Posted by: Patricia Salkin | January 7, 2020

PA Appeals Court Upholds Order Requiring Residential Property Owner to Remove Livestock

This post was authored by Matthew Loeser, Esq.           

Bobbi Jo Maffeo owned a two-acre property located at 769 Railroad Street in the Borough of Windber, Somerset County, Pennsylvania. The Windber Borough Zoning Hearing Board required Maffeo to remove livestock from her property – which was located in a residential zoning district. Maffeo appealed, and the Court of Common Pleas of Somerset County affirmed the Zoning Board’s decision.

On appeal, Maffeo first argued that the Board improperly excluded a letter from Leann Stewart, an officer of the Somerset County Humane Society, setting forth that “basically the animals are well kept”, from the evidentiary record. The court noted that Section 1005-A of the Pennsylvania Municipalities Planning Code (“MPC”) authorizes a court to accept, upon motion, additional evidence in a land use appeal; however, a court is only required to hear additional evidence pursuant to Section 1005-A if “the party seeking the hearing demonstrates that the record is incomplete because the party was denied the opportunity to be heard fully, or because relevant testimony was offered and excluded.” Here, Maffeo presented the letter and had it marked as an exhibit at the hearing before the Board. Additionally, the common pleas discussed the letter in its opinion and treated it as part of the record by weighing it against other evidence before the Board before concluding that the Board did not abuse its discretion. Accordingly, the court upheld the common pleas’ order with regard to its denial of the Motion with respect to the Stewart letter.

The court next addressed Maffeo’s request to present new survey evidence. The court found that Maffeo failed to demonstrate: that she did not have an opportunity to submit her own survey, that a survey she did offer was excluded, or any compelling reason why common pleas should now allow her to submit a survey into evidence. Furthermore, with regard to the evidence of uneven enforcement of the Ordinance, Borough resident Mark Horner testified at the hearing that Borough officers assured him that no ordinance prohibited the chickens, ducks, and rooster he kept on his property. Appellant did not suggest in her Motion, however, that she was prevented at the hearing from eliciting other testimony about uneven enforcement.

Finally, the record indicated that the Board considered the 2017 survey together with Appellant’s admission of the survey’s accuracy. Here, the survey evidence before the Board supported its determinations that Maffeo was operating in a primarily residential district, and even if the animals were restricted to the portion of the property zoned for conservation, they would still be kept “within 200 feet of a residential lot.” Accordingly, the court affirmed the common pleas’ order, and held the Board had substantial evidence of the property’s zoning.

City Club of New York v. Extell Development Company, 2019 WL 5791430 (NYAD 1 Dept. 11/7/2019)

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