Posted by: Patricia Salkin | September 15, 2020

PA Appeals Court Holds That Pet Chickens Kept at Residence Were Not Agricultural Livestock Under Applicable Zoning Ordinance

This post was authored by Georgia Reid, Touro Law Center

The question addressed in Sabatini v. Zoning Hearing Bd. of Fayette Cty. was whether a landowner who kept chickens on his property as pets was subject to zoning regulations about agriculture. The fate of the fowl hinged on the plain-view meaning of  the word “agriculture” in the ordinance. The appellate court held the chickens had a right to roost with their owner, reversing the decision of the lower court. 

Andrew Sabatini, a landowner, was the owner of property “consisting of 1.85 acres” in what the local zoning ordinance designated as “a “Moderate Density Residential District.”  A Fayette County Planning/Zoning Technician sent Sabatini a notice that the chickens he was keeping on his property violated the zoning ordinance for “keeping agricultural animals,” – chickens, specifically – “on property that was zoned as residential.”  The notice further stated that the County required Sabatini to remove all the chickens from the property.

Sabatini petitioned to the Zoning board, testifying that he resided at his property for “approximately four-and-a-half years,” and that he has had “eighteen pet chickens . . . for four of those years.”  Sabatini also testified that he “never advertised for sale chicken eggs, meat, or feathers, and that he never sold, butchered, or ate any of the chickens.  He explained that the chickens had names and are not confined full-time like a “commercial operation.”  Mr. Sabatini’s wife and children testified that the chickens were pets.  In support of Sabatini, a certified poultry technician for the Pennsylvania Department of Agriculture and the head of the Uniontown Poultry Association testified that “he believed that the chickens were owned as pets and were not used for a separate purpose.”  The expert said he had no concern about chickens being” being on the property.  However, a concerned neighbor testified to her worry that chicken feces would contaminate her well water.    

The Zoning Board denied Sabatini’s petition to reverse.  The Board was sympathetic to the Sabatini’s love for the chickens but concluded “emotional ties to the animals do not change the fact that these animals cannot be kept in a Residentially Zoned property.”  The Board’s reasoning hinged on three main arguments.  First, the Board argued that “to permit an exception to this family would create a dangerous precedent in that livestock and poultry would essentially be permissible in all property zones, provided the landowner thought them to be pets.”  The second argument was the Zoning Ordinance did not specifically define “agricultural uses,” but referenced “poultry” in Article III §1000-301.1 of the Ordinance.  Article III specifically described the “technical limitations of agriculture and land use.”  The Board reasoned therefore that, “the keeping of chickens is an agricultural use” because of the mention of poultry in Article III.  The third argument was based on case law.  The Board stated that under Buck Hill Falls Company v. Clifford Press, 791 A.2d 392 (Pa. Super. 2002), “where livestock, animals, or poultry are prohibited from being kept on certain property, the keeping of chickens is prohibited, even if they are considered pets.”   

Sabatini took his case to the trial court where he asserted two main arguments.  First, that the Ordinance does not specifically prohibit chickens from being kept in a residentially zoned area; that  . . . because he was “not engaged in commercial agriculture,” the Ordinance did not apply to him.  Sabatini’s second argument was that the chickens were pets, “which is a permissible accessory use.  The Board argued that “chickens are included under the Ordinance’s provision outlining technical and dimensional and topographical requirements for an agricultural use,” and therefore, are “prohibited in a residentially zoned area,” and that “chickens are not considered to be pets under the Ordinance.  The trial court affirmed the decision of the Zoning Board. 

After the trial court affirmed the decision of the Zoning Board, Sabatini appealed.  He argued that the use of the word poultry, within the agricultural section of the Ordinance, Article III, §1000-301.1, “does not ipso facto bring the chickens within the purview of the agricultural portion of the Ordinance.”  In considering the case, the court cited Ligo v. Slippery Rock Township, 936 A.2d 1236, 1238 (Pa. Cmwlth. 2007), which held that “zoning ordinances are to be liberally construed to allow the broadest possible use of land.”  The court also cited  Kohl v. New Sewickley Township Zoning Hearing Board, 108 A.3d 961, 968 (Pa. Cmwlth. 2015), which held that courts are “guided to construe words and phrases in a sensible manner, utilize the rules of grammar and apply their common and approved usage, and give undefined terms their plain, ordinary meaning.” Taking a plain-view approach to the meaning of the word “agriculture” as written in the local Zoning Ordinance, the court agreed with Sabatini.  The court recognized “a board’s interpretation of its own zoning ordinance is entitled to great deference and weight,” quoting Hafner v. Zoning Hearing Board of Allen Township, 974 A.2d 1204, 1210 (Pa. Cmwlth. 2009).  However, the court said, “if that interpretation is inconsistent with the plain language of the ordinance or the meaning of the ordinance is unambiguous, the interpretation carries little or no weight” (quoting Malt Beverages Distributors, 918 A.2d at 176). This is because a zoning board is not a legislative body, and it lacks authority to modify or amend the terms of a zoning ordinance.

The court next looked at the definition of “commercial” in Black’s Law Dictionary, and found that Sabatini was not keeping his chickens for any kind of commercial use (such as selling eggs, butchering for meat, etc.).  Therefore, because the chickens were not being used for commercial purposes, they could not be considered agricultural.  The Zoning Board’s argument that the chickens were not traditional pets also failed. 

Because the Commonwealth Court looked at the plain meaning of the language of the statute and recognized that a Zoning Board is not a legislative body, Sabatini was successful in his appeal.  A court that interpreted the totality of the circumstances could possibly have reached a different outcome.  Luckily for the Sabatinis, the court used a reasonable approach to interpret the language and intent of a zoning ordinance.  The chickens were considered pets and an accessory use to the property. 

Sabatini v. Zoning Hearing Bd. of Fayette Cty., 230 A.3d 514 (Pa. Commw. Ct. 4/24/2020).

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