Posted by: Patricia Salkin | May 21, 2008

Animal Rescue Operation Does Not Constitute “Kennel” Under Zoning Ordinance

West Nantmeal Township in Pennsylvania recently discovered its zoning code did not cover a situation where, in a residential neighborhood, a homeowner was keeping 70 cats and 2 dogs as part of a rescue operation she founded, until a home could be found for the animals.  A veterinary technician, Ruley founded “Help the Animals” as a non-profit that she runs out of her home.  She does not charge for animal adoptions and although from time to time she receives unsolicited donations, such funds do not cover the costs of providing shelter and food for the animals.  She testified that animals not adopted stay on her premises permanently.  At the present time, with 70 cats on her property, she testified that she has 35 litter boxes and uses 40 pounds of cat food daily.

 

Following complaints about offensive odors emanating from Ruley’s property and about her handling of waste, the Township zoning officer inspected her property and cited her for, among other things, violating the zoning ordinance because she was operating a kennel without first having obtained a special exception approval (required under the zoning ordinance for a kennel in that zoning district).  A “kennel” is defined under the zoning ordinance as “[a]n establishment under the Pennsylvania Dog Law [3 P.S. §459-101-459-1205] operated for the purpose of trading, breeding, boarding, training, or grooming customary household pets for compensation.”

 

Following a hearing, the Township Zoning Hearing Board found that Ruley’s receipt of donations constituted “compensation” and that therefore, she was using her premises as a kennel under the zoning code definition. Following a request for penalties for violating the zoning code, the district justice entered a judgment against Ruley and in favor of Township for $20,303.25 ($8,000 in fines, $73.45 in costs, and $12,229.80 in attorney fees). The Trial Court denied Ruley’s appeals, deferring to the zoning board’s interpretation that the donations constituted compensation.

 

The Commonwealth Court disagreed.  Returning again to the definition of kennel in the zoning code, the appeals Court agreed with Ruley that the trial court and the board misinterpreted the definition. The first issue, they said, was that under the definition (“…operated for the purpose ofboardingfor compensation” (emphasis added)), it is the purpose of the establishment that drives the definition, not whether it ever receives a donation. Ruley’s purpose was an animal rescue operation, not boarding for compensation. Secondly, said the Court, the zoning code failed to define the term “boarding.”  The Code does however, refer to the Pennsylvania Dog Law, which defines “boarding kennel” as “Any kennel available to the general public where dogs are housed or trained for compensation by the day, week or a specified or unspecified time.” (emphasis added) The Court found that “no one compensated Ruley for housing their animals, and the donations from third parties do not constitute compensation for “housing” because the donations were not assigned a particular use.”  Since Ruley was not operating a kennel, she did not need a special exception permit. Further, since she did not violate the zoning code, she cannot be sanctioned thereunder.  The Court reversed the order of the trial court as well as the court’s imposition of fees.

 

Ruley v. West Nantmeal Tp. Zoning Hearing Board, 2008 WL 2020364 (Pa. Cmwlth. 5/13/2008).

 

The opinion can be accessed at: http://www.courts.state.pa.us/OpPosting/CWealth/out/807CD07_5-13-08.pdf


Responses

  1. I am curious if there are similar decisions and cases in NY. I am trying to help a dog (and occasional cat) rescue that began operation at the current location in October 2003. It is a licensed and registered 501 c 3 charity, including with the OAG. They are not “selling” dogs, but do collect adoption fees to try to cover costs.

    From that date until November 2008, the town knew of the operation and raised no questions. In fact, every dog housed there was licensed by the town. There are no complaints from the neighbors.

    The zoning code passed in 1976 only had two zones: flood plain and not flood plain. There were some building standards for flood plains. For the rest of the town, except for siting mobile homes, any legal use was OK.

    The town passed more comprehensive zoning in September 2008. That code includes both commercial and “non-commercial” in the definition of kennel. However the only standards set for special use permits relate to commercial kennels.

    These facts are quite similar to the PA case and I was wondering if there was similar case law in NY.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Categories

%d bloggers like this: