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Watch The Company Your Words Keep

In matters of zoning, the use of the wrong word can make or break you.  This recently was demonstrated in the case of Kohl v. New Sewickley Township Zoning Hearing Board v. Layton, 126 C.D. 2014 (Pa. Commonwealth, filed January 21, 2014).  In this 21-page opinion, the Commonwealth Court wrestled with the meaning of the word “keeping.”

The township did not have any restrictions on how many dogs could be kept as pets.  However, the zoning ordinance did have a definition for a kennel: “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. (emphasis added).”  The Kohls obtained dogs through animal shelters, police departments and individuals, and kept any dog not adopted.  The Kohls were licensed by the Pennsylvania Department of Agriculture as a nonprofit kennel pursuant to the Pennsylvania Dog Law.  Neighbors complained about the barking and smell, and the Kohls were cited for operating a kennel.  The Kohls applied for a variance that was denied by the zoning hearing board.  The zoning hearing board relied predominately on the Dog law to determine that the Kohls were operating a “kennel.”  The lower court reversed, and the Commonwealth Court affirmed.

First, the zoning hearing board should not have relied on the Dog Law since the zoning ordinance makes no reference to the Dog Law, and the zoning ordinance’s definition of a kennel is different than the Dog law’s definition.

Second, the lower court found that the Kohls did not operate the dog-rescue operation for economic gain.

Third,  the neighbors argued that the lower court erroneously incorporated the notion of “economic gain” into the first sentence of the kennel definition, and that the word “keeping” encompasses situations where owners merely preserve, maintain, or take care of animals.  The Commonwealth Court went to great lengths to explain how statutory construction works, and how to determine the intent of legislation.  In zoning law, any ambiguity or doubt must be resolved in favor of the  landowner.

In analyzing the definition of kennel, the Commonwealth Court determined that the gerunds “breeding,” boarding,” “grooming,” and the verb “show” all connote a financial component.  Therefore, the last word in the string “keeping” can most reasonably be read to relate to the main subject of financial profit.  Or, to put it another way, words are known by the company they keep.  Although the notion of economic gain is only found in the second sentence, the Commonwealth Court found that a reasonable interpretation of “kennel” is that the activities in the first sentence, whether they be breeding, grooming or keeping of 4 dogs or less, must be done for “economic gain.”  The Commonwealth Court also noted that interpreting the word “keeping” broadly would lead to an absurd result because anyone owning or possessing more than one dog would be operating a kennel.

The first lesson to be learned is to be careful how you define words.  The definition of a “kennel” in the Township’s zoning ordinance is not unusual.  However, such a definition will not be helpful to deter the number of animals a person keeps as pets or for a nonprofit purpose.

The second lesson to be learned is when to use the enforcement provisions of a zoning ordinance.  Neighbors will often try to involve the municipality in a neighbor dispute.  The Commonwealth Court pointed out in a footnote that its decision did not preclude the neighbors from filing common law claims against the Kohls based upon their dogs’ behavior.  Maybe that should have been the position of the Township from the beginning.