Dunn v. Zoning Hearing Board

PALLADINO, Judge. George and Barbara Dunn (Appellants) appeal from an order of the Court of Common Pleas of Chester County (trial court) affirming a decision of the Zoning Hearing Board of West Vincent Township (Board) holding that Appellants’ kennel was a conditional use and limiting the number of hounds permitted at the kennel to twenty-eight. On July 5, 1978, Appellants purchased an undeveloped tract of land in West Vincent Township (Township). Appellants subdivided the tract into three lots, selling two of the lots, and keeping the largest lot (premises) for themselves. The premises are located in the RC Rural-Conservation District under the West Vincent Township Zoning Ordinance (Ordinance). At the time the premises were purchased, the permitted uses in the RC district included single family detached dwellings, farming and other agricultural uses, and “accessory buildings and uses customarily incidental to the above uses.” Ordinance § 403. Commercial kennels were a conditional use. On July 22, 1978, Appellants were issued a building permit for a barn. Construction of the barn commenced in August, 1978, but was not under roof until November, 1978. Part of the barn is designed to house the pack of foxhounds which Appellants maintain, with an additional outside fenced area for dog runs. By the fall of 1978, twenty-eight dogs were kept at the premises. On September 25, 1978, the Ordinance was amended by changing the definition of kennel, and making all kennels, not just commercial kennels, a conditional use in the RC [492] district. The revised definition of kennel, Ordinance § 202, reads as follows: A structure or enclosed area housing more than 4 dogs or an establishment under the Pennsylvania Dog law operated either full or part-time or where the owner or operator receives remuneration for breeding, boarding, clipping, showing, training or sale of dogs. On November 10, 1985, the Township Zoning Officer issued a Cease and Desist Order to Appellants for operating a kennel without first obtaining conditional use approval. The Appellants appealed to the Board, which after several hearings, found that Appellants’ use of the property for twenty-eight hounds established a nonconforming use, but limited the kennel to that number, unless conditional use approval was obtained for each additional hound. Appellants appealed to the trial court, which affirmed the decision of the Board. Appellants appealed. On appeal to this court, Appellants raise two issues: (1) whether the Board erred in finding that the kennel was a conditional use requiring approval rather than an accessory use; and (2) whether the Board erred in holding that the maintenance of the pack of hounds as a nonconforming use is limited to twenty-eight hounds. In a zoning appeal where the trial court does not take any additional evidence, our scope of review is limited to a determination of whether the zoning hearing board has manifestly abused its discretion or committed an error of law. Andreucci v. Zoning Hearing Board of Lower Milford Township, 104 Pa. Commonwealth Ct. 223, 522 A.2d 107 (1987). A zoning hearing board abuses its discretion only if its findings are not supported by substantial evidence. Id. The Ordinance clearly defines a kennel as an enclosure housing more than four dogs. The rules of statutory construction require that when general and specific sections of statutes conflict, the two shall be construed so as to give effect to both. 1 Pa.C.S. § 1933. The Board was correct in [493] concluding that the Appellants’ kennel is a conditional use. To be an accessory use, the enclosure for the dogs would have to house four or less animals. On the issue of limiting the number of dogs, under Ordinance § 202, the term “non-conforming” is defined as follows: A building, or other structure, use, or lot, which by reason of design, size or use, does not conform with the requirements of the District, or Districts, in which it is located. The Board found that the Appellants had a nonconforming kennel which was occupied by twenty-eight dogs. We find no error with this conclusion. However, any expansion of that use must be consistent with the policy of this state to restrict nonconforming uses closely and to construe strictly any provisions in zoning ordinances which provide for the continuance of nonconforming uses. Hanna v. Board of Adjustment, 408 Pa. 306, 183 A.2d 539 (1962). The right to expansion is not unlimited, but may be subject to reasonable restrictions so that the expanded use is not detrimental to the public health, welfare and safety. Silver v. Zoning Board of Adjustment, 435 Pa. 99, 255 A.2d 506 (1969). The Township has established regulations on nonconforming buildings or uses. While permitting the continuation of such uses under section 1301.a of the Ordinance, extensions or changes of such uses are governed by section 1301.b which reads in pertinent part as follows: (2) All Other Uses: The Zoning Hearing Board may authorize as a special exception the expansion up to fifty (50) percent of floor area of a nonconforming building or structure, ... or the manufacturing or processing capacity of such use, whether or not buildings are involved; provided that any yard, the dimensions of which are nonconforming, shall not be further reduced. Any extension or enlargement shall be immediately adjacent to the existing nonconforming use and shall conform to the area and height regulations of the district in which it is situated. [494] (3) Changes: When authorized as a special exception, a nonconforming use or a building or land may be changed to a nonconforming use of the same or more restricted classification, although structural changes or alterations are required. Whenever a nonconforming use of a building or land has changed to a use of a more restricted classification or to a conforming use, such use shall not thereafter be changed to a use of a less restricted classification. It is clear that the Ordinance is written to control not only the area expansion of a nonconforming use, but the expansion of the intensity of use of a nonconforming use. While neither manufacturing nor processing are defined in the Ordinance, a process is commonly defined as “a natural phenomenon marked by gradual changes that lead toward a particular result” or a “series of actions or operations conducing to an end.” Webster’s Ninth New Collegiate Dictionary 937 (1984). As a result, even though the number of hounds has increased as a result of natural breeding processes, it may be controlled under the Ordinance, because such a process is an increase in the intensity of use. However, in light of the above discussion on nonconforming uses, we conclude that the trial court erred by affirming the Board’s holding that to increase the number of hounds beyond twenty-eight, the Appellants must receive approval for a conditional use. Under the Ordinance Appellants have a right to expand the nonconforming use, i.e. the number of hounds, by requesting a special exception. Because the Township has established a procedure to be followed in order to expand a nonconforming use, such a procedure must be followed. Accordingly, we affirm the trial court on the limitation on the number of hounds permitted, but reverse on the method to be employed to increase the number of hounds. ORDER AND NOW, March 28, 1990, the order of the Court of Common Pleas of Chester County is affirmed as to the [495] conditional use status of the kennel and the limitation of the number of hounds permitted at the kennel, but is reversed as to the holding that conditional use approval is necessary to increase the number of hounds permitted at the kennel.