Butler Twp. v. B.J. Glowacki-Wagner ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Butler Township :
:
v. : No. 1310 C.D. 2021
: Submitted: February 3, 2023
Bobbi Jo Glowacki-Wagner, :
Appellant :
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: August 24, 2023
Bobbi Jo Glowacki-Wagner (Appellant) appeals from an order of the
Court of Common Pleas of Schuylkill County (trial court), entered August 6, 2021,
which granted Butler Township’s (Township) petition for preliminary injunction and
ordered Appellant to remove all chickens from her property. Upon review, we
affirm.
I. BACKGROUND
The facts in this case are not in dispute. Appellant owns property
located at 192 Lavelle Road, Ashland, Pennsylvania (Property). The Property is
zoned as an “R-3” district, which is described by the Butler Township zoning
ordinance as “High Density Residential.” See Butler Twp., Pa. Zoning Ordinance, §
405.1, (1997).
On March 29, 2021, the Township’s zoning officer sent an enforcement
notice to Appellant, informing her that she was in violation of Section 405 of the
ordinance for keeping chickens on her property.1, 2 The enforcement notice directed
Appellant to remove the chickens from the property by May 15, 2021. The notice
also advised Appellant that she could appeal the notice within 30 days and that
failure to appeal would be conclusive. Appellant neither removed the chickens as
directed, nor did she appeal the enforcement notice to the Butler Township Zoning
Hearing Board (Board).
On July 21, 2021, the Township filed a petition for preliminary
injunction, seeking an order from the trial court directing Appellant to remove the
chickens from her property. On August 5, 2021, the trial court held a hearing on the
matter, wherein the parties presented evidence and argument in support of their
positions. By order dated August 6, 2021, the trial court granted the preliminary
1
A second violation detailed in the enforcement notice, related to fencing on Appellant’s
property, is not pertinent to this appeal.
2
Section 405 provides:
High Density Residential (R-3)
405.1 Permitted Uses:
(a) single family attached dwellings; (b) single family semi-detached dwellings;
(c) two family detached dwellings; (d) two-family semi-detached dwellings;
and (e) public uses, structures or buildings owned or operated by the
Municipality, or any Municipal Authority organized by the Municipality; and
(f) sound and reasonable forestry activities and practices.
405.2 Permitted Accessory Uses – Located on the same lot with the permitted
principal use:
(a) private garages or private parking areas; (b) signs pursuant to Section 505;
(c) home occupations pursuant to Section 502; and (d) customary accessory
uses, structures, or buildings, provided such are clearly incidental to the
principal use.
405.3 Use Permitted by Special Exception:
(a) Rooming or boarding houses; (b) Mult[i]-family dwelling units pursuant to
Section 504; and (c) accessory uses, structures, or buildings not located on the
same lot with the permitted principal use.
Butler Twp., Pa. Zoning Ordinance, §§ 405.1, 405.2, 405.3 (1997). Pursuant to Section 201.4,
agriculture is defined as the cultivation of soil and the raising and harvesting of the products of the
soil, including but not limited to nursery, horticulture, forestry, and animal husbandry. Id. § 201.4.
2
injunction. The trial court reasoned that because Appellant failed to appeal the
enforcement notice, Appellant had admitted the violation. See Trial Ct. Op., 8/6/21,
at 2 (unpaginated) (relying on Woll v. Monaghan Twp., 948 A.2d 933 (Pa. Cmwlth.
2008)). Appellant timely appealed to this Court.3
II. ISSUE
Appellant asserts that the Township was not entitled to injunctive relief,
despite her failure to appeal the enforcement notice, because the zoning ordinance
does not prohibit her conduct. See Appellant’s Br. at 10-14. The Township rejects
this assertion and contends that Appellant’s failure to appeal the enforcement notice
is dispositive. See Twp.’s Br. at 3-9.4
III. DISCUSSION5
Appellant asserts that the trial court erred in granting the Township
injunctive relief. See Appellant’s Br. at 10-14. According to Appellant, the
Township may not premise its petition for injunctive relief merely upon her failure
to appeal the enforcement notice. See generally id. (challenging the conclusive
nature of her failure to appeal as an improper application of res judicata). Rather,
3
On January 3, 2022, Appellant filed an Application for Stay Pending Appeal of the trial
court’s order. This Court denied Appellant’s Application for Stay. Order, 3/2/22.
4
Appellant also purports to challenge the ban on animal husbandry as unconstitutionally
vague. Appellant’s Br. at 14-15. As noted by the Township, Appellant did not submit this
challenge to the Board in the first instance. See Twp.’s Br. at 11-12. Accordingly, we deem this
issue waived. See Dore v. Zoning Hr’g Bd. of W. Norriton Twp., 587 A.2d 367 (Pa. Cmwlth.
1991); Section 916.1 of the Pennsylvania Municipalities Planning Code (MPC), as amended,
added by the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10916.1,
5
“[W]e recognize that on an appeal from the grant or denial of a preliminary injunction,
we do not inquire into the merits of the controversy, but only examine the record to determine if
there were any apparently reasonable grounds for the action of the court below. Only if it is plain
that no grounds exist to support the decree or that the rule of law relied upon was palpably
erroneous or misapplied will we interfere with the decision of the [trial court].” See City of
Reading v. Firetree, Ltd., 984 A.2d 16, 22 (Pa. Cmwlth. 2009).
3
according to Appellant, the trial court must engage in an independent analysis of her
conduct to ascertain whether it violates the zoning ordinance. See id. at 11-12.
Further, noting that a landowner should be permitted the broadest use of her
property, Appellant suggests that she did not violate the zoning ordinance as stated
in the enforcement notice. Id. at 10-11 (citing Sabatini v. Zoning Hr’g Bd. of Fayette
Cnty., 230 A.3d 514 (Pa. Cmwlth. 2020)).
The relevant law is settled. “A landowner’s failure to appeal the notice
of violation results in a final adjudication that the landowner violated the zoning
ordinance.” Woll, 948 A.2d at 937. “If the landowner fails to appeal, [s]he may not
later deny that there was a violation.” Id. Further, absent an appeal or corrective
conduct, a municipality is entitled to the grant of a preliminary injunction to restrain
violations of its zoning ordinance.6 See Section 617 of the MPC, 53 P.S. § 10617.
To obtain an injunction, the municipality need only show that there was a “violation
of some specific provision of the zoning ordinance.” Twp. of Little Britain v.
Lancaster Cnty. Turf Prods., Inc., 604 A.2d 1225, 1228 (Pa. Cmwlth. 1992); see
also Twp. of Middle Smithfield v. Kessler, 882 A.2d 17 (Pa. Cmwlth. 2005) (holding
that a township was entitled to an injunction prohibiting the continued operation of
a gas station without an occupancy permit in violation of the township’s zoning
ordinance).
Here, Appellant received an enforcement notice advising her that she
was in violation of the zoning ordinance. Pet. for Prelim. Inj., 7/21/21, Ex. C
(Enforcement Notice, 3/29/21). As set forth in the notice, the zoning officer
determined that by keeping chickens on her property, Appellant was engaged in
agricultural conduct prohibited in the R-3 zoning district. Id. Appellant did not
6
A municipality may also initiate an action for sanctions. See Section 616.1(c)(6) of the
MPC, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10616.1(c)(6).
4
appeal the notice as advised, nor did she remove the chickens from her property. See
Notes of Testimony (N.T.) Hr’g, 8/5/21, at 24-25. Her failure to appeal is conclusive
evidence that she violated the zoning ordinance. See Woll. Further, her failure to
take corrective action entitles the Township to injunctive relief. See Twp. of Little
Britain; Smithfield.7
Accordingly, we affirm the trial court’s order.
LORI A. DUMAS, Judge
7
We note that Appellant’s reliance on Sabatini is misplaced. In that case, a landowner
maintained that chickens kept on his property were pets and denied that he was engaged in
commercial agriculture. Sabatini, 20 A.3d at 516. The county officer issued a violation notice,
and the landowner appealed to the county zoning hearing board. Id. Following a hearing, the
board upheld the notice, and the common pleas court affirmed the board. Id. at 517-18. Upon
further appeal and analysis of the relevant provisions, this Court agreed with the landowner and
held that he was not engaged in agriculture as defined by the zoning ordinance and, therefore,
could keep the chickens on his property. Id. at 519-23. Our interpretation of the zoning ordinance
in Sabatini is not relevant here because Appellant’s failure to appeal to the Board in the first
instance is dispositive and precludes a substantive analysis. Nevertheless, we will note further that
the relevant provisions in Sabatini prohibited commercial agriculture, see id. at 521, but there is
no apparent commercial element to the Butler Township prohibition of agriculture in its R-3
zoning district.
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Butler Township :
:
v. : No. 1310 C.D. 2021
:
Bobbi Jo Glowacki-Wagner, :
Appellant :
ORDER
AND NOW, this 24th day of August, 2023, the order of the Court of
Common Pleas of Schuylkill County, entered August 6, 2021, is AFFIRMED.
LORI A. DUMAS, Judge