E.T. Franks and T.S. Franks, h/w v. Fayette County ZHB v. S. Gowatski and B. Gowatski, h/w ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward T. Franks and Theresa :
S. Franks, husband and wife, :
Appellants :
:
v. :
:
Fayette County Zoning Hearing :
Board :
:
v. :
:
Shawn Gowatski and Billi : No. 1638 C.D. 2014
Gowatski, his wife : Argued: November 17, 2015
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: May 12, 2016
Edward T. Franks and Theresa S. Franks, husband and wife,
(collectively, Objectors) appeal from the Fayette County Common Pleas Court’s (trial
court) August 11, 2014 order affirming the Fayette County Zoning Hearing Board’s
(ZHB) order denying their appeal. Objectors present six issues for this Court’s
review: (1) whether the ZHB erred by finding Shawn Gowatski (Applicant) and Billi
Gowatski (Mrs. Gowatski) (collectively, Applicants) met the requirements in the
Fayette County Zoning Ordinance (Ordinance) for a special exception; (2) whether
the ZHB erred by concluding that Applicants met their burden under Sections 1000-
500, 1000-503 and 1000-842 of the Ordinance; (3) whether the ZHB improperly
1
This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
shifted the burden of proof to Objectors; (4) whether the ZHB erred by limiting
Objectors’ counsel’s cross-examination; (5) whether the ZHB erred by failing to
consider evidence of the neighborhood’s residential character, the lack of safety
measures for dogs of vicious propensity, and the health, safety and welfare of the
adjacent community; and (6) whether the ZHB erred in failing to require
soundproofing in the Applicants’ land development plan.2 After review, we affirm.
Applicants own real property located at 270 Gimlett Hill Road in Mt.
Pleasant, Bullskin Township, Fayette County, Pennsylvania (Property). The Property
is located in an A-1 Agricultural-Rural zone. Applicants filed a petition for a special
exception (Petition) to operate a boarding kennel for dogs and cats on the Property.
The ZHB held three hearings during which Applicants, Objectors and others testified.
Based on the evidence presented, the ZHB made the following relevant
findings: Applicants planned to construct a 39.4 x 99.4 foot building (Building) on
the Property for use as a boarding kennel. The kennel will be operated between 8:00
a.m. and 5:00 p.m., Monday through Saturday. Applicants also intend to offer pet
grooming services to the general public. Animal pick-up and drop-off will occur
within the kennel from 8:00 a.m. to 10:00 a.m. and 5:00 p.m. to 7:00 p.m. Applicants
intend to install a ventilation and soundproofing system in the Building. Specifically,
the Building will be constructed using foam-filled concrete blocks and an insulated
roof to control sound. Although Applicants have not conducted sound studies or
obtained sound-related information from similar facilities, Applicants intend to
comply with the Ordinance’s decibel limitations. The Building will have a maximum
of thirty indoor/outdoor runs for dogs and an indoor area to house a maximum of ten
cats. The outdoor dog runs will only be used during daylight hours, with a maximum
of five dogs per side. Applicants will install a lockable fence around the outdoor
2
By January 3, 2015 letter, the ZHB notified this Court that it would not file a brief, but
joined in the arguments set forth in Applicants’ brief.
2
animal runs. Each run will be locked, and a privacy fence will be installed around the
animal runs. The animal runs will be cleaned a minimum of twice per day. Liquefied
animal waste will be washed into a channel with a six to twelve inch containment lip
which will run to a holding tank that will be installed and operated in accordance with
the Bullskin Township’s Holding Tank Ordinance. Solid waste will be double-
bagged and refrigerated until picked up by the municipal waste disposal service.
Applicants will control excessive dog barking by requiring dog owners to use bark
suppression collars. Lighting for the Building will be installed so not to impact the
surrounding properties.
On November 27, 2013, the ZHB concluded that the Applicants had met
their burden of proof, and that the proposed kennel would not adversely impact the
health, safety and welfare of the surrounding residents. The ZHB further
acknowledged that it may grant a special exception for a boarding kennel in an A-1
Agricultural-Rural zone. Accordingly, the ZHB issued Resolution 13-41, granting
Applicants’ Petition.
Objectors appealed to the trial court. On August 11, 2014, based on the
ZHB’s record, the trial court affirmed the ZHB’s decision. Objectors appealed to this
Court.3
3
Where the trial court takes no additional evidence, this Court’s
‘review is limited to determining whether the Board committed an
abuse of discretion or an error of law.’ Taliaferro v. Darby T[wp.]
Zoning Hearing B[d.], 873 A.2d 807, 811 n.1 (Pa.[]Cmwlth.[]2005).
A zoning hearing board abuses its discretion when its factual findings
are not supported by substantial evidence. JoJo Oil Co. v. Dingman
T[wp.] Zoning Hearing B[d.], 77 A.3d 679, 685 n.6
(Pa.[]Cmwlth.[]2013). ‘Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’ Id.
Tinicum Twp. v. Nowicki, 99 A.3d 586, 589 n.6 (Pa. Cmwlth. 2014) (emphasis added).
3
Objectors’ first argument heading in their brief describes Objectors’ first
issue as a challenge to the ZHB’s finding that Applicants provided sufficient evidence
of statutory compliance for the grant of a special exception. However, the heading is
wholly different from the content of their argument. Objectors’ entire first argument
challenges the trial court’s interpretation and application of relevant ordinance
sections, not the ZHB’s decision. Objectors cite to and quote from particular
portions of the trial court’s opinion, arguing that the trial court’s interpretation is
erroneous. Objectors’ first argument is totally devoid of any allegation of error on
the part of the ZHB.
Since the trial court took no new evidence, it is the ZHB’s “decision, not
the [trial] court’s [decision], we must review.” City of Phila. v. Angelone, 280 A.2d
672, 676 (Pa. Cmwlth. 1971); see also In re Brickstone Realty Corp., 789 A.2d 333,
338 n.2 (Pa. Cmwlth. 2001) (“Our standard of review . . . pertains to whether the
[zoning hearing b]oard, not the trial court, erred or abused its discretion.”). Because
Objectors’ first issue pertains solely to alleged errors of law made by the trial court,
which is beyond our scope of review,4 we decline to address it. See Borough of St.
4
Our Supreme Court has explained:
‘Scope of review’ and ‘standard of review’ are often-albeit
erroneously-used interchangeably. The two terms carry distinct
meanings and should not be substituted for one another. ‘Scope of
review’ refers to ‘the confines within which an appellate court must
conduct its examination.’ Coker v. S.M. Flickinger Co[.], Inc., . . .
625 A.2d 1181, 1186 ([Pa.] 1993). In other words, it refers to the
matters (or ‘what’) the appellate court is permitted to examine. In
contrast, ‘standard of review’ refers to the manner in which (or
‘how’) that examination is conducted. In Coker we also referred to
the standard of review as the ‘degree of scrutiny’ that is to be applied.
Id. . . . at 1186.
Morrison v. Dep’t of Pub. Welfare, Office of Mental Health (Woodville State Hosp.), 646 A.2d 565,
570 (Pa. 1994).
4
Lawrence v. Zoning Hearing Bd. of the Borough of St. Lawrence, (Pa. Cmwlth. Nos.
119, 218 C.D. 2011, filed March 21, 2012).5
Objectors next assert that the ZHB erred when it concluded Applicants
met their burden under Sections 1000-500,6 1000-5037 and 1000-8428 of the
Ordinance.
This Court has explained:
The law with regard to conditional uses and special
exceptions is clear.
[T]he applicant for a special exception has both
the duty of presenting evidence and the burden
of persuading the competent tribunal that his
proposal complies with all objective
requirements of the ordinance . . . ; the
objectors to the application have both the duty
of presenting evidence and the burden of
persuasion, that the use will have a generally
detrimental effect on health, safety and welfare
5
In St. Lawrence, this Court noted:
The Borough also argues that the trial court’s Order should be
reversed because, other than citing to its standard and scope of
review, the trial court did not cite any law or specific record
references to support its affirmation of the [zoning hearing b]oard’s
determination. However, we note that, because the trial court did not
take additional evidence, this Court is reviewing the [zoning hearing
b]oard’s decision, not the trial court’s Order, to determine whether
the [zoning hearing b]oard committed an error of law or abused its
discretion.
Id., slip op. at 9 n.5 (citations omitted). We acknowledge that this Court’s unreported memorandum
opinions may be cited “for [their] persuasive value, but not as a binding precedent.” Section 414 of
the Commonwealth Court’s Internal Operating Procedures.
6
Section 1000-500 of the Ordinance requires that all property uses comply with
Performance Standards contained in Article V.
7
Section 1000-503 of the Ordinance is a Performance Standard prohibiting excessive noise.
8
Section 1000-842 of the Ordinance provides that an animal kennel shall be a permitted
special exception subject to certain enumerated conditions and/or standards set forth therein.
5
or will conflict with expressions of general
policy contained in the ordinance.
Foster Grading Co. v. Venango T[wp.] Zoning Hearing
B[d.], . . . 412 A.2d 647, 649 ([Pa. Cmwlth.] 1980).
Furthermore, the objectors must demonstrate to a high
degree of probability that the applicant’s proposal will
substantially affect the health and safety of the community
in an adverse manner. It is not sufficient that the protestants
allege the mere possibility of adverse impact. Finally, it is
important to remember that a conditional use or a special
exception is actually a permitted use absent proof that the
adverse impact on the public interest is greater than might
be expected under normal circumstances.
Robinson Twp. v. Westinghouse Broad. Co., 440 A.2d 642, 644 (Pa. Cmwlth. 1981)
(citations omitted); see also Oasis v. Zoning Hearing Bd. of S. Annville Twp., 94 A.3d
457 (Pa. Cmwlth. 2014); Hoppe v. Zoning Hearing Bd. of the Borough of Portland,
910 A.2d 756, 758 (Pa. Cmwlth. 2006) (“Pennsylvania law provides that a special
exception is a use to which an applicant is entitled as a matter of right unless the
zoning hearing board determines that the use would adversely affect the
community”).
Article V of the Ordinance is titled “Performance Standards.” Within
Article V, Section 1000-500 of the Ordinance states:
A. All uses must comply with the requirements of this
Section. Compliance shall be determined by the Zoning
Officer with respect to permitted uses by the [ZHB] with
respect to special exceptions and by the Board of County
Commissioners with respect to conditional uses. In order to
determine whether a proposed use will conform to the
requirements of this Article, the County may obtain a
qualified consultant’s report whose credentials are
acceptable to the Board of County Commissioners to testify
and whose cost for services shall be borne by the applicant.
....
6
C. The County may assign a private third[-]party agency to
provide measurements for the respective performance
standards from §[ ]1000-501 through §[ ]1000-507 [of the
Ordinance]. Any associated testing fees must be paid by
the applicant (‘complainant’) to the County (or designee).
Any subsequent reimbursement for spent fees would be
between the parties involved in the dispute.
Reproduced Record (R.R.) at 131a. Also within Article V, Section 1000-503(A) of
the Ordinance provides:
Noise which is determined to be objectionable because of
volume, frequency or beat shall be muffled or otherwise
controlled, except that fire sirens and related apparatus used
solely for public purposes shall be exempt from this
requirement. Noise in excess of ninety (90) decibels as
measured on a decibel or sound level meter of standard
quality and design operated on the A-weighted scale at a
distance of twenty-five (25) feet from any property line of
the property on which the noise source is located shall not
be permitted.
R.R. at 132a.
Article VIII of the Ordinance entitled “Uses by Special Exception”
contains Section 1000-800(A) of the Ordinance which expressly governs “[u]ses by
[s]pecial [e]xception” and provides: “All applications for a use by special exception
shall demonstrate compliance with the applicable express standards and criteria of
this Article and the applicable minimum lot area, maximum lot coverage, maximum
building height, setback requirements and bufferyard requirements of the zoning
district in which the use is proposed.” Ordinance § 1000-800(A).9 The express
standards for an animal kennel special exception are contained in Section 1000-842
of the Ordinance, which, among other things, requires that kennels adjacent to
9
Section 1000-800 of the Ordinance is not contained in the Reproduced Record. It was,
however, attached to the certified record.
7
residential lots “be soundproofed[10] to minimize noise impact on adjacent
properties.” R.R. at 133a.
The law is well established that:
It is the duty of the zoning [hearing] board in the exercise of
its discretionary power to determine whether a party has
met its burden of proof. Determinations as to the credibility
of witnesses and the weight to be given to the evidence are
matters left solely to the Board in the performance of its
factfinding role.
Shamah v. Hellam Twp. Zoning Hearing Bd., 648 A.2d 1299, 1304 (Pa. Cmwlth.
1994) (citation omitted; emphasis added); see also Pennsy Supply, Inc. v. Zoning
Hearing Bd. of Dorrance Twp., 987 A.2d 1243 (Pa. Cmwlth. 2009).11
10
The Ordinance does not define the word “soundproof.” “Zoning ordinances are to be
construed in accordance with the plain and ordinary meaning of their words.” Upper Salford Twp.
v. Collins, 669 A.2d 335, 337 (Pa. 1995). The dictionary defines the word “soundproof” to mean,
“to insulate so as to obstruct the passage of sound[.]” Merriam-Webster’s Collegiate Dictionary
1192 (11th ed. 2004).
11
Section 1000-1103(A) of the Ordinance provides:
The [ZHB] shall have the power to decide applications for use by
special exception as specified in this Chapter in harmony with its
general purpose and intent and in accordance with the standards set
forth. The [ZHB] shall approve a use by special exception only if
it meets all applicable requirements of this Chapter and the
express standards and criteria set forth in Article VIII of this
Chapter. In granting a use by special exception, the [ZHB] may
attach such reasonable conditions and safeguards in addition to those
expressed in this Chapter as it may deem necessary to properly
implement this Chapter and to protect the public’s health, safety and
welfare.
R.R. at 135a (emphasis added). Notably, Section 1103(A) emphasizes the necessity of compliance
with Article VIII of the Ordinance, but does not specifically mention Article V of the Ordinance
(Performance Standards).
8
Objectors contend that Applicants failed to meet their burden regarding
the requirements imposed by Sections 1000-503(A) and 1000-842(D)12 of the
Ordinance because Applicants
presented absolutely no testimony with regard to the
manner in which they could or would comply with the
standard. To the contrary, [Applicants] did not have a
sound expert testify as to the manner in which compliance
could be made with the standard not to exceed 90 decibel
levels at a distance of 25 feet from the [P]roperty line.
[Applicants] did not conduct any sound studies for the
proposed boarding kennel on the [Property] or produce
sound related information from like type facilities.
Objectors’ Br. at 22. Further, Objectors point to Mrs. Gowatski’s testimony wherein
she admitted that she had no expertise in measuring sound levels.
A review of the record reveals Mrs. Gowatski testified that the Building
would be constructed with “eight-inch cinder blocks filled with foam or concrete to
help with soundproofing.” R.R. at 25a. She also stated that:
On top of the block it will be stick construction of 2x6 studs
filled with insulation. . . . There will be a soundproofing
membrane between the insulation and [the] drywall to help
with soundproofing. The roofing will be insulated . . . with
spray foam or . . . some form of insulation [to help with the
soundproofing].
Id. She later explained:
I will be using soundproofing insulation, spray foam.
There’s a product called DV block. It’s a membrane block
12
Although Objectors in their second argument make the general assertion that Applicants
failed to meet their burden under Section 1000-842 of the Ordinance, Objectors provided no
specific grounds regarding the conditions with which Applicants allegedly failed to comply.
Instead, Objectors’ basis for their contention that Applicants failed to meet their burden under
Section 1000-842(D) of the Ordinance are contained in Objectors’ fourth argument discussing the
ZHB’s alleged error in disallowing certain cross-examination by Objectors’ counsel. For purposes
of clarity, we will address the latter argument pertaining to Section 1000-842(D) of the Ordinance
below.
9
you put between sheet rock and your insulation. I will be
using as much soundproofing as I can. As[] I stated before,
I live there. So the kennel itself will be soundproofed as
best I can [sic].
R.R. at 45a. In addition, Mrs. Gowatski said that she would take all steps necessary
to comply with the 90 decibel noise limit set forth in Section 1000-503(A) of the
Ordinance’s Performance Standards. See R.R. at 28a. For example, she testified that
to reduce noise, she would limit dogs in the outdoor runs to five dogs on each side of
the kennel at any one time, limit the times that the dogs were permitted outside,
prevent noisy dogs from using the outdoor runs, and use bark control collars. See
R.R. at 20a-21a, 37a.
The ZHB, as factfinder, is to evaluate Mrs. Gowatski’s credibility and to
weigh the evidence presented. Shamah. This Court will not intrude upon the
factfinder’s role so long as there is substantial evidence to support its findings.
Although there was no expert testimony describing the planned soundproofing, the
Ordinance does not make expert testimony a requirement. Notably, Section 1000-
500 of the Ordinance permits, but does not require the County to consult an expert.
Therefore, Mrs. Gowatski’s testimony alone is substantial evidence -- and supports
the ZHB’s findings. Accordingly, the ZHB properly determined that Applicants met
their burden to demonstrate compliance with the Ordinance.
Objectors also argue that the ZHB erred by shifting the burden to
Objectors when Applicants had not met their burden.
Once the applicant has satisfied [its] initial burden, the
burden then shifts to any objectors to establish that the
proposed exception would be detrimental to the public
health, safety and welfare.
Smith v. Zoning Hearing Bd. of Huntingdon Borough, 734 A.2d 55, 59 (Pa. Cmwlth.
1999). Because Applicants did meet their burden, the ZHB properly shifted the
burden to Objectors. See id.
10
Next, Objectors contend that the ZHB erred when it prevented their
counsel Gretchen Mundorff (Counsel Mundorff) from cross-examining Mrs.
Gowatski with regard to her compliance with Sections 1000-503(A) and 1000-842(D)
of the Ordinance. Objectors cite to two portions of the record documenting
exchanges between Objectors’ counsel, Applicants’ counsel and the ZHB members
during the October 30, 2013 hearing.
First, Objectors assert that Counsel Mundorff was precluded from cross-
examining Mrs. Gowatski with regard to her compliance with the noise level
restrictions set forth in Section 1000-503(A) of the Ordinance. The record reflects
that although the ZHB initially encouraged counsel to move on because Mrs.
Gowatski had already answered the questions posed, the ZHB ultimately permitted
counsel to continue the inquiry to ensure the information was included in the record.
[Counsel] Mundorff: . . . . I want to create a record and it’s
my right to do so.
....
[ZHB member] Marella: I believe that was all asked and
answered.
[ZHB member] Brown: She already said no, she did not. If
she’s out of compliance - -
[Counsel] Mundorff: She has no training, she’s not an
expert, she’s never performed the job. She did not hire a
sound expert.
[ZHB member] Brown: She testified to that.
[Counsel] Mundorff: If we include all that, put that in the
record, I will not ask the question.
[ZHB Chairman] Guerriere: We are going to let you put it
in the record quickly.
11
[Counsel] Mundorff: By questions or just by statement, Mr.
Chair?
[ZHB Chairman] Guerriere: You want to have something
put on the record.
[Applicants’ counsel] Bower: Have you ever done any
studies on your own, or do you know how to do it, that is
the question and the answer is no; is that correct?
[Mrs. Gowatski]: That’s correct. I have none.
....
[Counsel Mundorff:] Mrs. Gowatski, given the fact that you
have already admitted you have never used a sound meter,
you’re not a sound expert, you have no training in it, you
did not do it in connection with your request for this kennel,
isn’t it fair to conclude that you really don’t know what
sound, level decibel level is going to emanate from your
kennel at this point, you don’t know, do you?
[ZHB Chairman] Guerriere: She’s already testified that she
does not know any of that expertise. If you’re making a
statement for the record, so be it. We have got it recorded.
R.R. at 44a-45a.
The record demonstrates that the ZHB properly restricted Counsel
Mundorff from repeatedly asking Mrs. Gowatski questions she had already answered.
Further, the ZHB permitted counsel to create a record. Accordingly, we discern no
abuse of discretion.
Objectors further claim that the ZHB erred because it prevented
Objectors’ counsel from cross-examining Mrs. Gowatski regarding the soundproofing
mandated in Section 1000-842(D) of the Ordinance. Objectors point to the following
exchange:
[Counsel Mundorff:] Mrs. Gowatski, is it fair to say that
you don’t have any training yourself in how to construct a
12
building with soundproofing materials, do you? In your
former life, did you construct soundproof buildings?
[ZHB Chairman] Guerriere: I think this is getting out of
hand. She appears to say that she is trying as best she can
to minimize soundproofing. And you want to know the
exact definition of soundproofing –
[Counsel] Mundorff: I have moved on.
[ZHB Chairman] Guerriere: - - or minimizing it?
[Counsel] Mundorff: I want to know if sometime in her life
she performed as a contractor.
[ZHB Chairman] Guerriere: I think it’s irrelevant. Move
on.
[Applicant’s Counsel] Bower: She’s indicated that she will
hire people to do this. It’s not like she’s going to build this
building herself brick by brick, block by block. This is –
[ZHB Chairman] Guerriere: Okay Mr. Bower, that’s fine.
Let’s move on.
[Counsel Mundorff:] Do we have a contractor in place at
this point?
[ZHB Chairman] Guerriere: I think that’s irrelevant, too.
[Counsel Mundorff:] Do we have at least a piece of paper,
building specifications on it showing the types of materials
and how this will be built, do you have anything?
[Applicants’ attorney] Bower: Other than her testimony, we
don’t have a piece of paper.
[ZHB Chairman] Guerriere: Wasn’t the earlier testimony
here that we went over the construction of the building?
[ZHB member] Payson: Yes.
[ZHB member] Brown: We need to move on.
13
[ZHB Chairman] Guerriere: Apparently, we can move on
from that. If you want to go back in the record, I think that
will state exactly how it was.
[Counsel] Mundorff: I’m asking about the building
specifications. I’m asking about what contractors use when
they build a building. Is there anything like that for us to
look at at this point? I’m assuming the answer is no, but
that’s my question.
[ZHB Chairman] Guerriere: Do you have plans in place at
this point other than the size and the information that you
gave us before for building construction?
[Mrs. Gowatski]: At this time, no, I don’t sir.
[ZHB Chairman] Guerriere: The answer is no.
[Counsel] Mundorff: Okay.
R.R. at 45a-46a.
The above exchange does not reveal an abuse of discretion by the ZHB.
The ZHB properly ruled that Counsel Mundorff’s line of questioning concerning
whether Mrs. Gowatski had ever worked as a contractor was not relevant to whether
the Petition should be approved. Applicants intended to hire contractors to build the
soundproofed kennel and, thus, Mrs. Gowatski’s knowledge of the specific manner in
which a building may be soundproofed was irrelevant. See R.R. at 11a, 29a. Further,
although cross-examination may not have been as broad as that sought by Counsel
Mundorff, Mrs. Gowatski ultimately answered counsel’s question regarding existing
building plans, and it appears from the record that counsel was satisfied with the
information disclosed.
Objectors also argue that the ZHB erred by failing to consider evidence
pertaining to the neighborhood’s residential character, concerns pertaining to dogs of
14
a vicious propensity and the health, safety and welfare of the adjacent properties.13 In
their brief, Objectors point to objector Edward Franks’ testimony about the adjacent
properties’ residential nature, and the ZHB’s refusal to permit the discussion of
restrictive covenants on adjacent properties which prohibit farming on those
properties and require their use for residential purposes only. Objectors also note that
other neighbors testified about their concerns regarding the negative impact that the
proposed kennel would have on the adjacent properties.
Contrary to Objectors’ assertions, there is nothing in the ZHB’s decision
demonstrating that the ZHB failed to consider that the adjacent properties were
residential in nature or the impact that the proposed kennel might have upon those
properties. In fact, the ZHB acknowledged Objectors’ challenge, stating:
[] A number of area residents expressed concerns regarding
the negative impact that may be created by the proposed
boarding kennel on subject property pertaining to noise, the
quality of life, odors, traffic, the safety of area residents and
property depreciation.
[] The Objectors requested the Petition be denied due to the
[Applicants’] failure to meet the burden of proof for
compliance with Article V, Performance Standards and
Section 1000-842 [of the Ordinance] and the character of
the surrounding neighborhood has changed from
agricultural to residential in nature.
R.R. at 102a (emphasis added). However, despite considering Objectors’ concerns,
the ZHB concluded, as it was permitted to do, that “the proposed Special Exception .
. . will not adversely impact the health, safety and welfare of the residents of the
adjoining and surrounding area.” Id. Thus, Objectors’ argument is without merit.14
13
Objectors also maintain that the trial court erred in its conclusions pertaining to the
protections to be afforded to neighboring residents. However, as previously explained, we are
reviewing the ZHB’s decision, not the decision of the trial court.
14
We also reject Objectors’ argument that the ZHB erred when it prohibited their counsel
“from cross-examining [Mrs.] Gowatski as to the safety protocol which she would use for dogs with
15
Finally, Objectors assert that the ZHB erred by not requiring the
inclusion of soundproofing within Applicants’ land development plan in accordance
with Sections 1000-842(D) and 1000-1103(B)15 of the Ordinance.16 Section 1000-
842 of the Ordinance provides express standards required for a special exception.
Section 1000-1103(B) of the Ordinance requires special exception applicants to
submit a land development plan as defined by Article VIII of the Ordinance.
Notably, Objectors do not cite to Section 1000-800 of the Ordinance, which is
directly relevant to their issue. Section 1000-800 of the Ordinance provides:
A. All applications for a use by special exception shall
demonstrate compliance with the applicable express
standards and criteria of this Article and the applicable
minimum lot area, maximum lot coverage, maximum
building height, setback requirements and bufferyard
requirements of the zoning district in which the use is
proposed.
vicious propensities given the eight children who live in close proximity to the proposed kennel.”
Objectors’ Br. at 33. The transcript reflects that, during cross-examination, Counsel Mundorff’s
inquiry was answered to her satisfaction, whereby she stated, “[t]hat answers the question.” R.R. at
47a.
15
Section 1000-1103(B) of the Ordinance states:
Applicants for a use by special exception shall submit a land
development plan, as defined by Article VIII of this Chapter, and a
fee as established from time to time by resolution of the Board of
County Commissioners. The land development plan shall be
accompanied by a written application in a form prescribed by the
County, including an indication of compliance with the express
standards and criteria specified in Article VIII of this Chapter.
R.R. at 135a.
16
Applicants assert that Objectors did not raise this issue in their land use appeal, and thus it
is waived. We disagree. Contrary to Applicants’ contention, Objectors’ “Notice of Land Use
Appeal” lists as one of the Board’s alleged errors, “[t]he [ZHB] erred in not requiring [Applicants]
to provide a building plan . . . with regard to the requirements set forth at Section 1000-842(C) and
(D) of the [Ordinance].” R.R. at 96a.
16
B. All applications for use by special exception approval
shall contain the following:
1. A land development plan, as defined by this Chapter,
and where renovation or modification of an existing
building is immediately contemplated, construction plans
showing the scope, nature and extent of said renovation
or modifications.
2. An application fee in an amount set by resolution of
the Board of County Commissioners.
Ordinance § 1000-800 (emphasis added).
There is no dispute that Applicants’ land development plan does not
contain notations regarding soundproofing. However, as the trial court opined:
[T]he [ZHB’s] Resolution in this matter includes
[Applicants’] assurances that they would comply with [the]
provisions of the Ordinance by soundproofing the building
and requiring all clients to equip their dogs with correction
collars. Considering that no ‘situations as are expressly
provided for and enunciated by the terms of the ordinance,’
Timber Place Assoc[s. v. Plymouth Twp. Zoning Hearing
Bd.], 430 A.2d [403,] 405 [(Pa. Cmwlth. 1981)], require the
inclusion of soundproofing or fencing within the land
development plan and given: (1) [Applicants’] assurances,
(2) the possibility for periodic inspections, (3) the ability of
the [O]bjectors to assert presently[-]existing violations of
the Ordinance, and (4) [Applicants’] need for yearly
reapproval, we find no abuse of discretion by the [ZHB].
R.R. at 116a-117a (footnote omitted; bold emphasis added). We agree with the trial
court’s analysis. Accordingly, we discern no error.
For all of the above reasons, the trial court’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward T. Franks and Theresa :
S. Franks, husband and wife, :
Appellants :
:
v. :
:
Fayette County Zoning Hearing :
Board :
:
v. :
:
Shawn Gowatski and Billi : No. 1638 C.D. 2014
Gowatski, his wife :
ORDER
AND NOW, this 12th day of May, 2016, the Fayette County Common
Pleas Court’s August 11, 2014 order is affirmed.
___________________________
ANNE E. COVEY, Judge