In Re: Appeal of J. and D. Van Tiggelen from the Decision Dated April 22, 2015, of the Jefferson Twp. ZHB ~ Appeal of: R.R. Sanders ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Joan and Douglass :
Van Tiggelen from the Decision :
Dated April 22, 2015, of the Jefferson :
Township Zoning Hearing Board :
:
: No. 1350 C.D. 2016
Appeal of: Robert R. Sanders, Pamela : Argued: March 6, 2017
Sanders, Corale Bortz, David Bortz, :
Deborah Lee Pickett, VMD, James :
Russo, Darin H. Hein, Brenda L. Hein :
and Betsy Adams :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI FILED: March 29, 2017
Robert R. and Pamela Sanders, Corale and David Bortz, Deborah Lee
Pickett, VMD, James Russo, Darin H. and Brenda L. Hein, and Betsy Adams
(Objectors) appeal from an order of the Court of Common Pleas of Berks County
(trial court) reversing the decision of the Jefferson Township Zoning Hearing
Board (Board) and reinstating the issuance of a zoning permit for a veterinary
clinic home occupation to Joan and Douglass Van Tiggelen (Van Tiggelens). For
the reasons that follow, we affirm the trial court.
I.
The Van Tiggelens own property at 173 Koenig Road, Bernville,
Pennsylvania (Property), a 33-acre parcel located within the R-2 Medium Density
Residential District (R-2 District) in Jefferson Township (Township) on which
their home is located. Joan Van Tiggelen is a veterinarian and desires to operate a
part-time veterinary clinic at the Property as a home occupation. The Jefferson
Township Zoning Ordinance (Ordinance) defines “Home Occupation” as:
A use customarily conducted entirely within a
dwelling unit and carried on by the inhabitants
thereof, which is clearly incidental and secondary to the
use of the dwellings and which does not change the
character thereof or have any exterior evidence of such
secondary use other than a small name plate, and in
connection therewith there is not involved the keeping of
a stock in trade for sale to the general public.
(Reproduced Record (R.R.) at 239a.) (Emphasis added.) Home occupations
located on the same lot with the permitted principal use are permitted accessory
uses1 in the Township’s R-2 District.2
1
The Ordinance defines an accessory use as:
A use that (1) is subordinate to and serves a principal building or
principal use; (2) is subordinated in area, extent, or purpose to the
principal building or principal use served; (3) is located on the
same zoning lot as the principal building or use served; (4) is not
used for dwelling purposes nor normally occupied by personnel
associated with any use; and (5) is not attached to the principal
building by covered passageway, has a wall more than 3 feet high,
and shares no wall in common with the principal building.
(Footnote continued on next page…)
2
The Van Tiggelens submitted a written plan to the Township’s Zoning
Officer proposing to construct a separate building on the Property to house both the
veterinary clinic and residential garages. On March 1, 2008, Gary L. Bashore, the
Township’s Zoning Officer at the time, issued a letter to the Van Tiggelens stating
that he had reviewed their proposed plan and, in his opinion, it met the
requirements of Section 502 of the Ordinance relating to Home Occupations.3
Apparently, for reasons unexplained, this plan lay dormant.
(continued…)
(R.R. at 250a.)
2
See Section 403.2 of the Ordinance (R.R. at 260a.) Section 403.2 specifies that home
occupations are permitted accessory uses in the district “pursuant to Section 502,” which
contains the Ordinance’s Home Occupation Regulations. (Id.)
3
Section 502 of the Ordinance states:
All dwelling units and accessory structures with direct access to a
public street may be used for the practice of a home occupations
[sic], provided such occupation is clearly incidental or secondary
to the use of the property as a residence, and further provided that
such use of the dwelling or accessory structure does not change the
character thereof or have any exterior evidence of such secondary
use other than a small nameplate as provided in this Ordinance.
(R.R. at 292a.) Section 502.1 of the Ordinance provides the standards for home occupations,
stating:
Home occupations shall be limited to the employment on the
premises of not more than 2 paid or unpaid assistants or employees
at any one time.
In addition to the off-street parking spaces required for the
residence units, off-street parking spaces must be provided as
required in Section 507.1.a.
(Footnote continued on next page…)
3
(continued…)
Home occupations shall not occupy more than 25% of the total
floor area of the dwelling unit.
Home occupations shall be subject to the following limitations:
a. No emission of unpleasant gases or other odorous matter
shall be permitted;
b. No emission of noxious, toxic, or corrosive gases or
fumes injurious to persons, property, or vegetation shall be
permitted;
c. No glare and heat from any home occupations shall be
permitted;
d. No discharge is permitted into a reservoir, sewage or
storm disposal system, stream, open body of water, or into the
ground, of any materials in such a way or of such nature or
temperature as could contaminate any water supply, or damage or
be detrimental to any sewage system or any sewage treatment
process, or otherwise could cause the emission of dangerous
objectionable elements;
e. No vibration perceptible beyond the dwelling unit or
building in which the home occupation is conducted shall be
permitted;
f. No noise shall be audible beyond the dwelling unit or
building in which the home occupation is conducted whichever
shall be the smaller, which exceeds the average intensity of street
traffic at the front lot line;
g. No emission of any smoke shall be permitted;
h. Electric or electronic devices shall be shielded in such
manner as not to interfere with radio or television reception or
transmission of any kind.
(Footnote continued on next page…)
4
Over four years later, on November 19, 2012, the plan apparently was
reactivated. This time, the Township’s new Zoning Officer, Robin R. Royer
(Royer), by letter, informed the Van Tiggelens that according to Section 403.1 of
the Ordinance, a veterinary office is not a permitted use in an R-2 District and if
they desired to continue with the same plan, the Van Tiggelens must obtain a
variance from the Board to operate a veterinary clinic on the Property. In a
subsequent letter, Royer further explained that a variance was needed because the
proposed veterinary clinic would be housed in an accessory structure, it was not
considered a home occupation, and having a clinic on-site would alter the character
of the principal use of the Property as residential.
The Van Tiggelens then submitted a new proposal seeking both a
building and zoning permit to construct an addition to their house from which to
operate a veterinary clinic home occupation rather than in an accessory structure.
On December 10, 2014, the Township’s new Zoning Officer, Daniel E. Levengood
(Zoning Officer Levengood), issued a building and zoning permit to the Van
Tiggelens to construct a 28-foot by 45-foot addition to their residence for use of
the Property as a veterinary clinic home occupation. Issuance of the zoning permit
was conditioned upon 14 additional restrictions.4
(continued…)
(R.R. at 292a-293a.)
4
Those restrictions were as follows:
1. There will be one full-time employee who shall be a resident of
the dwelling unit at 173 Koenig Road[.]
(Footnote continued on next page…)
5
(continued…)
2. There will be one part-time assistant who is not a resident of the
dwelling unit at 173 Koenig Road.
3. The hours of operation will be Monday through Thursday from
1:00 p.m. to 6 p.m.
4. Surgeries will be scheduled every other Tuesday from 9:00 a.m.
to 6:00 p.m.
5. Appointments will be scheduled from 2:00 p.m. to 5:00 p.m. at
30-minute intervals.
6. The home occupation is permitted to have a sign as long as it
does not exceed 2 square feet in size and is located in accordance
with § 506.a.9 of the [] Ordinance.
7. Deliveries will occur only when orders are placed and generally
performed by UPS or FedEx weekly. Hill [sic] Pet food will be
delivered once a month.
8. All medical wastes are removed from the premises by a medical
waste service.
9. Emergencies are referred to Animal Emergency Clinic in
Shillington, PA.
10. Allied Veterinary Cremation comes every Tuesday to see if
any cremations are required. Cremations will [not be] done on the
site.
11. The driveway will be equipped with non-glare residential
lighting.
12. No animals will be spending the evening at the clinic.
13. The veterinarian clinic will not offer kennel services on the
property.
(Footnote continued on next page…)
6
II.
Objectors, who are property owners bordering or in close proximity to
the Property, appealed the issuance of the zoning permit to the Board, claiming a
veterinary clinic does not meet the Ordinance’s definition of a home occupation
because it is not a use customarily conducted entirely within a dwelling unit.
Objectors also claimed that the 14 additional restrictions placed on the permit were
invalid and could not properly be enforced, requiring the permit to be voided.
They further argued that veterinary clinics are allowed in the Township’s
Commercial District and as an accessory use in the Agriculture Preservation
District, with much stricter requirements than those listed for home occupations.
Before the Board, Zoning Officer Levengood testified that the
Ordinance was vague with respect to home occupations and he referred to
ordinances from other municipalities as well as his prior experience for guidance to
determine what is customarily considered a home occupation. He noted that those
ordinances specifically allow professional offices as home occupations, and that
those ordinances define a professional office as including a doctor, surgeon,
dentist, licensed professional and people offering similar medical care. In making
(continued…)
14. Failure to abide by these conditions as well as those listed in §
502 of the [] Ordinance will result in the Zoning Permit being
immediately revoked.
(R.R. at 31a.)
7
his decision regarding the Van Tiggelens’ zoning permit, he believed that a
doctor’s office would clearly be allowed as a home occupation under the
Ordinance and he could not differentiate between a doctor’s office and the
proposed veterinary clinic. Zoning Officer Levengood testified that he has
approved other professional offices as home occupations in residential areas, and
he knows of a dog grooming business permitted to operate as a home occupation in
a residential district within Berks County. Moreover, he considers a professional
office, including a veterinary clinic, to be customary in this area.
Michael Comalli, VMD (Dr. Comalli) has been a practicing
veterinarian since 1986 and was deemed an expert in the practice of veterinary
medicine. Dr. Comalli testified that at his prior home, he received a variance to
operate a veterinary clinic as a home occupation in a residential district in Marion
Township. At his present home, he also obtained a variance to operate a veterinary
clinic as a home occupation prior to the property being rezoned commercial. Dr.
Comalli testified that there are “lots” of veterinarians who have home occupations
and he provided three specific examples of friends of his who are veterinarians
practicing out of their homes.
In opposition, one of the Objectors, Lee Pickett, VMD (Dr. Pickett), a
veterinarian, was qualified as an expert in the practice of veterinary medicine and
testified as to the typical care and general elements associated with small
veterinary practices. However, Dr. Pickett did not address the issue of whether
veterinary clinics are customarily conducted in residential dwellings, nor did she
8
specify if her experience with small veterinary practices was similar to that of a
part-time solo practitioner such as Dr. Van Tiggelen.
After considering all of the elements generally associated with a
veterinary clinic as well as the evidence presented at the hearing, the Board
determined there were elements of the proposed veterinary clinic use that were not
incidental or secondary to the principal use as a single-family detached dwelling,
as required by both the Ordinance’s definition of home occupation and its general
regulations regarding home occupations. The Board also concluded there were
elements of the proposed veterinary clinic use that did not meet the definition of a
home occupation because they were not “customarily conducted entirely within a
dwelling unit by the inhabitants thereof. . . .” (Section 201 of the Ordinance, R.R.
at 239a.) The Board found that the proposed plan also failed to meet the definition
of a home occupation because there were elements that would change the character
of the use, there would be evidence of the secondary use visible on the exterior of
the home, and the proposed sale of prescription products and other pet care goods
would constitute “the keeping of a stock in trade for sale to the general public.”
(Id.) Because the proposed veterinary clinic did not meet the definition of a home
occupation or the general provisions of the Ordinance’s home occupation
regulations, the Board granted Objectors’ appeal and revoked the zoning permit.5
5
Objectors did not challenge the issuance of the building permit and it is not at issue in
this appeal.
9
III.
The Van Tiggelens appealed to the trial court which reversed, finding
that the Board abused its discretion because there was not substantial evidence to
support the Board’s finding that a veterinary clinic was not customarily a home
occupation. Based on Zoning Officer Levengood’s testimony that other
professionals such as dentists and physicians have offices in their homes and
operate similar equipment to that of veterinarians, and given the lack of any
countervailing testimony, the trial court held that the only substantial evidence
proffered was that the veterinary clinic does qualify as a home occupation. It also
discounted the Board’s conclusion that Dr. Van Tiggelen would keep stock in trade
for sale to the general public as the only stock for sale would be prescriptions and
prescription pet food available for her patients. It also noted that the Board erred
in finding that the issuance of the permit would harm the health, welfare and safety
of the community because Objectors failed to produce any evidence that such harm
would occur. In addition, the trial court explained the fact that the Ordinance made
specific provisions for veterinary offices within its Agricultural Preservation Zone
was inapposite as the issue was whether the proposed veterinary clinic met the
requirements for a home occupation. For these reasons, the trial court granted the
Van Tiggelens’ appeal and ordered that the zoning permit be reinstated. This
appeal followed.6
6
Our review in a zoning case where the trial court takes no additional evidence is limited
to determining whether the Board committed an error of law or an abuse of discretion. Agnew v.
Bushkill Township Zoning Hearing Board, 837 A.2d 634, 636 n.4 (Pa. Cmwlth. 2003).
10
IV.
Objectors argue that the trial court abused its discretion because the
Board’s decision was supported by substantial evidence. Citing to In re Rural
Route Neighbors, 960 A.2d 856 (Pa. Cmwlth. 2008) and Taliaferro v. Darby
Township Zoning Hearing Board, 873 A.2d 807 (Pa. Cmwlth. 2005), Objectors
argue that the trial court was bound by the Board’s determinations of witness
credibility and evidentiary weight, and the trial court erred in substituting its
interpretation of the evidence for that of the Board. However, in a zoning appeal,
where the trial court takes no additional evidence, we are not reviewing the trial
court decision but, like the trial court, we are limited to determining whether the
Board committed an error of law or an abuse of discretion. Agnew v. Bushkill
Township Zoning Hearing Board, 837 A.2d 634, 636 n.4 (Pa. Cmwlth. 2003).
The definition of home occupation in the Ordinance states, in
pertinent part, that the use must be “customarily conducted entirely within a
dwelling unit and carried on by the inhabitants thereof, which is clearly incidental
and secondary to the use of the dwellings and which does not change the character
thereof. . . .” (Section 201 of the Ordinance, R.R. at 239a). Similarly, Section 502
contains the Ordinance’s home occupation regulations and states that dwelling
units “may be used for the practice of a home occupation[], provided such
occupation is clearly incidental or secondary to the use of the property as a
residence, and further provided that such use of the dwelling or accessory structure
does not change the character thereof. . . .” (R.R. at 292a) (emphasis added).
11
This language is typical in local zoning ordinances and there is a long
line of cases regarding what occupations are customarily conducted in a home,
clearly incidental to residential use or customarily associated with residential
dwellings. See, e.g., Allegheny West Civic Council, Inc. v. Zoning Board of
Adjustment, 716 A.2d 600 (Pa. 1998); Agnew; Platts v. Zoning Hearing Board of
Borough of Bradford Woods, 654 A.2d 149 (Pa. Cmwlth. 1995). These cases
recognize that the standard is necessarily a flexible one that depends upon both the
language of the ordinance and the specific facts of the case. In his seminal treatise
on Pennsylvania zoning law, Ryan notes that accessory use questions are intensely
fact dependent determinations that examine whether a particular subordinate or
secondary use is appropriately associated with the principal use in the specific
factual situation involved. Robert S. Ryan, Pennsylvania Zoning Law and
Practice, § 4.3 (2004); see also Hess v. Warwick Township Zoning Hearing Board,
977 A.2d 1216, 1224 (Pa. Cmwlth. 2009). Moreover, our Supreme Court has held
“that zoning boards and courts may take notice of what business occupations are
customarily conducted in residential dwellings based on general experience and
understanding.” Allegheny, 716 A.2d at 603-04.
The only evidence offered before the Board as to whether the use was
customary in a residential district was that of Zoning Officer Levengood who
testified that a veterinary clinic was a customary home occupation, and Dr.
Comalli who testified that he operates his veterinary clinic as a home occupation
and knows other veterinarians who conduct their practices from their homes both
in general and in this particular area. Objectors failed to present any evidence to
rebut that testimony. As previously mentioned, Objector Dr. Pickett testified as to
12
the typical care and general elements associated with small veterinary practices,
but did not address whether veterinary clinics were home occupations. Moreover,
the standards for home occupations set forth in Section 502.1, by allowing up to
two part-time employees, requiring off-street parking for the use, and requiring
detailed noise and environmental emission requirements supports the conclusion
that a home occupation need not be one in which only the home’s occupants
conduct the business with only occasional customers. Because the record contains
no evidence to support the Board’s conclusion that the proposed veterinary clinic is
not a use customarily conducted within a dwelling unit as required by the
Ordinance, the Board abused its discretion in so finding. See Glenside Center, Inc.
v. Abington Township Zoning Hearing Board, 973 A.2d 10, 15 n.11 (Pa. Cmwlth.
2009) (“[a]n abuse of discretion is found where the findings of the Board are not
supported by substantial evidence.”).7
7
Contrary to Objectors’ assertion, the trial court did not err in finding it is of no
consequence that a veterinary clinic is a permitted use within the Township’s Agricultural
Preservation Zone. As the trial court correctly noted, what is at issue is whether the veterinary
clinic proposed here meets the Ordinance’s definition of and regulations pertaining to home
occupations, not whether the proposed use is permitted within other districts. Just because a
certain profession is permitted as of right within one particular zoning district does not preclude
it from qualifying as a home occupation as well. For example, in an Agricultural Preservation
Zone, a veterinary clinic that is allowed as of right could include the treatment of large animals
which, in all likelihood, would not be permitted as a home occupation under the standards set
forth for home occupations in the Ordinance.
Also, while this issue was not specifically raised in Objectors’ brief on appeal, we note
our agreement with the trial court that there is not substantial evidence to support the Board’s
finding that Dr. Van Tiggelen’s sale of prescription medications and prescription pet food would
constitute the keeping of a stock in trade for sale to the general public. Dr. Van Tiggelen
testified that she does not want to be a retail store open to the public. The only “stock for sale”
are products specifically prescribed for her patients and, therefore, members of the general public
could not walk in off the street to purchase goods for their pets.
13
Accordingly, we affirm the order of the trial court.
DAN PELLEGRINI, Senior Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Joan and Douglass :
Van Tiggelen from the Decision :
Dated April 22, 2015, of the Jefferson :
Township Zoning Hearing Board :
:
: No. 1350 C.D. 2016
Appeal of: Robert R. Sanders, Pamela :
Sanders, Corale Bortz, David Bortz, :
Deborah Lee Pickett, VMD, James :
Russo, Darin H. Hein, Brenda L. Hein :
and Betsy Adams :
ORDER
AND NOW, this 29th day of March, 2017, the order of the Court of
Common Pleas of Berks County in the above-captioned matter is hereby affirmed.
DAN PELLEGRINI, Senior Judge