Opinion
No. 1185 C.D. 2014
04-22-2015
Michael A. Serafin and Ronda E. Serafin, Appellants v. Cordorus Township Zoning Hearing Board
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Michael and Ronda Serafin (collectively, Neighbors) appeal an order of the Court of Common Pleas of York County (trial court) that authorized Christopher and Toma Rutters (collectively, Landowners) to use their land, located in an Agricultural District, for a horse riding school. In doing so, the trial court affirmed the decision of the Codorus Township Zoning Hearing Board that boarding horses is permitted as of right in that zoning district and that a riding school is permitted by special exception. Discerning no merit to Neighbors' contrary interpretation of the Codorus Township Zoning Ordinance, we affirm.
CODORUS TOWNSHIP ZONING ORDINANCE, YORK COUNTY, PENNSYLVANIA, FEBRUARY 2009, §§101-1205, as amended.
Background
Landowners own 10.9 acres of land located in the Agricultural District of Codorus Township, bounded on two sides by Fiscal Road and Pine View Road. The property had been improved by a house, a barn, a horse riding ring and several outbuildings. However, when Landowners purchased the property in 2004, it had been uninhabited for years and was overgrown with vegetation. Landowners restored the property by clearing seven acres of brush to create pastures, renovating the house, and building a new barn, garage and a shed. The riding ring was moved next to Fiscal Road and a wooden fence built around it.
In 2007, Landowners began boarding horses and giving riding lessons. In 2013, the Township Zoning Officer issued a notice of two violations of the Zoning Ordinance to Landowners. It first asserted that there were too many horses on the property, which depleted the ground cover and created a drainage problem for a neighboring property. It next asserted that Landowners had started a home occupation without obtaining a special exception. Landowners appealed to the Board and also filed an application for a special exception.
At the hearing before the Board, Toma Rutters testified that when she and her husband purchased the property in 2004 it was "uninhabitable, abandoned and overgrown. It was a safety and health hazard to the community." Reproduced Record at 61a (R.R. ___). Landowners spent $250,000 on renovations, and they secured building permits for each aspect of the project. Mrs. Rutters testified that she had numerous conversations with Bill Fogle, who served as Zoning Officer at the time the property was being restored. Fogle informed her she did not need a permit for the riding school or to put up a fence around the riding ring. Landowners operated their business without complaint until 2013, when they received the violation notice.
At the time the violation notice was issued, Landowners had been working with the York County Conservation District to improve their practices. The County suggested manure storage and pasture management improvements that Landowners implemented. The Conservation District found no overgrazing. Landowners' application as a Conservation District Cooperator was accepted. By the time of the hearing, Landowners were boarding ten horses, including two of their own, and they have never boarded more than 14 horses. The owners of the other horses come by once a week to ride them, and they do not all come at the same time. At present, one student comes to the property once a week for riding lessons. In the past, Mrs. Rutters has instructed five students, but she never instructs more than one student at a time.
Tom Shelly, a neighbor of Landowners, testified on their behalf. Prior to Landowners' renovations, the property had been infested by vermin and was a neighborhood eyesore. He testified that Landowners were an asset to their rural community, noting that the riding school does not generate traffic. He stated that if there are "more than three cars there, I think I'm late for the party." R.R. 169a.
Galen Smith, who has farmed 325 acres of land in York County for 36 years, also testified on behalf of Landowners. He explained that Landowners' property cannot be tilled because the land is too steep, too rocky or too wet because of the stream that crosses the property. The best soil is located in the northern portion of Landowners' property where the buildings are located. The soils where the pastures are located are classed at Level 4, i.e., low quality, based on a 2002 survey of York County soils done by the U.S. Department of Agriculture. Smith opined that even so, the total acreage of the property is too small to make it economically feasible for growing crops.
Ryan Kaltreider, a Township employee, testified that Landowners needed a special exception for their business and asserted that the riding ring was too close to the road. Further, the riding ring, which is 160 feet from Neighbors' property line, is too close to Neighbors' land for a home occupation business. He also believed the riding school would increase traffic. Peter Schilling, the Zoning Officer, testified that he issued the enforcement notice to Landowners after he received a complaint. After reviewing the Zoning Ordinance, he concluded that a riding academy and stable were not permitted except by special exception. He testified that there was currently no drainage problem at the property.
Michael Serafin, one of the Neighbors, testified that he and his wife own a 2.9 acre property that borders Landowners' property. He explained that 18 yards separates his barn from Landowners' property line and that the riding ring fence is 42 yards from his property line. His backyard pool is 94 yards from the riding ring fence. From the windows of his house, he can see horse trailers and farm equipment instead of his preferred "pasture-like" view. R.R. 156a. He testified that the horses create clouds of dust and have introduced more flies to his property. His wife, Ronda, testified that the riding ring is dangerously close to a road, explaining that the traffic noise may startle the horses. She also asserted that Landowners' business will increase traffic in the neighborhood, thereby introducing crime. She cannot hang her clothes out to dry because of the smell of manure, and the couple was forced to close their pool a month early because of the flies.
Neighbors also presented the testimony of Dawn Olsen, who had previously done farming and horse training while living in Minnesota. Olsen stated that Landowners' pastures could not sustain ten horses and were overgrazed. She acknowledged, however, that horses need not receive their nutrition from pasturing. In fact, the horses could be kept inside and not pastured at all. Horses can "live on hay, supplements and grain alone." R.R. 210a.
Zoning Board Decision
The Zoning Board held that keeping horses in the Agricultural District was expressly permitted by Section 505(1) of the Ordinance. It expressly authorizes the following specific uses:
(1) Agricultural uses related to:
ZONING ORDINANCE §505(1) (emphasis added). The Zoning Board found that boarding horses owned by others was expressly permitted as the "raising and keeping of horses."a. Tilling of land.
b. Raising of farm products.
c. Raising and keeping of horses, cattle and other livestock.
d. Raising and keeping of poultry & poultry products.
The Zoning Ordinance permits accessory buildings and uses relating to a permitted principal use. ZONING ORDINANCE §505(20) (categorizing "[a]ccessory buildings & uses" as permitted). The Board found that the evidence presented was not sufficient to conclude that giving horseback riding lessons was a permitted accessory use.
On the other hand, a riding school is not an expressly permitted use anywhere in the Township. However, Section 105 of the Zoning Ordinance permits uses that are not listed in the ordinance by special exception. Concluding that Landowners' horseback riding school was permitted under Section 105, the Zoning Board granted the special exception, subject to the condition that Landowners plant and maintain a buffer of evergreen trees between Neighbors' property and the riding ring. Finally, the Zoning Board found no basis for either of the alleged zoning violations and sustained Landowners' appeal.
Neighbors appealed to the trial court, which did not take additional evidence. It affirmed the Zoning Board's adjudication in its entirety. Neighbors appealed to this Court.
Where the trial court takes no additional evidence, our review determines whether the zoning hearing board committed an error of law or abused its discretion. Ficco v. Board of Supervisors of Hempfield Township, 677 A.2d 897, 899 n. 4 (Pa. Cmwlth. 1996). A zoning hearing board abuses its discretion if its findings are not supported by substantial evidence. Valley View Civic Association v. Zoning Board of Adjustment, 462 A.2d 637, 640 (Pa. 1983).
Issues on Appeal
On appeal, Neighbors raise five issues. First, they contend that the Zoning Board erred in holding that "keeping" horses for profit is expressly permitted in the Agricultural District. Second, they contend Landowners do not meet the criteria for a special exception either for boarding horses or for teaching people to ride them. Third, they contend that Landowners' business is a home occupation, which is unlawful because Landowners did not obtain a permit. Fourth, they contend that the Zoning Board should have limited the number of students and horses on Landowners' property as conditions to the special exception. Fifth, they contend that the Zoning Board erred in holding that the setback for the riding ring was ten feet from the property line.
"Keeping" of Horses
In their first issue, Neighbors argue that "keeping" horses is different from boarding horses. Section 505(1) of the Zoning Ordinance permits the "raising and keeping of horses," but Neighbors contend that 2012 amendments to the Ordinance eliminated the keeping and raising of horses for a fee as a permitted use. Landowners respond that agricultural uses are, by their nature, commercial and include housing livestock for others. Further, the 2012 amendments did not limit the scope of Section 505.
Prior to 2012, former Section 302 of the Zoning Ordinance contained the following definition of "Kennel or Stable:"
Any lot on which animals are kept, boarded, or trained for a fee, whether or not in special buildings, or runway or not, including but not limited to, dog and cat kennels, horse stables, or riding academies.FORMER ZONING ORDINANCE §302 (February 2009). Correspondingly, Former Section 505(9) required landowners to obtain a special exception for "[b]oarding or commercial kennel or stable." FORMER ZONING ORDINANCE §505(9) (February 2009). In 2012, the definition of "Kennel or Stable" was deleted and replaced with a new definition of "Kennel," which states:
A facility where five (5) or more adult dogs (over six (6) months or age) reside and one or more dogs irrespective of whether such dogs are over six (6) months of age are being utilized for a commercial purpose such as being boarded, held for sale or used for breeding.ZONING ORDINANCE §302 (November 14, 2012). In addition, Section 646 was added to the Zoning Ordinance to establish specific standards for a kennel. Notably, the 2012 amendments did not define "raising and keeping horses." Neighbors argue that the absence of this definition means that the intention was to exclude boarding horses for a fee from the Agricultural District.
The Zoning Board rejected that interpretation. The purpose of the Agricultural District is to permit "agricultural activities" including "land uses and activities which are either agricultural in nature or an act in direct support thereof." ZONING ORDINANCE §501. The Zoning Board concluded that the elimination of the definition of "stable" from the Zoning Ordinance meant that "raising and keeping horses" authorized by Section 501(1) was to be given a broad interpretation that included the boarding of horses for a fee. A zoning hearing board's interpretation of its own "ordinance is entitled to great weight and deference from a reviewing court." Borough of Milton v. Densberger, 719 A.2d 829, 831-32 (Pa. Cmwlth. 1998).
We reject Neighbors' strained interpretation of the 2012 amendments as forbidding the boarding of horses but permitting commercial dog kennels in the Agricultural District. It is horses, not dogs, that have been used in agriculture. Zoning Hearing Board of Mahoning Township v. Zlomsowitch, 486 A.2d 568, 569 (Pa. Cmwlth. 1985) ("A stable is a familiar structure used for farm and agricultural purposes."); Appeal of Lowney, 406 A.2d 1160, 1162 (Pa. Cmwlth. 1979) ("In our view, a kennel cannot be classified as a traditional agricultural use...."). The Zoning Board's interpretation is logical and consistent with the purpose of the Agricultural District.
Riding School Special Exception
In their second issue, Neighbors assert that Landowners did not qualify for a special exception for their riding school. The Zoning Board relied upon Section 105 of the Zoning Ordinance, which states that uses not expressly permitted in any zoning district
Because we agree with the Zoning Board that a special exception is not needed to board horses, we will only address the criteria for a special exception as it applies to a riding school.
shall be allowed by special exception ... to the extent that similar uses are permitted or allowed, provided that said use meets the requirements for a special exception and does not constitute a public or private nuisance.ZONING ORDINANCE §105.
The Zoning Ordinance sets forth the factors to be considered in the grant of a special exception. They are as follows: (1) the purpose of the intended use; (2) the compatibility of the proposed use; (3) the suitability of the proposed use; (4) the adequacy of needed utility services; (5) the accessibility of the proposed use; and (6) the conformity of the proposed use. ZONING ORDINANCE §1007(1)(c)(1)-(6). Section 1007(1)(c)(7) provides that where the proposed use is located in the Agricultural District, the applicant must also show that the land is not appropriate for growing crops. This may be done by a land soil survey; by showing the land has not been farmed in the past five years; or by showing that the land cannot be farmed "with farm machinery typically used at the present time by farmers in the area" due to the size or shape of the land or the existing features of the land. ZONING ORDINANCE §1007(1)(c)(7)(c). Neighbors argue that the riding school creates noise pollution, dust, flies, the odor of manure and increased traffic on the road, i.e., it creates a nuisance in violation of Section 105 of the Zoning Ordinance.
The Zoning Board addressed each of the requirements for a special exception. Noting that "keeping horses" was expressly allowed in the Agricultural District, it found horseback riding lessons to be a compatible use in this district. Further, it found that Landowners' riding school had adequate utility services, a large area for parking and adequate space for motor vehicle and pedestrian entry and egress. In finding Landowners' property not appropriate for growing crops, the Zoning Board accepted the testimony of Landowners' expert Smith, which established that the land available for tilling was not large enough to use modern farm machinery. It rejected Neighbors' nuisance argument, noting that agriculture creates sounds and odors. Neighbors did not establish that the riding school use exceeded the noise and odors expected in the Agricultural District. We hold that the Zoning Board did not err or abuse its discretion in its grant of the special exception for the riding school under authority of Section 105 of the Zoning Ordinance.
Home Occupation
In their third issue, Neighbors argue that the Zoning Board erred because Landowners were operating an illegal business out of their home. The Zoning Ordinance defines "home occupation" as follows:
Any use customarily conducted entirely within a dwelling or in a building accessory thereto and carried on by the inhabitants residing therein plus not more than two (2) non-resident employees providing that the use is clearly incidental and secondary to the use of the dwelling for dwelling purposes, the exterior appearance of the structure or premises is constructed and maintained as a residential dwelling, and no goods are publicly displayed on the premises other than signs as provided herein.ZONING ORDINANCE §302 (emphasis added). Neighbors argue that riding schools are "customarily conducted" in structures. They also contend that Landowners' home occupation does not meet home occupation requirements set forth in the Zoning Ordinance. Neighbors argue that Landowners did not establish that the dust or odors generated by the horses used in the course of a riding lesson will not go beyond the property line and, thus, did not meet the standards for a home occupation.
Section 614(2) of the Zoning Ordinance sets forth requirements for a home occupation. They include: The external appearance of the dwelling unit or accessory structure must be that of a dwelling or accessory structure; it cannot involve any outside storage, cannot involve any waste product other than domestic sewerage or municipal waste, and it cannot tend to create dust or odors or noise outside the building in which the use is being conducted. ZONING ORDINANCE, §614. Landowners' horse riding lessons do not meet these conditions.
If one or more of the above conditions are not met, an applicant may seek a special exception. However, in order for a special exception to be granted, an applicant must establish that "the use shall not create dust or odors beyond the property of the owner of the use;" "the use will not involve any waste product other than domestic sewage or municipal waste;" and that there will be no audible noise to neighbors between 6:00 p.m. and 7:00 a.m. and to take action or "put in noise insulation" to minimize audible noise during the period between 7:00 a.m. and 6:00 p.m. ZONING ORDINANCE §614(3). Section 614(2)(d) and (3)(b) of the Ordinance define waste products pursuant to Section 103 of the Pennsylvania Solid Waste Management Act, Act of July 7, 1980, P.L. 380, as amended, 35 P.S. § 6018.103. Therein, horse manure constitutes "agricultural waste." Id.
The Zoning Board noted that Neighbors presented no evidence to support their contention that riding schools are conducted in a residence or other structure. We reject Neighbors attempt to characterize a horse riding school as a home occupation. A riding school is not a business "customarily conducted entirely within a dwelling or in [an accessory] building ... [with] the appearance of a residential dwelling." ZONING ORDINANCE §302 (emphasis added). Merely to state the proposition is to refute it. Neighbors' strained interpretation of the Zoning Ordinance must yield to the Zoning Board's more logical conclusion that a riding school is not a home occupation.
Conditions to Special Exception for Riding School
In their fourth issue, Neighbors argue that the Zoning Board should have limited the number of horses and students. Landowners respond that Neighbors never challenged the number of students or suggested that the number of lessons be limited as a condition to a special exception.
When a use is permitted, the municipality may impose conditions so long as they are not more restrictive than what is imposed by the ordinance itself. Neighbors of Keiners Lane v. Township of Robinson, 550 A.2d 863, 865 (Pa. Cmwlth. 1988). Here, the Zoning Ordinance is silent on the number of horses that may be kept on the property. The Zoning Ordinance authorizes "reasonable conditions and safeguards, in addition to those expressed in the Ordinance, as it may deem necessary to implement the purposes of [the] Ordinance." ZONING ORDINANCE §1007(1). The imposition of conditions by the Zoning Board is subject to the abuse of discretion standard. Coal Gas Recovery, L.P. v. Franklin Township Zoning Hearing Board, 944 A.2d 832, 839 (Pa. Cmwlth. 2008).
The Ordinance does place additional requirements on "large livestock operation[s]," which are defined as having "over 20,000 chickens, 5,000 turkeys, 500 hogs or 200 head of cattle or other animals weighing in excess of three hundred (300) pounds." ZONING ORDINANCE §302. Large livestock operations are a permitted use in the Agricultural District, but are required to have a lot size of at least 50 acres.
Neighbors did not challenge the number of students at the riding school or present evidence relevant to what number would be appropriate. Mrs. Rutters testified that she teaches one student at a time. In the absence of any other evidence, the Zoning Board did not abuse its discretion in not imposing a student limit. Neighbors believe Landowners should have been limited to boarding ten horses, asserting that when they boarded 14 horses the land became overgrazed. However, as the Zoning Board pointed out, pasture management is not covered by the Zoning Ordinance. Further, Neighbors' own expert testified that horses do not need to be grazed in pastures in order to meet their nutritional needs. In sum, the Zoning Board did not abuse its discretion by not limiting the number of horses and students on the property.
Riding Ring Setback
In their fifth issue, Neighbors challenge the Zoning Board's holding that the riding ring satisfied the setback requirements, after finding that the riding ring was located in a rear yard. Neighbors claim that Landowners' property is a corner lot with two front yards and, thus, the fence should have been set back 50 feet from the road, not ten feet as found by the Zoning Board. Landowners counter that Neighbors' claim rests on the flawed assumption that the riding ring is a structure. Landowners contend the riding ring is nothing more than land with sand on it surrounded by a fence, and a fence is not subject to the setback rules.
The Zoning Board made two findings about the riding ring. First, it found that the riding ring was located at the rear of the property, not the front, with a setback requirement of ten feet. Second, it concluded that the Zoning Ordinance did not require that fencing be set back 50 feet from the road upon which a farm home fronts.
The Zoning Ordinance addresses the setback requirements in Section 502(1). It states as follows:
1. Any structure hereafter erected or any lot hereafter used or occupied for any lawful purpose shall provide for the minimum and not exceed the maximum dimensions as specified below.
(a) Minimum front yard -
(1) For a nonagricultural use - fifty (50) feet from center of road
(2) For a principal or accessory building - fifty (50) feet from center of road
(b) Minimum side yard -
(1) For a principal building - fifteen (15) feet
(2) For an accessory building - ten (10) feet
(3) For a nonagricultural use - ten (10) feet
(c) Minimum rear yard -
ZONING ORDINANCE §502(1). A "structure" is defined as "[a]ny man-made object having an ascertainable stationary location on or in land or water, whether or not affixed to the land." ZONING ORDINANCE §302. The Zoning Ordinance does not define "fence."(1) For a principal building - twenty-five (25) feet
(2) For an accessory building - ten (10) feet
(3) For a nonagricultural use - ten (10) feet
As explained by the trial court, Section 302 of the Zoning Ordinance defines "corner lot," "front yard" and "rear yard," but it does not state that corner lots have two front yards. The trial court accepted the Zoning Board's finding that the riding ring was behind the house and its conclusion that the setback of ten feet applied. Because the Zoning Board's construction of its own ordinance is entitled to deference, we defer to the Zoning Board and reject Neighbors' proposed interpretation.
Because we accept the Zoning Board's conclusion that the setback for a rear yard applied, we do not address whether the fence constitutes a structure. --------
Conclusion
For the above-stated reasons, we affirm the trial court.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 22nd day of April, 2015, the order of the Court of Common Pleas of York County dated June 13, 2014, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge