The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The Township of Unity :
:
v. : No. 1479 C.D. 2015
: Submitted: April 12, 2016
Jean Ann Keller, :
Appellant :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: June 16, 2016
This is an appeal from the order of the Court of Common Pleas of
Westmoreland County (Trial Court) by the Honorable David A. Regoli, finding
Jean Ann Keller (Keller) in violation of the Unity Township (Township) Zoning
Ordinance (Ordinance), directing her to remove a chain link fence and various
kennel structures from her property within 120 days, and directing her to pay a
penalty in the amount of $300. For the reasons that follow, we affirm the order of
the Trial Court.
Keller resides in a single family home on a single acre of property
located in the A-Agricultural zoning district in the Township. By way of
background, in 1996 the Township Board of Supervisors granted Keller
conditional use approval for a ‘breeding’ kennel business, with the express
provision that no more than twelve (12) dogs were to be kept on the property and
no other dogs were to be boarded on the site. (October 26, 2010 Opinion of the
Township Zoning Hearing Board (2010 Board Opinion), Findings of Fact (F.F.) ¶
4, Supplemental Reproduced Record (S.R.R.) at 90; February 28, 2014 Township
Complaint (2014 Complaint), ¶ 8(b).) However, it is clear from the record that by
at least 2002, Keller was operating in direct violation of those terms, converting
her business from a breeding kennel to an unauthorized rescue kennel with double
the number of permitted dogs; astonishingly, by 2010, she was keeping
approximately 75 dogs on her one-acre property. (2010 Board Opinion, F.F. ¶¶ 7-
8, S.R.R. at 90.) To house the animals, Keller constructed a series of chain-link
pens and/or runs covered by tarpaulins, comprised of eight 6’x12’ runs, one
10’x12’ run, seven 5’x10’ runs, nine 10’x10’ runs, and two 10’x20’ runs. (2010
Board Opinion, F.F. ¶¶ 11-12, S.R.R. at 91.) In 2010, Keller received a Notice of
Violation providing 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” and further providing that Keller was in violation of
Ordinance Section 118-701(W), which requires that kennel buildings and runs
shall be at least 100 from any property line.1 (Notice of Violation.) Keller’s
kennel runs are approximately 35 feet from one side of the property and 20 feet
1
Section 118-701(W) of the Ordinance 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.
(Certified Record, Plaintiff’s Exhibit 1 at 15.)
2
from the other side of the property. Keller made application to the Unity Township
Zoning Hearing Board (Board) for a ‘special exception’ to operate a kennel
characterized as a ‘rescue kennel’ on her property and a dimensional variance to
keep the kennel structures at issue in their current locations.2 Following a hearing,
both requests were denied by the Board.3 Keller appealed,4 and those proceedings
culminated in a June 2012 memorandum opinion of this Court that affirmed the
Trial Judge’s August 2011 order denying her appeal from the Board’s 2010
decision; on December 4, 2012, the Pennsylvania Supreme Court denied Keller’s
petition for allowance of appeal. 5
2
To comply with the mandates of the Ordinance, Keller was seeking an approximate 80 foot
variance on one side of the property and a 65 foot variance on the other side of the property.
(October 26, 2010 Opinion of the Township Zoning Hearing Board (2010 Board Opinion),
Findings of Fact (F.F.) ¶ 34.)
3
In its Opinion, the Board made extensive findings of fact and conclusions of law, including its
finding that the testimony of the neighboring property owners regarding the unbearable barking
noise and foul odors emanating from Keller’s facility was both credible and compelling, and its
conclusion that the type of variance requested by Keller was unacceptable given the area in
question and the proximity of the kennels and runs to neighboring property owners. (Board
Opinion, F.F. ¶¶ 28-31, Conclusions of Law ¶¶ 3,6, S.R.R. at 94-95, 97-98.)
4
In its Opinion, the Trial Court found that Keller had intentionally changed the nature of her use
and failed to abide by the conditions attached to the use, and that the level of noise generated by
barking dogs and the foul odors emanating from the animals created an offensive environment
for the residents in the neighborhood, inhibiting nearby property owners from using their yards
for outdoor activities. (August 22, 2011 Trial Court Opinion.)
5
Jean A. Keller v. Zoning Hearing Board of the Township of Unity and the Township of Unity
(Pa. Cmwlth., No. 306 C.D. 2012, Filed June 22, 2012), petition for allowance of appeal denied,
46 A.3d 833 (Pa. 2012).
3
In its 2010 decision, the Board granted Keller a period of 120 days to
cease operation as a kennel facility; in response, Keller decreased the number of
dogs on her property to a level below the number required for state licensing (26),
but continued to house between 20 and 24 dogs, keeping them outside in the same
kennels and runs previously used for her prohibited rescue kennel operations.
The present action originated with the Township’s 2014 Complaint, in
which it sought an order directing Keller to remove all outdoor kennels, runs or
other structures located within 100 feet of an adjoining property line, or in the
alternative, to permit the Township to remove such structures, and to authorize a
civil action against Keller to recover costs incurred in the removal. (2014
Complaint.) At a March 19, 2015 hearing before the Trial Court, Keller testified
that there were 23 dogs on her property. (March 19, 2015 Hearing Transcript
(H.T.), S.R.R. at 37.) The former Township Zoning and Enforcement Officer
(Twp. Officer) also testified, stating that in Spring 2013, following the Supreme
Court’s denial of Keller’s petition for allowance of appeal, the Township contacted
Keller to determine her intentions. (H.T., S.R.R. at 44.) The Twp. Officer stated
that at that meeting, attended by Keller, Keller’s boyfriend, and the Township’s
attorney, Keller was told that in order to avoid further enforcement actions, her
kennel structures must be removed from the property. (Id.) The Twp. Officer
testified that Keller was also told that the remaining dogs could stay with Keller
until they died, but that they would have to be kept inside Keller’s residence. (Id.)
The Board found in its 2010 opinion that out of the nearly seventy
dogs who were being boarded at Keller’s property, twenty-five of them were too
old or too infirmed to be adopted; at the March 2015 hearing, Keller testified that
she understood that those ‘unadoptable’ dogs would be permitted to remain with
4
her until their deaths and that she had promised that no additional dogs would be
brought in. (2010 Board Opinion, F.F. ¶ 25, S.R.R. at 94; H.T., S.R.R. at 31.)
Keller did not testify as to whether or not the Twp. Officer had in fact informed her
that the kennel structures must be removed and the dogs must be housed inside her
residence if they were to remain on the property; as part of his final summation,
Keller’s counsel stated:
We have some conflicting testimony as to what happened
when [Keller] met with [the Twp. Officer and Township
attorney]. Ms. Keller says that she was told just basically
don’t bring any more dogs in, you got under your
number, you know we’re going to leave you alone. That
was her intention. That was her hope going forward.
(H.T., S.R.R. at 55-56.)
The Trial Court found, based on the prior use of the property as a
rescue kennel and Keller’s testimony regarding the number of dogs that remain
there overnight within the chain-link structures, that the structures located on
Keller’s property fell within the Township Ordinance definition of “Kennel.”
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 Section 118-203
(“Definitions”).)
The Trial Court agreed with the Township that the structures were
being used by Keller for the purpose of raising animals as a hobby. Noting that
there is no dispute that the kennels are situated within 100 feet of Keller’s property
line in violation of Section 118-701(W) of the Ordinance, the Trial Court found
that Keller’s use of the property is in violation of the Ordinance and directed the
removal of “each of the chain link structures, i.e., kennels, located on her property”
5
within 120 days from the date of the Order. (Trial Court Order at 2.) Keller
appealed to the Pennsylvania Superior Court, and on August 17, 2015, the case
was transferred to this Court.
Before this Court, Keller disputes the Trial Court’s determination
that she was utilizing the structures in question to house dogs as a ‘hobby,’
contending that she is raising all of the dogs on her property as her ‘pets’ or ‘kids.’
She argues that a plain reading of the Ordinance definition of ‘kennel’ reveals that
a building, structure, cage or pen only becomes a “kennel” for purposes of the
Ordinance when it is used for one of the delineated purposes, and accordingly, a
building, structure, cage or pen escapes the definition of “kennel” – and thus
escapes the 100 foot setback rule – if it is not used for one of the delineated
purposes. Keller argues specifically that (i) the current ‘purpose’ of the structures
is to house pets and any prior use is irrelevant; (ii) there is no support in the
Ordinance to establish that the dogs are being raised as a hobby – the Ordinance
does not define the word ‘hobby’ and its common usage is ‘a pursuit outside one’s
regular occupation engaged in for relaxation’ – so, e.g., only an activity such as
raising dogs to hunt or raising dogs to participate in shows would qualify as a
‘hobby;’ and (iii) a full reading of the Ordinance reveals that pets can be housed in
structures that are not considered to be kennels.
First, we find no error in the Trial Court’s determination that the
structures are being used by Keller to raise animals as a hobby and therefore fall
within the Township’s definition of “kennel.” Keller’s avocation, her abiding
interest, her ‘passion’ to provide a home for rescue animals has been clearly
demonstrated throughout these protracted proceedings; her efforts to continue to
raise the remaining dogs can properly be viewed as her hobby or her private
6
business. However, as a matter of interpretation, we find that it is of no moment
whether Keller is presently housing these animals outside her residence as her
‘pets’ or as part of a commercial business. Article 200, Section 118-2-1 of the
Ordinance, which governs definitions and word usage, specifically directs that the
words “used” or “occupied” shall include the words “intended, designed.”
(Township Ordinance at 5.) As such, notwithstanding Keller’s argument that the
current purpose of the structure is simply to house her personal pets, it is
abundantly clear that the offending structures were intended and designed to be a
“kennel,” as evidenced by Keller’s 1996 request for a conditional use of her
property as a kennel business to breed dogs and her 2010 application for a special
exception and variances to permit her to operate as a rescue kennel for an
unspecified and unlimited number of dogs.
Moreover, we cannot agree that Ordinance Section 118-402(K)
provides any support whatsoever for Keller’s argument that the term ‘hobby’
within the definition of “kennel” was not meant to encompass the housing of
domestic pets. Section 118-402(K) addresses accessory use standards for “Kennels
and Runs,” and prohibits “kennels, runs, pens or other structures” intended for use
as shelter for more than two common domestic pets in a residential district and
permits structures intended for use as shelters for other than common domestic pets
in residential districts used principally for agricultural purposes. First, because
Keller’s property is neither located in a residential district nor is it subject to an
agricultural use, Section 118-402(K) does not apply here. Second, it refers to
kennels used as shelter for domestic pets and therefore clearly contemplates that
kennels encompass the housing of domestic pets. Third, Section 118-402(K) does
7
nothing to affect the requirement that a “kennel, run, pen or other structure” must
be kept at least 100 feet from an adjoining property line.
Here, the Trial Court properly found that the structures located on
Keller’s property fall within the definition of “kennel” as defined by the
Ordinance, and are situated within one hundred feet of her property line in
violation of Section 118-701 thereof. Accordingly, we affirm the Order of the
Trial Court, which directed Keller to remove all of the kennel structures within 120
days and ordered her to pay a penalty in the amount of $300.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The Township of Unity :
:
v. : No. 1479 C.D. 2015
:
Jean Ann Keller, :
Appellant :
ORDER
AND NOW, this 16th day of June, 2016, the Order of the Court of
Common Pleas of Westmoreland County in the above-captioned matter is
AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge