OPINION BY Judge McCULLOUGH.
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)
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).
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.
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
An adjacent neighbor testified that she is troubled about the large dogs, particularly their loud barking and the amount of waste they produce. (ZHB's Finding of Fact No. 19.)
On April 8, 2013, the ZHB issued a decision, stating that it "feels strongly that [Applicants] are doing a commendable service to the animal community in providing the rescue service, and are providing these services for the good of the animals." (ZHB's Finding of Fact No. 36.) However, the ZHB noted that a dog kennel is not permitted as a conditional use within an R-1 district and determined that it did not possess the authority to grant a variance. The ZHB explained:
(ZHB's decision at 8.) As evidenced from its analysis, the ZHB relied predominately, if not solely, on the Dog Law to determine that Applicants operated a "kennel" for purposes of the Ordinance.
On appeal, the trial court, without receiving additional evidence, reversed. As a prefatory matter, the trial court stated that the sole issue presented to it by Applicants was whether Applicants' operation of Gentle Ben's constitutes a kennel and/or a commercial kennel, noting that a kennel is not a use permitted as of right or as a conditional use in an R-1 district. To aid in its construction of "kennel," the trial court looked to section 603.1 of the Municipalities Planning Code (MPC), 53 P.S. § 10603.1, which advises that: "[i]n interpreting the language of zoning ordinances to determine the extent of the restriction upon the use of the property, the language shall be interpreted, where doubt exists as to the intended meaning of the language written and enacted by the governing body, in favor of the property owner and against any implied extension of the restriction."
In construing the definition of "kennel" in the Ordinance, the trial court initially discounted the ZHB's reliance on the fact that Gentle Ben's is licensed as a kennel pursuant to the provisions of the Dog Law, noting that the Ordinance makes no reference to the Dog Law and that the definition
The trial court next determined that Applicants do not operate Gentle Ben's for "economic gain" or a profit, and, although they collect money in adoption fees, it is not enough to cover the expenses to care for the dogs and Applicants have sustained out-of-pocket losses to provide food and veterinarian services for the animals. (Trial court op. at 6, 20.) The trial court concluded that under Ruley v. West Nantmeal Township Zoning Hearing Board, 948 A.2d 265 (Pa.Cmwlth.2008), an animal rescue shelter cannot be deemed to be one operated for "compensation" when the owners accept donations and adoption fees and the donations and fees do not result in a net profit and are used to defray the expenses of caring for the animals.
The trial court then resorted to dictionary definitions of "breed" (to propagate sexually and usually under controlled conditions), "board" (to provide with regular meals and often also lodging, usually for compensation), "show" (to present (an animal) for judging in a show), "groom" (to clean and maintain the appearance — as the coat of a horse or dog), and "keep" (to lodge or feed for pay; to take care of) to construe the term kennel in the Ordinance and find that "economic gain" is an essential prerequisite. On this basis, the trial court concluded that Gentle Ben's was not a kennel, reasoning as follows:
(Trial court at op. at 21-22.) Accordingly, the trial court reversed the ZHB's order.
On appeal to this Court,
In the argument section of their brief, Intervenors contend that the trial court erred in interpreting kennel and applying it to the facts of this case. Intervenors assert that a kennel is not permitted in an R-1 district and that the number of dogs Applicants own far exceeds that which can reasonably be deemed an accessory or incidental use of a single-family dwelling. Intervenors maintain that by operating a non-profit kennel licensed by the Department of Agriculture, Applicants implicitly admit that they "keep" at least twenty-six dogs per calendar year. Intervenors argue that the concept of a "kennel" under the Dog Law is substantially similar to that in the Ordinance and the two should be read in pari materia.
In addition, Intervenors contend that the trial court erroneously incorporated notions of profit and "economic gain" into the first sentence of the definition of "kennel" and proposes that the verb in the first sentence, "keeping," is broad enough to encompass the situation where owners merely preserve, maintain, or take care of animals on their property. Intervenors also cite the definition of "commercial" in the Ordinance, which defines that term without referencing "economic gain," thus suggesting that Gentle Ben's is alternatively a "commercial kennel." Finally, Intervenors assert that, contrary to the trial court's conclusion, Applicants "set aside" an area for the dogs because the dogs were free to roam the fenced-in, one-acre portion of the land.
As an initial matter, we note that dogs are considered to be personal property under Pennsylvania statutory law, the deprivation of which (through state action)
"The rules of statutory construction apply to ordinances as well as statutes." In re Holtz, 8 A.3d 374, 378 (Pa. Cmwlth.2010). The interpretation of a statute or ordinance presents this Court with a pure question of law, which is generally subject to plenary review. Northampton Area School District v. Zoning Hearing Board of Township of Lehigh, 64 A.3d 1152, 1157 (Pa.Cmwlth.2013); Simko v. County of Allegheny, 869 A.2d 571, 573 n. 3 (Pa.Cmwlth.2005).
The primary objective of statutory interpretation is to determine the intent of the enacting legislation. Section 1921 of the Statutory Construction Act of 1972(Act), 1 Pa.C.S. § 1921. In pursuing that end, we are mindful that a statute's plain language generally provides the best indication of legislative intent and, thus, statutory construction begins with examination of the text itself. Malt Beverages Distributors Association v. Liquor Control Board, 918 A.2d 171, 176 (Pa.Cmwlth.2007) (en banc), aff'd 601 Pa. 449, 974 A.2d 1144 (2009). In reading the plain language of a statute, "[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage." Section 1903(a) of the Act, 1 Pa. C.S. § 1903(a). With respect to zoning matters, "[u]ndefined terms are given their plain meaning, and any doubt is resolved in favor of the landowner and the least restrictive use of the land." Caln Nether Co., L.P. v. Board of Supervisors of Thornbury Township, 840 A.2d 484, 491 (Pa.Cmwlth.2004).
Further, where the words of the ordinance are ambiguous, courts construe the ordinance in favor of the landowner. Lench v. Zoning Board of Adjustment of City of Pittsburgh, 13 A.3d 576, 579 (Pa. Cmwlth.2011). A zoning ordinance is ambiguous if the pertinent provision is susceptible to more than one reasonable interpretation, Adams Outdoor Advertising, L.P. v. Zoning Hearing Board of Smithfield Township, 909 A.2d 469, 483 (Pa. Cmwlth.2006), or when the language is vague, uncertain, or indefinite. Barasch v. Pennsylvania Public Utility Commission, 516 Pa. 142, 532 A.2d 325, 332 (1987). Finally, it is well settled that "a zoning hearing board's interpretation of its own zoning ordinance is entitled to great weight and deference. Such deference is appropriate because a zoning hearing board, as the entity charged with administering a zoning ordinance, possesses knowledge and expertise in interpreting that ordinance." Risker v. Smith Township Zoning Hearing Board, 886 A.2d 727, 731 (Pa.Cmwlth.2005). Similarly, "because [a township's zoning officer] is charged with the administration and execution of the [ordinance], his interpretation of the
A "kennel" is not a permitted use in an R-1 district. While there are many different types of kennels with varying purposes under the Dog Law,
In conducting our analysis, we observe that the setting in which language is used informs our understanding of the particular language employed. While this Court typically consults dictionaries to ascertain the common and approved usage of words, see Moonlite Cafe v. Department of Health, 23 A.3d 1111, 1114 (Pa.Cmwlth. 2011), in this instance a dictionary is not the most useful of tools because the "action words," although defined in a variety of ways, do not account for the primary noun, "dogs," and, therefore, lack definitional precision and fail to account for the unique situation involving dogs. Nonetheless, this Court may draw upon common sense and basic human experience to construe terms, see Commonwealth v. Bavusa, 574 Pa. 620, 832 A.2d 1042, 1052 (2003); Bellefonte Area School District v. Workmen's Compensation Appeal Board (Morgan), 156 Pa.Cmwlth. 304, 627 A.2d 250, 253 (1993), aff'd, 545 Pa. 70, 680 A.2d 823 (1994), and we do so here.
However, the only specific language in the Ordinance that relates to the profit-obtaining endeavors listed in the first sentence is the term "economic gain" in the second sentence. Indeed, the definitional structure of "kennel" strongly suggests that the legislative body was concerned, not with the amount of dogs that a landowner simply possesses, but with the manner in and extent to which the landowner uses dogs to achieve "economic gain." See Ordinance, III-11 ("Any structure ... set aside for the breeding, boarding, show, grooming or keeping of dogs.... The keeping of five (5) or more such animals for economic gain shall be deemed a commercial kennel."). Therefore, one reasonable interpretation of "kennel" is that the activities listed in the first sentence, whether they be the breeding, grooming, keeping of 4 dogs or less, etc., must be done for "economic gain."
If this is not the preferred reading of kennel, it is as equally reasonable as any other, and it is the interpretation proffered by Fowler, the zoning hearing officer. Fowler testified that the Ordinance does not restrict the number of dogs that a landowner can own and that a dog operation must be one conducted for profit or "economic gain" in order to be considered a "kennel." Although it is disputable whether the ZHB officially adopted Fowler's interpretation, the ZHB did not denounce it, so the officer's interpretation must be given at least some weight in the calculus. See McIntyre, 614 A.2d at 337.
More importantly, if "keeping" were construed to mean mere possession and ownership, there is no language in the definition of "kennel" that clarifies how many dogs an individual can "keep" before being designated a "kennel" under the Ordinance. Although "dogs" is written in the plural, implying two or more, the absence of a conclusive number leaves an individual guessing, without a sufficient guidepost, at what point his ownership of more than 1 dog qualifies as a kennel. The net result is that the zoning officer and the ZHB are left with unbridled discretion to decide the particular number of dogs, be it 2, 10, or some other figure, that an individual can possesses before that ownership is deemed a kennel. "It is a fundamental rule that an ordinance must establish a standard to operate uniformly and govern its administration and enforcement in all cases, and that an ordinance is invalid where it leaves its interpretation, administration or enforcement to the unbridled or ungoverned discretion, caprice or arbitrary action of the municipal legislative body or of administrative bodies or officials...." Orwell Township Board of Supervisors v. Jewett, 132 Pa.Cmwlth. 30, 571 A.2d 1100, 1103 (1990). Therefore, we conclude that the definition of kennel is ambiguous, not only because it is susceptible to two contrasting meanings, but also because the term "keeping" is inherently vague and indefinite.
The basis for the ZHB's interpretation and Intervenors' primary argument resorts to the definition of a kennel in the Dog Law. In pertinent part, "Kennel" is defined in section 102 of the Dog Law as "[a]ny establishment in or through which at least 26 dogs are kept or transferred in a calendar year...." 3 P.S. § 459-102. However, the Dog Law is not incorporated into the Ordinance; the Ordinance does not refer to the Dog Law, cf. Ruley v. West Nantmeal Township Zoning Hearing Board, 948 A.2d at 270 (noting that local ordinance explicitly referred to the Dog Law and looking to the definition of "boarding kennel" in the Dog Law to define "boarding"); and unlike the Dog Law's definition of kennel, the Ordinance does not quantify the simple possession of a particular number of dogs within its parameters.
Moreover, the Dog Law does not preempt municipal ordinances and the Dog Law is not "so pervasive and comprehensive as to preclude [a municipality] from exercising its police powers to limit the number of dogs which may be housed in a residential setting." Muehlieb v. City of Philadelphia, 133 Pa.Cmwlth. 133, 574 A.2d 1208, 1210-12 (1990). Consequently, the Township is free to restrict the number of dogs permitted in an R-1 district so long as that restriction bears a rational relationship to a health or safety goal of the community. Woll, 948 A.2d at 938-39 & n. 6. However, the Township has not done so here, and it cannot now try to
Similarly, the ZHB's and Intervenors' reference to the definition of "commercial" in the Ordinance is unavailing. While the term commercial is defined broadly ("Engaging in a business, enterprise, activity or other undertaking related to or connected with trade or commerce in general"), Ordinance, III-11, it cannot be incorporated into or otherwise expand the phrase "commercial kennel" in the definition of kennel because a "commercial kennel" is explicitly limited to "economic gain." Ordinance, III-11. ("[T]he keeping of five (5) or more such animals
Finally, the case law cited by Intervenors is inapposite. In Hess v. Warwick Township Zoning Hearing Board, 977 A.2d 1216 (Pa.Cmwlth.2009), this Court interpreted the phrase "accessory use" in an ordinance and concluded that the residential ownership of twenty-one dogs could not be considered customarily incidental to the use of a residence. In Hoppe v. Zoning Hearing Board of the Borough of Portland, 910 A.2d 756 (Pa.Cmwlth.2006), we concluded that a landowner did not qualify for a special exception as a "home occupation" where she sought to breed her dogs. In Sixth Angel Shepherd Rescue v. Borough of Marcus Hook Zoning Hearing Board, (Pa.Cmwlth., No. 589 C.D. 2011,
For the above-stated reasons, we conclude that the language comprising a "kennel" is facially ambiguous and must be construed in favor of Applicants as the landowners. Therefore, we conclude that the trial court reached the correct result
Accordingly, we affirm.
AND NOW, this 21st day of January, 2015, the December 27, 2013 order of the Court of Common Pleas of Beaver County is affirmed.
This same section also defines "commercial (business)" as: "Engaging in a business, enterprise, activity or other undertaking related to or connected with trade or commerce in general." Ordinance, III-5.
"Kennel" is defined in section 102 of the Dog Law as: "Any establishment in or through which at least 26 dogs are kept or transferred in a calendar year, or a boarding kennel as defined in this act." 3 P.S. § 459-102.
The York Group, Inc. v. Yorktowne Caskets, Inc., 924 A.2d 1234, 1246-47 (Pa.Super.2007). See Ragnar Benson, Inc. v. Hempfield Township Municipal Authority, 916 A.2d 1183, 1192 (Pa.Super.2007) (holding that an appellate court cannot sua sponte address an issue that it perceives in the record where that issue is not presented at the appeal level).
948 A.2d at 270.
"Kennel" is defined in section 102 of the Dog Law as: "Any establishment in or through which at least 26 dogs are kept or transferred in a calendar year, or a boarding kennel as defined in this act." 3 P.S. § 459-102.
A "Nonprofit Kennel" is defined in the same section as: "A kennel registered under the laws of this Commonwealth as a nonprofit entity or a nonprofit animal control kennel under sections 901 and 1002. The term shall include kennels operated by approved medical and veterinary schools and nonprofit institutions conducting medical and scientific research, which shall be required to register, but shall not be required to pay any of the license fees set by this act, and which may use their own identification tags for dogs within their kennels without being required to attach tags hereinafter prescribed while dogs are within such kennels, if approved by the secretary." Id.
Further, under the Dog Law, a "boarding kennel" is defined in pertinent part as: "Any establishment available to the general public where a dog or dogs are housed for compensation by the day, week or a specified or unspecified time." Id. A "commercial kennel" is "[a] kennel that breeds or whelps dogs and: (1) sells or transfers any dog to a dealer or pet shop kennel; or (2) sells or transfers more than 60 dogs per calendar year." Id. Finally, a "pet shop-kennel" is "[a]ny kennel or person that acquires and sells dogs for the purpose of resale, whether as owner, agent or consignee, and sells or offers to sell such dogs on a retail basis." Id.
Section 206(a) of the Dog Law imposes licensing requirements on kennels: "Any person who keeps or operates a kennel shall, on or before January 1 of each year, apply to the department for a kennel license." 3 P.S. § 459-206.