Kohl v. New Sewickley Township Zoning Hearing Board
108 A.3d 961
| Pa. Commw. Ct. | 2015Background
- Richard and Noreen Kohl operated "Gentle Ben’s," a nonprofit large-dog rescue on a 2-acre R‑1 residential parcel; dogs live inside the house and use a fenced 1‑acre exercise area. Applicants are licensed under Pennsylvania’s Dog Law and accept donations/adoption fees but do not make a profit.
- Neighbors (Intervenors) complained about barking, escapes, threats to other animals, and alleged property-value impacts; the Township zoning officer informed Applicants a "kennel" is not permitted in R‑1 and required a variance.
- The Zoning Hearing Board (ZHB) concluded Gentle Ben’s was a "kennel" under the municipal ordinance (relying largely on the Dog Law licensing terminology) and denied relief.
- The Court of Common Pleas reversed, finding Applicants did not operate for "economic gain" and thus were not a "kennel." The trial court relied on canons favoring property owners where ambiguity exists.
- On appeal, the Commonwealth Court affirmed: it held the municipal definition of "kennel" is ambiguous (especially the term "keeping"), that the ordinance does not incorporate the Dog Law’s numeric definitions, and that ambiguity must be construed in favor of the landowner.
Issues
| Issue | Plaintiff's Argument (Intervenors) | Defendant's Argument (Kohl) | Held |
|---|---|---|---|
| Whether Gentle Ben’s is a "kennel" under the Township ordinance | The operation fits the ordinance definition; licensing under the Dog Law shows it’s a kennel and the number of dogs exceeds incidental residential use | Gentle Ben’s is nonprofit, donations/adoption fees do not produce economic gain, so it is not a "kennel" as intended by the ordinance | Ambiguity in the ordinance; construed for the landowner — trial court correct, operation not a prohibited "kennel" |
| Whether the ordinance’s phrase "keeping" includes mere possession (no profit) and thus covers this rescue | "Keeping" is broad and should encompass maintaining dogs even without profit; the ordinance’s commercial definition can apply | "Keeping" should be read in context with enumerated profit‑oriented activities (breeding, boarding, grooming, show) and limited by the ordinance’s separate "economic gain" language | The court reads "keeping" in context with the profit‑oriented list; the ordinance is ambiguous and cannot be stretched to cover all possession without clearer standards |
| Whether the ZHB could rely on the Dog Law definition (26‑dog threshold) | Dog Law definition aligns and should be read in pari materia with the ordinance | Dog Law is not incorporated in the ordinance; municipal ordinance lacks numeric threshold and cannot be rewritten by reference to state law | Dog Law does not control; definitions conflict and cannot be read together — municipal ordinance governs and is ambiguous |
| Whether the ZHB’s and zoning officer’s interpretations control | ZHB and zoning officer have expertise and their interpretation should be given deference | ZHB/officer relied on an interpretation that renders the ordinance vague and grants unbridled discretion | Officer/ZHB interpretations have weight but do not resolve the ambiguity; ambiguous terms are construed for the landowner |
Key Cases Cited
- Ruley v. West Nantmeal Township Zoning Hearing Board, 948 A.2d 265 (Pa.Cmwlth.2008) (donations that do not constitute compensation do not convert a rescue into a compensated boarding/kennel use)
- McIntyre v. Board of Supervisors of Shohola Township, 614 A.2d 335 (Pa.Cmwlth.1992) (deference given to zoning officer’s interpretation but may be overturned if clearly erroneous)
- Lench v. Zoning Board of Adjustment of City of Pittsburgh, 13 A.3d 576 (Pa.Cmwlth.2011) (ambiguous zoning language is construed in favor of landowner)
- Woll v. Monaghan Township, 948 A.2d 938 (Pa.Cmwlth.2008) (municipality may regulate number of animals consistent with police power but must do so expressly)
- Northampton Area School District v. Zoning Hearing Board of Township of Lehigh, 64 A.3d 1152 (Pa.Cmwlth.2013) (statutory/ordinance interpretation is a question of law reviewed de novo)