Maffeo v. Windber Borough Zoning Hearing Board, 110819 PACCA, 1600 C.D. 2018

Docket Nº:1600 C.D. 2018
Opinion Judge:P. KEVIN BROBSON, JUDGE
Party Name:Bobbi Jo Maffeo, Appellant v. Windber Borough Zoning Hearing Board
Judge Panel:BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE ROBERT SIMPSON, Senior Judge
Case Date:November 08, 2019
Court:Commonwealth Court of Pennsylvania
 
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Bobbi Jo Maffeo, Appellant

v.

Windber Borough Zoning Hearing Board

No. 1600 C.D. 2018

Commonwealth Court of Pennsylvania

November 8, 2019

OPINION NOT REPORTED

Submitted: October 3, 2019

BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE ROBERT SIMPSON, Senior Judge

MEMORANDUM OPINION

P. KEVIN BROBSON, JUDGE

Bobbi Jo Maffeo (Appellant) appeals from an order of the Court of Common Pleas of Somerset County (common pleas), dated October 31, 2018. Common pleas affirmed the decision of the Windber Borough Zoning Hearing Board (Board), which required Appellant to remove livestock from her property located in a residential zoning district. For the reasons that follow, we affirm.

Appellant owns the two-acre property located at 769 Railroad Street (property) in the Borough of Windber (Borough), Somerset County, Pennsylvania. On January 25, 2018, Appellant received a letter from the Borough's solicitor (cease and desist letter), which provided, in relevant part: The Borough Manager's office has received numerous complaints . . . regarding various farm animals being housed at your residence.

Please be advised that the keeping of farm animals such as, but not limited to, goats, donkeys, pigs, chickens or ducks is in direct violation of the Borough of Windber Zoning Ordinance, 079-4[, ] as amended [(Ordinance)]. Specifically, your residence is located in a Section 903 General Residential District (R-2 [district]). The keeping of these types of animals, whether they be full[-]sized or miniature[, ] is a [nonpermitted] use in a[n] R-2 district. The type of animals that you are keeping . . . are [sic] only permitted to be kept in a Section 910 Conservation District [(conservation district)].

. . . You must remove all [nonpermitted] animals on [the] property within 20 days of receipt of this notice.

(Original Record (O.R.), Item No. 7, Ex. 1.) The record reveals and Appellant conceded before the Board that the majority of the property is located within the R-2 district, with a small corner of the property located in the conservation district. Section 903 of the Ordinance, governing the R-2 district, allows typical residential-area uses such as homes, schools, open space, and limited commercial services. It does not expressly permit the keeping of livestock, either by right or as a conditional use. Section 910 of the Ordinance, governing the conservation district, allows "agriculture," which, pursuant to the definition in Section 202 of the Ordinance, "shall not include the feeding or sheltering of animals or poultry in penned enclosures within two hundred (200) feet of any residential lot."

Appellant appealed the cease and desist letter to the Board, which held a hearing on April 12, 2018. Appellant testified on her own behalf at the hearing, admitting that she keeps approximately 50 animals-including goats, donkeys, and chickens-on the property. She described her attempts to prevent nuisances, including by installing fences and gates and soliciting hired help to clean up after the animals on the property. She also stated that she has promptly paid all fines in connection with citations she has received for nuisances. In support of her contention that she adequately cares for the animals, Appellant introduced a letter, dated February 2, 2018, from Leann Stewart, an officer of the Somerset County Humane Society (Stewart letter). The Chair of the Board gave an oral summary of the letter's findings-that "basically the animals are well kept"-for the benefit of those in attendance at the hearing. (Supplemental Reproduced Record (Suppl. R.R.) at 67a.)

Several Borough residents also testified at the hearing. Some described previous visits to the property and their observations that the animals and property were well cared for. Mark Horner, who lives on the same street as Appellant within the Borough, testified that he keeps several chickens, ducks, and a rooster in a...

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