W. Alfaro & R. Alfaro v. Upper Makefield Twp. ZHB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Waldo Alfaro and Rosie Alfaro, :

Appellants :

:

v. : No. 502 C.D. 2023

: ARGUED: June 3, 2025

Upper Makefield Township Zoning :

Hearing Board :

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE MATTHEW S. WOLF, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: June 30, 2025

Appellants, Waldo Alfaro and Rosie Alfaro, appeal from an order of

the Court of Common Pleas of Bucks County, denying their appeal from the decision

of the Upper Makefield Township Zoning Hearing Board. The Board’s decision

denied Appellants’ appeal from the Township’s Enforcement Notice and denied

their request for multiple variances. We affirm.

I. Factual and Procedural Background

The facts of this case are largely undisputed. Appellants own property

located at 675 Eagle Road (Property) in the Township. 4/1/2022 Board Decision,

Finding of Fact (F.F.) Nos. 2-3; Reproduced Record (R.R.) at 478.1 The Property

totals 8.79 acres and is located in the Township’s Conservation Management (CM)

Zoning District. F.F. No. 6. Pursuant to Section 401.A.1 of the Joint Municipal

1

We note that the Reproduced Record is not numbered pursuant to Pennsylvania Rule of

Appellate Procedure 2173, Pa.R.A.P. 2173, with an “a” after the page numbers.

Zoning Ordinance (Ordinance),2 the following are permitted uses in the CM Zoning

District: “Agriculture and Horticulture, use A-1,” “Intensive Agriculture, use A-2,”

and “Roadside Stands for Agricultural Products Grown on Site, use H-15.A.”

Ordinance § 401.A.1. Both Agriculture and Horticulture and Intensive Agriculture

are principal uses, while Roadside Stands are accessory uses. “Agricultural

Entertainment Uses, use H-15.C,” are allowed as conditional uses in the CM Zoning

District. Ordinance § 401.A.2.

Appellants have resided on the Property since 2006. F.F. No. 3.

Appellants admittedly began operating a business on the Property known as Earth’s

Best Organics Farm (Earth’s Best) in March 2020. F.F. No. 28(a). Initially, Earth’s

Best involved the keeping of chickens and production of chicken eggs. F.F. No.

28(b). However, it quickly expanded to include: the sale of various types of poultry,

both live and slaughtered; the keeping of a cow, donkeys, sheep, and pigs, and the

sale of these animals, both live and slaughtered; and the sale of rabbits, dogs, guinea

pigs, peacocks, pigeons, and doves. F.F. No. 28(b)-(e). Appellants also installed a

farm stand where they sell various items. F.F. No. 28(g). The expansion of Earth’s

Best culminated in Appellants inviting the public onto the Property and charging

admission fees, as well as additional fees to interact with and feed the animals. F.F.

No. 28(k)-(m), (o)-(p). Appellants also began hosting events for additional fees

including birthday parties, picnic table rentals, and riding small battery-operated

vehicles, and they installed recreational equipment including a swing set, sliding

board, climbing wall, and trampoline. F.F. No. 28(n), (q)-(r).

In June 2021, the Township issued Appellants a Zoning Enforcement

Notice (Notice) listing the following eight violations of the Ordinance:

2

Joint Municipal Zoning Ordinance for Newtown Township, Upper Makefield Township,

and Wrightstown Township, 2006 (Ordinance).

2

a. Ordinance § 1403.A.1, pertaining to use permits, which

provides as follows:

“1. Requirements of Use Permits. It shall be

unlawful for any person to make any use of any

building, farming unit, or other structure or land

until a use permit has been duly issued therefore.

Use permits shall be required prior to any of the

following:

a. Use of any building or other structure

hereinafter erected, altered, or enlarged for which a

building permit or frontage improvement permit is

required;

b. Change in use of any building or structure;

c. Use of land or change in the use thereof,

except that the placing of vacant land under

cultivation shall not require a use or occupancy

permit;

d. Change in use or expansion of a

nonconforming use.”

b. Ordinance § 803.H-15.1.a, pertaining to the agricultural

accessory use of “Roadside Stands for Sale of Agricultural

Products Grown on Site,” which provides, in pertinent

part:

“Agricultural products grown by the residents of the

property may be sold at a roadside stand on the

property. Each roadside stand shall sell only

products grown by the residents of the property on

which the stand is located. Each roadside stand

must not exceed a maximum size of 400 square feet

and must also provide, to the Township’s

satisfaction, a safe means of egress and ingress

from a public street as well as sufficient off-street

parking to accommodate customers.” (Emphasis

added).

3

c. Ordinance § 803.H-15.1.b.(1), pertaining to the

agricultural accessory use of “Agricultural Sales of Farm

Products,” which provides:

“The sale of food, farm and/or agricultural products

to the general public shall be permitted, subject to

the following regulations: (1) The minimum lot area

shall be 10 acres.”

d. Ordinance § 803.H-15.1.b.(4), which provides:

“Agricultural sales of farm products use is strictly

an accessory use which shall be clearly subordinate

to principal uses A-1 [Agriculture and

Horticulture], A-2 [Intensive Agriculture] and A-6

[Commercial Nursery and Greenhouse].”

e. Ordinance § 803.H-15.1.c.(2), pertaining to Agricultural

Entertainment Uses,” which provides:

“The use of a farm for seasonal festivals related to

products grown on the farm, craft fairs (including

antique shows), municipally-sponsored events,

hayrides and horse shows.

...

(2) The agricultural entertainment use is

permitted as an accessory use only. If any of the

conditions to which the agricultural principal use is

subject cease to be met, then the agricultural

entertainment use shall also cease.”

f. Ordinance § 803.H-15.1.c.(3), which requires a

minimum lot size of 25 contiguous acres for Agricultural

Entertainment Uses.

g. Ordinance § 803.A.A-1, pertaining to the principal

agricultural use of Agriculture and Horticulture, which

sets limitations on the number of grazing and non-grazing

animals.

4

h. Ordinance § 803.A-2, pertaining to the principal

agricultural use of Intensive Agriculture, which requires a

minimum of 10 acres.3

In response, Appellants submitted to the Township a zoning use permit application

to operate a “roadside stand for sale of agricultural products grown on[-]site, . . . and

. . . agricultural sale of farm products[.]” R.R. at 3. The Township denied the

application because it was incomplete. R.R. at 7.

Appellants then submitted an application to the Board appealing the

Notice and requesting several variances. R.R. at 9-12. In their statement in support,

Appellants specified that they were appealing the Notice with respect to the

violations at subparagraphs b, d, e, and f only. R.R. at 13. Appellants also sought

variances with respect to the violations at subparagraphs b, c, g, and h of the Notice.

Id. Regarding the violation for ingress/egress and parking, Appellants alternatively

proposed “to widen the narrow portion of the driveway” and “to clear up the central

portion of the [P]roperty to place 25 marked parking spaces for guests to utilize.”

R.R. at 14. Neither Appellants’ application form nor their statement in support

thereof mentions preemption. R.R. at 9-14.

At public hearings before the Board, the Township presented the

testimony of Denise Burmester, the Assistant Zoning Officer and Code Enforcement

Officer. Burmester testified that in addition to Appellants’ residence, there are a

number of sheds on the Property, none of which is permitted. F.F. No. 25(e). In

fact, the Township has not issued a use permit for the Property, agricultural or

3

To aid in analysis, the language above combines pertinent portions of the Notice and the

provisions of the Ordinance that Appellants were charged with violating. The exact language of

the Notice can be found at pages 1-2 of the Reproduced Record. The Ordinance can be found at

Exhibit A of Appellants’ exhibits in support of their land use appeal, or here:

https://ecode360.com/NE3758 (last visited June 27, 2025).

5

otherwise, or a building permit for any accessory structures or improvements thereon

since at least 2008. F.F. No. 25(f)-(h). Burmester opined that a use permit was

required for Appellants’ new business use of the Property pursuant to Section

1403.A.1 of the Ordinance. F.F. No. 25(g)-(h); R.R. at 77-78.

Regarding subsection b of the Notice relating to roadside stands,

Ordinance § 803.H-15.1.a, Burmester testified that Appellants did not submit to the

Township a plan for off-street parking, a traffic plan, or a plan for ingress and egress.

F.F. No. 25(i); R.R. at 79. She was aware of complaints that people visiting the

Property were parking along Eagle Road, which has “maybe five feet” of shoulder,

and she was aware of safety concerns given the bend in Eagle Road at Appellants’

driveway. R.R. at 79-80, 102.

Based on Burmester’s inspection, less than half of the Property’s 8.79

acres was used for livestock, and she did not observe any crop production or other

agricultural production. F.F. No. 25(l)-(m); R.R. at 81-82. Burmester estimated that

there were over 200 heads of poultry on the Property, in excess of the 150-170

permitted by the Ordinance given the Property’s acreage. F.F. No. 25(q); R.R. at

85-87. The Township introduced evidence that its previous Zoning Officer, who has

since passed away, observed over 500 heads of poultry on the Property in 2020. F.F.

25(r); R.R. at 86. Burmester confirmed that there are other animals on the Property,

but the violation in the Notice was issued with respect to poultry. R.R. at 87-88. It

was Burmester’s opinion that Appellants’ use of the Property was akin to a petting

zoo given the public’s admittance to view, feed, learn about, and interact with the

animals, and thus qualified as an Agricultural Entertainment Use under the

Ordinance. F.F. No. 25(n), (p), (t); R.R. at 83-84, 90. An Agricultural Entertainment

Use requires a minimum lot size of 25 acres and is only permitted under the

6

Ordinance as an accessory use to agricultural production, which does not occur on

the Property. Id.

Notably, Counsel for Appellants clarified for the Board that his clients

knew they needed certain permits and that the violations in subsections a, c, g, and

h of the Notice were “not an issue.” R.R. at 103. See also R.R. at 229 (Appellants’

Counsel stated: “So we are challenging only a few portions of that enforcement

[N]otice directly.”). Thus, Appellants’ Counsel did not cross-examine Burmester

regarding those violations. R.R. at 103.

The Township also presented the testimony of Don Meadows, Sewage

Enforcement Officer for the Bucks County Department of Health. F.F. No. 15; R.R.

at 54. Meadows’ testimony centered on the failing septic system for Appellants’

house, which is the subject of a separate non-traffic citation.4

Beverly Haring, who lives at 645 Eagle Road immediately adjacent to

the Property, testified as a witness for the Township and was granted party status.

F.F. 12(a); R.R. at 29-30, 51-52. Haring shares a property line with Appellants and

her house is approximately 30 feet from that line. F.F. 12(b); R.R. at 30. Haring

believed there were approximately 400 chickens on the Property as well as horses,

donkeys, ostriches, pigs, goats, sheep, ducks, and rabbits. F.F. 12(c); R.R. at 33-34.

Chickens from Appellants’ Property appear in Haring’s front yard every day, and

other animals such as peacocks, sheep, pigs, and ostriches have come onto her

property as well. F.F. No. 12(f); R.R. at 33, 46-47. Haring stated that there are

significant unpleasant odors and sounds emanating from the Property which have

4

Appellants failed to appear for the non-traffic citation hearing on the septic violation and

were found guilty in absentia. F.F. No. 16(m)-(n); R.R. at 59. According to Meadows, Appellants’

current system is not appropriate for their single-family residential use, let alone the additional use

given that members of the public who visit the Property are allowed to use Appellants’ bathroom,

and the system remains unpermitted. F.F. No. 16(f)-(i); R.R. at 60, 67.

7

affected her and her family. F.F. No. 12(i)-(j); R.R. at 48-49. She was unaware of

any portable toilet facilities on the Property and has observed visitors relieving

themselves along her property line. F.F. No. 12(h); R.R. at 47-48.

In addition, Haring has observed at least 100 visitors to the Property on

any given Saturday with cars parked along either side of Eagle Road. F.F. No. 12(g);

R.R. at 45. She also testified to challenging road conditions along Eagle Road,

including a bend and a hill that crests at Appellants’ Property, with numerous

accidents occurring in the vicinity. F.F. No. 12(e); R.R. at 44.

Debora and Michael Spiro, who live at 1151 Eagle Road and own the

property next to Appellants at 725 Eagle Road, also testified and were given party

status. R.R. at 117. Mrs. Spiro first remembered animals being on the Property in

the spring of 2020 when approximately 200 chickens arrived. R.R. at 144. When

Mrs. Spiro went onto the Property in 2020, she observed “a lot” of people on the

premises and Appellants selling items such as honey, milk, fruit, and vegetables.

R.R. at 146. Neither of the Spiros ever saw any crops being cultivated on the

Property. R.R. at 147, 183. Mrs. Spiro observed commercial passenger vehicles

such as buses and trucks going to the Property. R.R. at 168.

On another occasion, Mrs. Spiro paid an admission fee to enter the

Property and described seeing 20 to 25 cars parked; farm stands with various items

for sale; 2 ostriches, 2 cows, horses, 2 donkeys, pigs, 5 to 7 goats, at least 2 dozen

ducks, 15 to 20 doves, 12 to 15 turkeys, 2 peacocks, and hundreds of “chickens

everywhere”; and a pen where children were allowed to interact with small animals.

R.R. at 148-62. Pictures Mrs. Spiro took that day were entered into evidence,

including those of signs advertising the prices for admission, riding and feeding the

animals, picnic-table use, and birthday parties. R.R. at 151-52. Mrs. Spiro also

8

observed a trampoline, small electric cars, sliding boards, a rock wall, and swings.

R.R. at 162. Mrs. Spiro used the restroom in Appellants’ house while she was there.

R.R. at 163. At no point during her visit was Mrs. Spiro given a tour or any

educational information or instruction on caring for the animals. R.R. at 154.

Mr. Spiro testified that he was at his 725 Eagle Road property about

five days a week performing renovations, including over weekends. F.F. No. 22;

R.R. at 171-72. On Saturdays and Sundays in particular, he observed “[a]n intense

amount of cars coming from Newtown trying to access the [P]roperty making that

left-hand turn[.]” R.R. at 173; F.F. No. 23(c). The volume of cars and narrow

driveway creates a bottleneck of traffic, sometimes spilling out onto Eagle Road,

and video Mr. Spiro took of such traffic was admitted into evidence. F.F. No. 23(c),

(f); R.R. at 175-77. Mr. Spiro explained that the Property is located at the crest of a

hill and that there is no visibility of the driveway before navigating the turn in Eagle

Road. F.F. No. 23(a)-(b); R.R. at 173-74. He has also seen vehicles parked in the

grass along both sides of Eagle Road, and has had numerous people drive up his

driveway and inquire about the Property. R.R. at 177, 367. The Spiros ultimately

stopped renovating their property at 725 Eagle Road “[b]ecause [they] felt [they]

were not going to be able to sell it with what was going on next door.” R.R. at 145;

see also R.R. at 366-67.

For her part, Mrs. Alfaro testified that Earth’s Best began in 2020 with

the keeping of chickens and the production of chicken eggs and honey on the

Property. F.F. No. 28(a)-(b); R.R. at 224, 258. She admitted that the business has

expanded to include the keeping and sale of the other animals outlined above, as

well as 33 bee colonies. F.F. No. 28(b)-(e); R.R. at 224-25, 258-59. Appellants’

“vegetable garden is not that substantial” and their fruit trees “are still very young[.]”

9

R.R. at 225. Appellants do allow the public onto the Property to see and interact

with the animals and to host birthday parties, all for set fees, and they characterize

this activity as “agritourism.” F.F. No. 28(i)-(k); R.R. at 226-27, 262, 266. Mrs.

Alfaro claimed that they earned more than $10,000 in gross income from their

“farming operations” in both 2020 and 2021, but these figures include admission

prices. F.F. 28(u); R.R. at 227, 264.

Appellants’ farm stand is approximately 360 square feet and is located

about 300 feet back from Eagle Road. F.F. No. 28(h); R.R. at 229-30. “[A]s a

courtesy,” Appellants sell snacks and drinks at the farm stand that are not produced

on the Property. F.F. No. 28(g), (v); R.R. at 230, 268. Appellants applied to place

portable toilets on the Property for the public’s use, but the Township denied the

request; therefore, they allow members of the public to use the bathroom inside their

residence. R.R. at 244-68.

On cross-examination, Mrs. Alfaro admitted that they did not request a

zoning permit before starting either the roadside stand use or the sale of agricultural

products use, and that they did not have any permits at the time of the hearing. R.R.

at 254, 280. She also conceded that the trampoline and rock climbing wall do not

serve any purpose in their normal agricultural operations other than keeping children

occupied while their parents make purchases. R.R. at 263. Further, Appellants

brought pumpkins onto the Property to create a seasonal photo opportunity for guests

and may sell pumpkins in the future. F.F. No. 30-31; R.R. at 267. They also plan

to grow and sell Christmas trees. F.F. No. 32; R.R. at 322.

Appellants also presented the testimony of Nicolas Biondi, a nutrient

management specialist licensed by the Commonwealth and accepted by the Board

as an expert in the field of nutrient management. F.F. Nos. 33-35; R.R. at 188-89.

10

Biondi visited the Property and admitted that “[t]here are no crops associated with

this farm[.]” R.R. at 201. Biondi created a nutrient management plan for the

Property after Appellants appealed, and the plan was subsequently approved by the

Bucks County Conservation District. F.F. Nos. 37-38; R.R. at 200, 390-91. Biondi

believed that Appellants’ use of the Property qualified as a concentrated animal

operation that is governed by Chapter 3 of the Agricultural Code (Act 38 or ACRE)5

and that the Ordinance’s restrictions on intensity of farm use are preempted by

various state laws.6 F.F. Nos. 36, 40-41; R.R. at 197-200. Notably, there was no

mention of preemption during the first Board hearing or even prior to the Township’s

resting its case. The issue was raised for the first time during Biondi’s testimony.

See R.R. at 205-10.

The Board issued a decision and order denying Appellants’ appeal of

the Notice, finding that the Township presented substantial credible evidence to

support all eight violations. The Board also denied Appellants’ request for variances

because they failed to present any evidence of hardship and because they could make

reasonable use of the Property in compliance with the Ordinance.7 Finally, the Board

concluded that it could not render a decision on the preemption claim because (1)

Appellants did not raise a substantive challenge to the Ordinance in their appeal and

5

3 Pa.C.S. §§ 311-318. Act 38, “which took effect July 6, 2005, governs local regulation

of normal agricultural operations so that such operations are consistent with state policies and

statutes.” Off. of Att’y Gen. v. Richmond Twp., 917 A.2d 397, 399 (Pa. Cmwlth. 2007).

6

Biondi’s testimony in this regard constitutes an improper legal conclusion and was

recognized as such by the Board in its opinion.

7

Regarding the requested variances, the Board also “conclude[d] that the Township

presented ample evidence demonstrating that the current use of the Property results in significant

disruption and negative impacts on surrounding properties, on Eagle Road, and on the neighboring

community.” Conclusion of Law (COL) No. 83. The Board specifically cited the intensity of the

use, the density of the animal population, traffic volume and safety issues, noise, odors, insufficient

sanitary facilities, and ongoing septic system violations. COL Nos. 84-85.

11

the issue therefore was not properly advertised as part of the Board proceedings

under the Pennsylvania Municipalities Planning Code (MPC);8 and (2) the

preemption claim was beyond the Board’s purview.

Appellants appealed to the trial court and the Township intervened.

The trial court affirmed without taking additional evidence and the appeal to this

Court followed.9

II. Issues

The issues raised by Appellants are: (1) whether the trial court erred in

affirming the decision of the Board because there was not substantial evidence to

support the violations cited in subsections b, d, e, and f of the Notice; 10 and (2)

whether the trial court erred in affirming the Board’s decision because the provisions

of the Ordinance pertaining to the agricultural use of the Property and the intensity

of that use are preempted by state law.11 The Township counters that Appellants’

preemption claim was not properly raised below, pursuant to the MPC, and has

therefore been waived.

8

Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.

9

The Board failed to file a brief with this Court and was therefore precluded from

participating in oral argument. See Cmwlth. Ct. Order 11/18/24.

10

As noted above, Appellants’ statement in support of their appeal to the Board specified

that they were only substantively appealing the violations at subparagraphs b, d, e, and f of the

Notice. R.R. at 13. Counsel for Appellants reiterated this during hearings before the Board,

explaining that Appellants knew they needed certain permits. R.R. at 103, 229. Because

Appellants cannot raise a new issue for the first time on appeal, any challenge to the substance of

the Ordinance violations at subparagraphs a, c, g, and h of the Notice has been waived. See, e.g.,

Palmer v. Susquehanna Twp. Zoning Hearing Bd., 331 A.3d 129, 136 (Pa. Cmwlth. 2025).

11

Appellants have abandoned their request for variance relief as their brief to this Court

does not contain any argument on this issue, and it is not listed in their questions presented. See

1825 Rt. 309 Allentown, LLC v. Zoning Hearing Bd. of S. Whitehall Twp., 309 A.3d 187, 190 n.1

(Pa. Cmwlth. 2024) (finding issue waived for failure to include it in the objector’s brief). Thus,

we will not consider the variance request on appeal.

12

III. Discussion

A. Substantial Evidence

“[T]he municipality bears the burden of proving a zoning ordinance

violation” in enforcement proceedings. St. Elmo Dev., LLC v. Zoning Hearing Bd.

of City of Allentown, 320 A.3d 783, 788 (Pa. Cmwlth. 2024). In reaching a decision,

the zoning hearing board’s findings must be supported by substantial evidence,

which is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion. Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 462

A.2d 637 (Pa. 1983). Here, Appellants argue that the Township failed to present

substantial evidence with respect to the violations cited in subsections b, d, e, and f

of the Notice.

1. Notice Subsections b and d

The violation at subsection b of the Notice pertains to the agricultural

accessory use of “Roadside Stands for Sale of Agricultural Products Grown on Site.”

Ordinance § 803.H-15.1.a. Appellants assert that their sale of goods on the Property

constitutes a roadside stand within the meaning of the Ordinance because they are

mostly selling goods produced on the Property, the stand is within the square footage

allowance (under 400 sq. ft.), and there is no acreage restriction in this specific

provision. Moreover, because Appellants’ use falls under the Ordinance provision

for a roadside stand, the violation in subsection d of the Notice pertaining to the more

intense use of “Agricultural Sales of Farm Products” is not applicable.

Appellants further maintain that the Township failed to meet its burden

with respect to the allegation that there is not sufficient off-street parking or a safe

means of egress and ingress for the roadside stand. They point to the testimony of

Burmester, the Township’s own Zoning Officer, which they characterize as

13

admitting that the access and parking is sufficient for their roadside stand use. See

Appellants’ Br. at 14; R.R. at 101-02. The Township relied solely upon the

anecdotal testimony of two neighbors to prove the parking and egress and ingress

issues, rather than presenting expert evidence by employing an engineering firm or

commissioning a traffic study. Appellants appear to claim that this anecdotal

evidence is insufficient to meet the Township’s burden, but fail to provide any

supporting legal citation. We disagree.

Based on the credible testimony and evidence of record, Appellants’

use of the Property goes well beyond the typical roadside stand from which a

property owner sells eggs, produce, or flowers grown on-site. Instead, Appellants

indisputably sell a wide variety of crops not grown on the Property, including fruit

and produce, as well as commercially bottled drinks and snacks. Appellants’ own

expert testified that there were no crops grown on the Property. Appellants also

admittedly sell live animals, which can be slaughtered upon request, and live animals

for companionship such as rabbits and guinea pigs, none of which are contemplated

in the Ordinance provision for a roadside stand. In short, “[t]his is a full[-]scale

commercial use,” R.R. at 421, more akin to the Agricultural Sales of Farm Products

use, which requires a minimum lot area of 10 acres, rather than a roadside stand.

As for the parking and ingress and egress issues, the Township

presented not just witness testimony but photographs and videos that were entered

into evidence showing: parking along Eagle Road where there is no shoulder; traffic

congestion spilling onto Eagle Road due to the narrowness of Appellants’ driveway;

and reduced visibility and attendant safety concerns related to the sharp turn and hill

on Eagle Road near Appellants’ driveway. The Board specifically found the

testimony of the Township’s witnesses to be “credible, probative and relevant,” F.F.

14

No. 26, and Appellants’ argument essentially challenges this credibility

determination. As we have repeatedly explained,

[t]his Court may not substitute its interpretation of the

evidence for that of the Board, the fact-finder in this case.

The Board is the sole judge of the credibility of witnesses

and the weight to be afforded their testimony. Thus, it is

the Board’s function to weigh the evidence before it. If

the record contains substantial evidence, this Court is

bound by the Board’s findings that result from the

resolution of credibility and conflicting testimony.

Victory Gardens, Inc. v. Warrington Twp. Zoning Hearing Bd., 224 A.3d 1110, 1115

(Pa. Cmwlth. 2020) [quoting MarkWest Liberty Midstream & Res., LLC v. Cecil

Twp. Zoning Hearing Bd., 102 A.3d 549, 555 (Pa. Cmwlth. 2014)].

Appellants also take the testimony of Burmester out of context. When

pressed during cross-examination, Burmester stated that if Appellants were just

using the Property as “a roadside stand where people come in and purchase and

leave,” then there would be sufficient parking, and perhaps we would not have the

same issues with ingress and egress. R.R. at 101. However, the totality of the

evidence establishes that Appellants are making a higher use of the Property than

simply a roadside stand as they are inviting the public to remain on the Property for

an extended period through the provision of picnic tables and recreational

equipment, hosting birthday parties, etc. Therefore, we find that Appellants’

arguments regarding Notice subsections b and d lack merit.

2. Notice subsections e and f

With respect to the violations at subsections e and f of the Notice,

Appellants argue that their use of the Property does not fall within the Ordinance’s

15

strict definition of the phrase “Agricultural Entertainment Use.” 12 The Ordinance

defines this term as: “The use of a farm for seasonal festivals related to products

grown on the farm, craft fairs (including antique shows), municipally-sponsored

events, hayrides and horse shows.” Ordinance § 803.H-15.1.c. At no point has the

Township ever accused Appellants of engaging in any of these specifically

enumerated activities, and the evidence in the record fails to support such a

conclusion. Appellants note that the Board is required to adhere to the actual words

of the Ordinance, to enforce the Ordinance “as written without imposing its own

concept of how [the Ordinance] should have been drafted.” Riverfront Dev. Grp.

LLC v. City of Harrisburg Zoning Hearing Bd., 109 A.3d 358, 365 (Pa. Cmwlth.

2015). Appellants maintain that there is no evidence in the record, let alone

substantial evidence, to support the conclusion that they use the Property for

seasonal festivals, craft fairs, hayrides or horse shows. The Board abused its

discretion and went beyond its authority under the MPC by interpreting the

Ordinance to modify or amend its terms in order to impose its own concept of what

the Ordinance should say. Greth Dev. Grp., Inc. v. Zoning Hearing Bd. of Lower

Heidelberg Twp., 918 A.2d 181, 189 (Pa. Cmwlth. 2007).

Appellants claim that they use the Property simply as a livestock farm,

with a concentration on raising poultry and producing eggs, with the roadside stand

as an accessory use. See, e.g., R.R. at 236-37 (Mrs. Alfaro explained that she

believes “raising livestock as [an] agricultural use” was the principal use of the

Property). However, even if their use of the Property qualified as a “petting zoo,”

12

As stated earlier, Agricultural Entertainment Uses are permitted in the CM Zoning

District on lots of at least 25 acres, which the Property does not meet. Ordinance § 803.H-15.1.c.3.

Agricultural Entertainment Uses are only permitted as accessory uses where the principal use of

the property is a permitted agricultural use. Ordinance § 803.H-15.1.c.2.

16

this term is not listed in the Ordinance’s definition of Agricultural Entertainment

Uses, nor is a petting zoo similar to the uses that are listed. Thus, Appellants assert

that the Board abused its discretion by unlawfully expanding the Ordinance to

include a petting zoo as an Agricultural Entertainment Use.

Again, the record clearly demonstrates that Appellants’ use of the

Property goes way beyond that of simply a livestock farm as they: invite the public

onto the Property for an admission fee; charge additional fees to interact with or feed

the animals; and charge further fees to rent picnic tables, ride small, motorized

vehicles, or host birthday parties. Appellants also installed recreational equipment

on the Property—such as a trampoline, swing set, sliding board, and rock wall—

which Mrs. Alfaro admitted is unrelated to any agricultural purpose. In short,

Appellants are operating a petting zoo as their principal use of the Property.

Further, Appellants assert an exclusionary argument, meaning that

because a petting zoo is not specifically included in the Ordinance’s definition, it is

excluded and cannot be considered an Agricultural Entertainment Use. This goes

against the well-established principle that requiring a zoning ordinance to state every

conceivable use “would negate the deference to which a zoning hearing board is

entitled in the interpretation of its municipality’s zoning ordinances.” Slice of Life,

LLC v. Hamilton Twp. Zoning Hearing Bd., 207 A.3d 886, 902 (Pa. 2019). Here,

after considering all of the evidence presented, the Board concluded that Appellants’

use of the Property was analogous to the uses listed as Agricultural Entertainment

Uses and that it best fit within that classification. The Board’s “interpretation of its

own zoning ordinance is entitled to great weight and deference” given its

17

“knowledge and expertise in interpreting that ordinance.” Weiler v. Stroud Twp.

Zoning Hearing Bd., 300 A.3d 1121, 1127 (Pa. Cmwlth. 2023) (citations omitted).13

B. Preemption and Waiver

Lastly, Appellants argue that the Ordinance provisions for which they

were cited in subsections g and h of the Notice are preempted by state law.14 These

sections of the Ordinance pertain to, respectively, limitations on the number of

grazing and non-grazing animals, and the requirement that intensive agriculture be

conducted on at least 10 acres. We find, however, that the Board correctly

determined that Appellants’ preemption claim has been waived because it cannot be

raised outside the exclusive procedure set forth in the MPC.

Appellants’ claim of preemption is in reality a substantive validity

challenge. They are alleging that Sections 803.A.A-1 and 803.A-2 of the Ordinance

are invalid because they conflict with state law in the area of farming and exceed the

municipality’s statutory zoning power. Section 916.1 of the MPC provides,15 in

pertinent part:

(a) A landowner who, on substantive grounds, desires to

challenge the validity of an ordinance or map or any

provision thereof which prohibits or restricts the use or

13

While not directly on point, it bears noting that in the context of validity challenges, this

Court has repeatedly held: “where an ordinance does not mention a specific intended use, we must

determine whether a reasonable interpretation of the ordinance reveals another zoning

classification in which that particular use may be allowed.” Bloomsburg Indus. Ventures, LLC v.

Town of Bloomsburg, 242 A.3d 969, 979 (Pa. Cmwlth. 2020) [quoting Ficco v. Bd. of Supervisors,

677 A.2d 897, 899 (Pa. Cmwlth. 1996)].

14

Appellants agree that if Ordinance § 803.A.A-1 is valid, they are only permitted to have

a maximum of 169 chickens on their 8.79 acre Property. There is overwhelming evidence in the

record demonstrating that Appellants are in violation of this limit, as there are “chickens

everywhere.” R.R. at 157.

15

Added by the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10916.1(a).

18

development of land in which he has an interest shall

submit the challenge either:

(1) to the zoning hearing board under section

909.1(a); or

(2) to the governing body under section 909.1(b)(4),

together with a request for a curative amendment under

section 609.1.

....

(c) The submissions referred to in subsection[] (a) . . . shall

be governed by the following:

(1) In challenges before the zoning hearing board,

the challenging party shall make a written request to the

board that it hold a hearing on its challenge. The request

shall contain the reasons for the challenge. . . .

53 P.S. § 10916.1(a) & (c)(1).

It is well established that “Section 916.1 of the MPC provides the

exclusive mechanism for challenging the validity of a zoning provision.” Urey v.

Zoning Hearing Bd. of City of Hermitage, 806 A.2d 502, 506 (Pa. Cmwlth. 2002)

(emphasis in original). See also Borough of West Mifflin v. Zoning Hearing Bd. of

Borough of West Mifflin, 452 A.2d 98, 99-100 (Pa. Cmwlth. 1982);16 Hammermill

Paper Co. v. Greene Twp., 395 A.2d 618 (Pa. Cmwlth. 1978). A municipality must

have sufficient notice of a substantive validity challenge because it is entitled to

present its own version of the reasons for the challenged regulation, and may utilize

the municipal solicitor or retain an independent attorney to present its defense.

Section 916.1(c)(3)-(4) of the MPC, 53 P.S. § 10916.1(c)(3)-(4); Borough of West

Mifflin, 452 A.2d at 100. For these reasons, this Court has repeatedly held that

16

The provision of the MPC cited in Borough of West Mifflin, 53 P.S. § 11004, has since

been repealed and can now be found at Section 916.1 of the MPC, 53 P.S. § 10916.1.

19

substantive challenges to zoning ordinances are waived if not raised in writing to the

board prior to the hearing, pursuant to Section 916.1 of the MPC. For example, in

Urey, a case similar to the present matter, we explained that

[i]n failing to proceed under [Section 916.1’s] terms, and

in failing to seek a permit for construction, [the appellant]

has forfeited his opportunity to challenge the ordinance.

Public policy is not well served by allowing one to build

in violation of an ordinance, wait until an enforcement

action is commenced by the municipality, and then assert

the unconstitutionality of the ordinance. In short, a

procedure exists to challenge the constitutionality of an

ordinance on the basis that it works as a total exclusion of

a legitimate use; [the appellant] should have availed

himself of this procedure, but he did not.

806 A.2d at 506. See also Lake Adventure, Inc. v. Zoning Hearing Bd. of Dingman

Twp., 440 A.2d 1284, 1287 (Pa. Cmwlth. 1982) (in appeal of denial of special

exception, this Court found that substantive challenges to the zoning ordinance were

waived when raised for the first time in the appellant’s brief to the zoning hearing

board); Jones v. Hamilton Twp. Zoning Hearing Bd. (Pa. Cmwlth., No. 1526 C.D.

2012, filed Apr. 4, 2013) (property owner could not raise exclusionary challenge to

zoning ordinance via appeal of an enforcement action when not properly raised

below).17 See also Grant v. Zoning Hearing Bd. of Twp. of Penn, 776 A.2d 356, 361

(Pa. Cmwlth. 2001) (explaining that substantive challenge to zoning ordinance must

first be raised before the zoning hearing board).

Here, Appellants’ application to the Board and written statement in

support thereof make no mention of preemption and do not request a substantive

validity hearing. See R.R. at 9-14. The only two boxes checked on the application

17

This unreported opinion of the Court is cited only for its persuasive value given its

similarities to the instant matter. Pa.R.A.P. 126(b)(1); 210 Pa. Code § 69.414(a).

20

are those for an appeal from an enforcement notice and for variances; the box for a

challenge to the validity of the Ordinance is left unchecked. R.R. at 9. Appellants

also repeatedly responded “N/A” on sections of the application inquiring about a

challenge to the validity of the Ordinance. R.R. at 11. Further, Appellants did not

raise the preemption issue during the first night of testimony before the Board, or

even prior to the Township resting its case. Preemption was first broached during

the testimony of Appellants’ nutrient management expert.

Appellants’ failure to follow this procedure is compounded by the fact

that the Ordinance is a joint zoning ordinance impacting multiple townships, and

neither Newtown Township nor Wrightstown Township was consulted or given

notice of Appellants’ preemption claim. The MPC also entitles residents and other

interested parties to public notice that a challenge has been made seeking to

invalidate portions of the ordinance. Section 916.1(e) of the MPC, 53 P.S. §

10916.1(e) (“Public notice of the hearing shall include notice that the validity of the

ordinance or map is in question and shall give the place where and the times when a

copy of the request, including any plans, explanatory material or proposed

amendments may be examined by the public.”). Allowing Appellants to bypass the

required process would deprive other residents, interested parties, and municipalities

of their rights under the MPC. Because Appellants failed to properly raise their

preemption claim pursuant to the procedure outlined in the MPC, it has been waived

and we need not address it further.

IV. Conclusion

In sum, there is substantial evidence in the record to support the Board’s

determination that Appellants violated the Ordinance. Moreover, Appellants waived

21

their preemption claim because it was not properly brought as a substantive validity

challenge pursuant to the MPC. Accordingly, we affirm.

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita

Judge Covey did not participate in the decision for this case.

22

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Waldo Alfaro and Rosie Alfaro, :

Appellants :

:

v. : No. 502 C.D. 2023

:

Upper Makefield Township Zoning :

Hearing Board :

ORDER

AND NOW, this 30th day of June, 2025, the Order of the Court of

Common Pleas of Bucks County is AFFIRMED.

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita