Posted by: Patricia Salkin | February 8, 2015

PA Commwlth Court Construes Ambiguous Term of Ordinance (“Kennel”) in Favor of Landowners

Barbara and William Layton appealed n order of the Court of Common Pleas of Beaver County, which reversed an order of the New Sewickley Township Zoning Hearing Board (ZHB). The ZHB had concluded that the dog-rescue operation run by Richard and Noreen Kohl (Applicants) was a non-permissible “kennel” under the Township’s zoning ordinance and denied the Applicants’ request for a variance. The trial court determined that because Applicants did not receive “economic gain” or a profit for their efforts, their dog-rescue operation was not a “kennel” and, therefore, was not a prohibited land use under the Ordinance. The Layton’s presented two issues in their statement of the questions involved: 1) whether the Ordinance’s restriction on “kennels” in suburban residential zones precludes use of a two-acre residential site as an incorporated, licensed animal rescue operation, keeping between twenty-two and forty large breed dogs; and 2) whether the trial court abused its discretion to the extent it found as a fact that a one-acre fenced-in area located on the two-acre residential site was not an “area set aside” within the Ordinance’s meaning of the definition of “kennel”.

According to the definition of a kennel provided in Section 3.1 of the Ordinance states “Any structure, pen or area set aside for the breeding, boarding, show, grooming or keeping of dogs, cats or similar domestic animals. For purposes of this Ordinance, the keeping of five (5) or more such animals for economic gain shall be deemed a commercial kennel.” Where the words of the ordinance are ambiguous, courts construe the ordinance in favor of the landowner. Here, there was no language in the definition of “kennel” that clarified 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. Accordingly, because the language comprising a “kennel” was facially ambiguous it was construed in favor of Applicants as the landowners.

Kohl v New Sewickley Township Zoning Hearing Board, 2015 WL 249186 (PA Commwlth 1/21/2015)

The opinion can be accessed at:

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