiliro testified that on another occasion, he observed a gentleman come out of Sixth Angel's office with two dogs, walk the dogs to a grassy area across the street, return them to the building, and then do the same thing with two different dogs. Finally, Mr. Schiliro testified that he previously observed four dogs in the rear of the property penned in a makeshift holding area.
The Board unanimously affirmed the cease and desist order, finding that dogs are being kept, boarded or kenneled at the subject property in violation of the Ordinance. The Board found Mr. Dorbian's testimony to be credible and noted that Sixth Angel and Silva admitted to keeping dogs at their 13-15 West Tenth Street office. In addition, numerous reports and complaints were received about dogs being kept at the property and the Bureau's report indicated that six dogs were present during the inspection. The Board noted that the Dog Law does not preempt local regulation such as a zoning ordinance; therefore, Sixth Angel's license from the state to operate a rescue network kennel does not supersede the permitted use provisions of the Ordinance. The Board determined that Sixth Angel was operating a dog kennel in a Central Retail District and that the permitted office use of the property does not include keeping, housing or maintaining dogs while they are waiting to be adopted or transferred. The Ordinance states that a zoning permit is required "prior to the use or change in use of a building or land; and prior to the change or extension of a nonconforming use or structure." Ordinance Chapter VII, Section 196-166(A). Sixth Angel failed to obtain or even apply for a zoning permit; therefore, the Board upheld the cease and desist order.
Sixth Angel appealed to the trial court which affirmed the Board's order, finding that an office use under the Ordinance does not provide for the housing, kenneling and maintaining on the property dogs or other animals offered for sale or adoption. While the trial court did not allow the introduction of any additional evidence, it should be noted that Sixth Angel was permitted to present all of its arguments in support of its appeal despite the fact that it did not appear at or participate in the hearing before the Board. This appeal followed.
In a zoning appeal where, as in the present case, the trial court took no additional evidence, this Court's review is limited to determining whether the Board committed an error of law or abuse of discretion. Glenside Center, Inc. v. Abington Twp. Zoning Hearing Bd., 973 A.2d 10, 15 n.11 (Pa. Cmwlth. 2009) (citations omitted). An abuse of discretion occurs when the findings of the Board are not supported by substantial evidence. Id. Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Valley View Civic Association v. Zoning Bd. of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983). --------
First, we note that we agree with the trial court's assessment "that this is a relatively simple zoning matter that Sixth Angel has sought to complicate." (Trial Court's June 2, 2011 Opinion at 3). Sixth Angel's brief to this Court lists seven questions presented and outlines 13 different arguments, which we will address seriatim beginning with the procedural arguments. First, Sixth Angel argues that the Board's failure to schedule a hearing within 45 or 60 days of the date of the previously scheduled hearing should result in a deemed approval of Sixth Angel's appeal pursuant to the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101 - 11202. Section 908 of the MPC states, in pertinent part:
(1.2) The first hearing before the board or hearing officer shall be commenced within 60 days from the date of receipt of the applicant's application, unless the applicant has agreed in writing to an extension of time. Each subsequent hearing before the board or hearing officer shall be held within 45 days of the prior hearing, unless otherwise agreed to by the applicant in writing or on the record.
53 P.S. §10908. The initial hearing before the Board was scheduled to be held on July 13, 2010, 48 days after Sixth Angel filed its appeal and, therefore, within the 60 day time frame specified in Section 908(1.2) of the MPC. The hearing was then continued twice at the written request of Sixth Angel and its counsel. Because Sixth Angel agreed to and specifically requested that the hearings be continued, it cannot turn around and claim its appeal should be deemed denied because the hearing was not held within 60 days. If this were the case, applicants before the Board could manipulate the system and guarantee deemed approval of their appeals by simply requesting continuances beyond the 60-day timeframe. As we have previously stated, "Section 908(9) was designed to curb the evils of procrastination, delay and frustration of decision," Grim v. Borough of Boyertown, 595 A.2d 775, 779 (Pa. Cmwlth. 1991), brought on by inactivity of a zoning hearing board, not to reward applicants for manipulating the system by repeatedly requesting continuances. In addition, Sixth Angel was not prejudiced by the delay in the proceedings as enforcement of the cease and desist order was stayed pending its appeal. As the trial court noted, the second part of Section 908(1.2) of the MPC regarding the scheduling of subsequent hearings in not applicable because only one initial hearing was ever held before the Board.
. . .
(9) . . . where the board fails to render the decision within the period required by this subsection or fails to commence, conduct or complete the required hearing as provided in subsection (1.2), the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed in writing or on the record to an extension of time.
Dovetailing into this issue, Sixth Angel also argues that the Board abused its discretion by denying Sixth Angel's third request for a continuance when Silva was already scheduled to appear in another court that day on a separate matter. Sixth Angel argues that the Board's decision to go ahead with the hearing on December 15, 2010, violated its due process rights because Sixth Angel was precluded from presenting evidence, cross-examining witnesses and being represented by counsel at the hearing. While due process mandates that a party be afforded notice and an opportunity to be heard, Sixth Angel admits to receiving proper notice and was afforded the opportunity to be heard, yet voluntarily chose not to appear at or participate in the hearing before the Board. The hearing was scheduled for 7 p.m. on December 15, 2010. Silva could have rearranged her schedule during the day to accommodate this evening hearing, and Sixth Angel could have secured alternate counsel or sent another representative to the hearing on its behalf.
Sixth Angel also argues that additional evidence should have been taken by the trial court because the record is incomplete and the trial court abused its discretion by failing to hold additional hearings. However, the decision whether to hear additional evidence in a zoning appeal matter lies within the discretion of the trial court. Wilson v. Plumstead Township Hearing Board, 894 A.2d 845 (Pa. Cmwlth. 2006), aff'd, 594 Pa. 416, 936 A.2d 1061 (2007). "A court of common pleas faces compulsion to hear additional evidence in a zoning case only where the party seeking the hearing demonstrates that the record is incomplete because that party was denied the opportunity to be heard fully, or because relevant testimony was offered and excluded." Danwell Corporation v. Zoning Hearing Board of Plymouth Township, 520 Pa. 620, 540 A.2d 588, 590 (Pa. Cmwlth. 1985), appeal denied, 554 A.2d 511 (1988). As neither of these situations apply, it was within the trial court's discretion whether to take additional evidence in this case.
Finally, as to the merits of the case, Sixth Angel freely admits to keeping multiple dogs at its office. Mr. Dorbian and Mr. Schiliro credibly testified to seeing three or four dogs being dropped off in a van and walked into Sixth Angel's office on separate occasions. Mr. Schiliro also testified to witnessing multiple dogs being taken out of the office for walks and seeing four dogs penned in the back of the property in a makeshift holding area. Finally, the Bureau's report indicates that six dogs were on the premises during its February 23, 2010 investigation. This is more than substantial evidence to support the Board's conclusion that Sixth Angel was keeping, housing, kenneling or maintaining dogs on the property.
The crux of the case comes down to whether keeping, housing, kenneling or maintaining dogs at an office located within a Central Retail District constitutes a violation of the Ordinance. According to Sixth Angel, the office at 13-15 West Tenth Street is used to maintain paperwork including veterinary records, transport logs, foster home checks, home visit reports and the processing of adoption applications. Sixth Angel maintains that the dogs it rescues are cared for in foster homes and that the office building does not contain any actual dog kennels. While Sixth Angel admits to an indeterminate number of dogs being present at the office building, it argues that merely having dogs there does not turn the office into a "dog intake facility." In addition, Sixth Angel points out that the Ordinance does not define or address the terms "dog intake facility" or "kenneling" and that an intake facility is generally recognized as an animal control center such as those run by the Society for the Prevention of Cruelty to Animals (SPCA). Finally, Sixth Angel points out that retail stores, medical offices, barber shops and salons are all permitted uses within a Central Retail District and these permitted uses would be consistent with pet stores, pet grooming salons or veterinarian offices. Therefore, the presence of dogs at Sixth Angel's office cannot be said to be inconsistent with such permitted uses. We disagree.
As stated earlier, the purpose of a Central Retail District is defined by the Ordinance as creating "a mixed use area that consists of pedestrian-oriented retail, service, and office uses," and "[u]ses having greater impacts are permitted by conditional use permit." Article VII, Section 196-33. Sixth Angel was granted a permit to use the subject property as an office. Operating a dog intake facility or a kennel for dogs awaiting adoption or transfer is not specifically listed in the uses permitted by right in a Central Retail District. These uses would necessarily have a greater impact than that of an office, service or retail store; therefore, Sixth Angel was required to obtain a conditional use permit in order to continue using the property as such. Article VII, Section 196-35 of the Ordinance states that a conditional use is any use of the same general character as the uses specifically permitted within the district, and conditional uses may not be detrimental to the surrounding neighborhood. We agree with the Board that the customary meaning of the term "office" does not include keeping, maintaining or housing dogs. Operating a dog intake facility where dogs are dropped off or kept before being transferred to a foster home is not a use of the same general character as an office or any other use permitted by right in a Central Retail District, such as a retail store, food store, personal service shop, bank, theater or eating or drinking establishment. We do not find persuasive Sixth Angel's argument that pet stores, pet grooming salons and veterinarian offices would be permitted in the district and that a dog intake facility or kennel is of the same general character as these uses. Sixth Angel's use of the property is simply not compatible with the pedestrian-oriented uses in the district and there is more than substantial evidence to support the Board's conclusion.
Accordingly, for all of the foregoing reasons, the orders of the trial court are affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 4th day of June, 2012, the orders of the Court of Common Pleas of Delaware County, dated March 4, 2011, and March 14, 2011, are affirmed.
/s/_________
DAN PELLEGRINI, President Judge