NEWTOWN TOWNSHIP

ZONING HEARING BOARD

MINUTES OF THE MEETING OF October 4, 2012

The Newtown Township Zoning Hearing Board met on Thursday, October 4, 2012 in the Newtown Township Building. In attendance and voting were: Chairman Karen Doorley, Vice Chairman Brandon Wind, Secretary Mario Lionetti and members Timothy Potero and Michael Iapalucci. Also in attendance were: James J. Auchinleck, Jr., Esq., Solicitor, Martin Vogt, Code Enforcement Officer and Justine Gregor, Stenographer.

Call to Order: Mrs. Doorley called the meeting to order at 7:34 PM.

The agenda was reviewed:

Continued Application of David and Geraldine Platt, 761 Newtown Yardley Road

Continued Application of 15 Swamp Road LTD (Meglio’s), 15 Swamp Road

Continued Application of S&H Security, LLC, 74 Richboro Road

Continued Application of Frank Agabiti, 100 Brandywine Blvd

Application of Jodi Specter, 373 Washington Crossing Road

Continued Application of David and Geraldine Platt, 761 Newtown Yardley Road

Mr. Auchinleck informed the Board that Attorney Don Marshall has requested that this application be continued to the December meeting.

Mr. Wind moved to continue the application of David and Geraldine Platt to December 6, 2012. Mrs. Doorley seconded and the motion passed 5-0.

Continued Application of Frank Agabiti, 100 Brandywine Blvd

Mr. Auchinleck informed the Board that this application has been withdrawn.

Continued Application of 15 Swamp Road LTD (Meglio’s), 15 Swamp Road

Mr. Auchinleck informed the Board that Attorney Ed Murphy has requested that this application be continued to November 1, 2012.

Mr. Lionetti moved to continue the application of 15 Swamp Road to November 1, 2012. Mrs. Doorley seconded and the motion passed 5-0.

Continued Application of S&H Security, LLC, 74 Richboro Road

Mr. Auchinleck informed the Board that Mr. Murphy has requested that this application be continued to the November meeting.

Mr. Potero moved to continue the application of S&H Security, LLC to November 1, 2012. Mr. Wind seconded and the motion passed 5-0.

Application of Jodi Specter, 373 Washington Crossing Road

Mr. Lionetti read into the record the application of Jodi Specter, owner, appealing the action of the zoning officer pertaining to a violation notice for the keeping of pot-bellied pigs and chickens on a property of 0.48 acres where 3 acres is required and in the alternative requesting variances from sections 404A and 803 (A-1)(3)(b)(1) of the Joint Municipal Zoning Ordinance of 2007 to permit keeping 2 pot belly pigs and 6 chickens on 0.48 acres where 3 acres is required. The subject property is 373 Washington Crossing Road, in the R-1 Residential Zoning District, being known as tax parcel number 29-3-63-1.

Mrs. Doorley asked if anyone wished party status in this application.

Joe Keats, 373 Washington Crossing Road, husband of the applicant, said that he would like to speak in support of the application.

Mr. Auchinleck explained to those residents in attendance that if they wish to be a party to the application they would have the right to cross-examine the applicant and any of her witnesses, present evidence and witnesses, and make any statement concerning the application. Should they disagree with the decision of the Zoning Hearing Board, party status would give them the right to appeal the decision. Anyone present not wishing party status would be allowed to make statements for or against the application after the hearing and before a decision is rendered.

Mrs. Doorley asked again if anyone wished party status. There was no response.

Attorney Scott McNair represented the applicant.

Jodi Specter and Susan Magidson were sworn in.

Mr. McNair explained that the applicant lives on a 0.48 acre lot in the R-1 zoning district, where minimum required lot size is 60,000 square feet. This is a non-conforming lot with a non-conforming house. Pigs are permitted on conforming lots in the R-1 district, but chickens require 3 acres. The applicant has two pot-bellied pigs and six chickens. There had been a rooster on the property but it has been relocated.

Mr. McNair explained that Ms. Specter received a notice of violation citing Sections 803(A)(4) and (B)(1). The applicant is challenging the action of the Zoning Officer because these are pets, which are permitted, and are not livestock and poultry. Section 803(A)(1)(3)(d) allows pets as an accessory use, although it does not describe which animals are considered pets. Newtown does not have a stand-alone pet ordinance. The reference to pets is in the section of the Ordinance dealing with livestock and poultry.

Should the Zoning Hearing Board determine that these animals are not pets, the applicant is seeking a variance. The applicant’s hardship is that this is an undersized lot. If this were a conforming lot, the pigs would be permitted. The size of the lot prevents the applicant from enjoying the full use of the property as would be permitted on a conforming lot in this zoning district. The keeping of these pets would not alter the character of the neighborhood, nor would it be a detriment to the public health and safety. The applicant would accept conditions to any variance limiting the number of pigs to two and the number of chickens to six, with no roosters.

Mr. Auchinleck asked whether the notice of violation referenced is the letter dated July 17, 2012. If so, that letter states that three acres are required for keeping of chickens.

Mr. McNair confirmed the date of the notice and that three acres are required for chickens, however the ordinance does provide for pigs on lots of three acres or less.

Mr. Auchinleck entered as Exhibit ZHB-1 the letter dated July 17, 2012 from Zoning Officer Martin Vogt and Exhibit ZHB-2, a Wikipedia entry describing pot-bellied pigs. He noted that the violation letter is postmarked July 30, 2012.

Mr. McNair entered the following exhibits:

  • A-1 – Google Earth map of property
  • A-2 – deed to TMP -29-3-63-001
  • A-3 – Plot Plan with improvements
  • A-4 – photograph of chicken fenced area
  • A-5 – photograph of rear yard
  • A-6 - Photograph of south side yard
  • A-7 – Photograph of chicken wire on south side yard
  • A-8 – Notice of violation
  • A-9 – Photograph of sunroom with pigs
  • A-10 – receipts for pig food showing sales tax
  • A-11 – PA Livestock Association determination re pot-bellied pigs
  • A-12 – Former Governor Tom Ridge’s proclamation stating that pot-bellied pigs are pets
  • A-13 – US Department of Agricultural opinion letter
  • A-14 – Letter of Veterinarian Dr. Paul Sundberg
  • A-15 – Letter of Veterinarian Dr. Steven Milden
  • A-16 – Letter of Veterinarian Dr. Arlen Wilbers
  • A-17 – Study comparing pot-bellied pigs with cats and dogs
  • A-18 – JMZO Ordinance No -226-04, regulations pertaining to livestock and poultry.

In response to Mr. McNair’s questions, Ms. Specter said that she has lived in her home, built in 1764, for twelve years. She reviewed the surrounding properties as shown in Exhibit A-1, noting the portion of land behind her home which is owned by Newtown Township and has a conservation easement as well as her adjoining neighbors’ homes. She reviewed Exhibit A-3, pointing out her home, garage and chicken coop, all surrounded by fences. Her pigs stay in a sunroom attached to the house. The house has a non-conforming front yard setback. The chicken coop is not visible from the street.

Mrs. Doorley asked whether Ms. Specter has had any problems with foxes.

Ms. Specter said that the chicken coop is surrounded by an eight foot high fence; there have not been problems with predators.

Ms. Specter reviewed the photographs entered as Exhibits A-4 through A-7, which show buffering and fencing around the entire property.

Ms. Specter explained that she had been volunteering at the AARK Foundation when she was advised to get chickens to control the ticks in her yard by Ms. Magidson. A number of years ago she got the six chickens. Five years ago she rescued the two pigs. These pigs are housebroken and stay in a sunroom attached to her house. The pigs stay indoors most of the time, going outside for only an hour or so very day. Because they are vegetarians, their waste has no odor. It is cleaned up as is any pet waste. The pigs’ food is taxed as pet food, as shown in Exhibit A-10. Under Pennsylvania law, livestock feed is not taxable.

Ms. Specter reviewed Exhibits A-11 through A-17, all expert opinions showing pot-bellied pigs to be pets, not livestock. Their meat is unsuitable for consumption and they are trained and intelligent pets.

Mr. Wind noted that the letters are not specifically addressed to Ms. Specter.

Ms. Specter said that she had gotten a packet of information on pot-bellied pigs from a pot-bellied pig association. She reviewed Exhibit A-17, which shows how the pigs compare with other domestic pets such as cats and dogs.

In response to Mr. McNair’s questions, Ms. Specter said that she had originally acquired the chickens to control ticks, but now keeps them in a fenced coop area. They are not being raised for sale, nor are their eggs sold. They are pets and have names. Their coop is cleaned once or twice a week. There is no odor and there have not been any complaints from neighbors. The rooster has been relocated. She would accept as a condition of any variance granted that she would never have any roosters.

In response to Mr. Lionetti’s questions, Ms. Specter reviewed the location of Cliveden Estates homes on the aerial photograph, pointing out that the nearest home is not directly opposite her house. She confirmed that she has lived in her house since 2000, acquiring the chickens shortly after she moved to the property and had rescued the pigs in 2007. She did try to learn from the Township whether the pigs would be permitted but did not remember who told her she could keep pigs. She had discussed this at Davis Feed Mill and may have asked at the Township whether pigs are permitted in the R-1 district.

Mr. Iapalucci said that he wondered why the Ordinance requires three acres for chickens. He then asked whether Ms. Specter had any letters from surrounding neighbors in support of the chickens and pigs.

Ms. Specter said that her next door neighbor, Ms. Kogan, had been expected to come this evening but it is a religious holiday for her. She has no objections. There are no neighbors in attendance who are opposed to the application.

Mr. Iapalucci asked whether Ms. Specter has any other pets.

Ms. Specter said that she has three dogs.

Mr. Potero asked whether all of the surrounding neighbors had been notified of the hearing.

Mrs. Doorley said that the Zoning Hearing Board sends notices to all properties within 500 feet of the applicant. In this case about twenty letters were sent.

Mr. Lionetti said that this seems to be a self-inflicted hardship, as Ms. Specter brought the animals onto her property, which had been non-conforming when purchased.

Mr. McNair said that the size of the property is a hardship because the size limits Ms. Specter’s use of the property from what would be the reasonable use of a residential property in the R-1 zoning district. A conforming lot would be permitted to have pigs.

Mr. Auchinleck said that the applicant is seeking a dimensional variance, not a use variance. It is necessary to allow the property owner to have reasonable use of the property. The use is permitted; it is the dimensions of the property that has limited the use.

Susan Magidson of Warwick Township said that she is proprietor of Ross Mill Farm and president of the Pot Bellied Pig Association. She is an expert on pot-bellied pigs and has 130 pigs at the farm. The pigs range in size from 80-160 pounds and are very docile, non-aggressive pets. There have been very few instances of biting. She maintains a database of over 2000 pot-bellied pig owners and has placed over 1200 pigs as pets. They are not livestock. They are considered more intelligent than chimps and are housetrained. She is familiar with the study entered as Exhibit A-17 and agrees with its findings.

Mr. Auchinleck accepted Ms. Magidson as an expert witness.

Mr. Wind asked about living conditions required to raise pot-bellied pigs.

Ms. Magidson said that pigs should be kept in pairs. They need a living space or pen of 20’X30” and a grazing area about the size of a good-sized backyard. They can be very strong and could move furniture, but she did not think they could knock down a fence. She noted that the pigs do not want to escape, but prefer to be kept safe in a smaller space. They are socially compatible with chickens.

Mr. Iapalucci asked whether Mr. McNair had any background information on JMZO 2006-04, as to why three acres are required for keeping chickens.

Mr. McNair said that he believes this is addressed as a livestock and poultry use in the ordinance. If a property is three acres, 25 chickens could be permitted.

Joe Keats, 373 Washington Crossing Road, was sworn in. Mr. Keats entered as Exhibit A-19, photographs of the pigs with children. He said he has been a resident of Newtown for 25 years. The pigs live inside his home in an air-conditioned and heated sunroom. They are well behaved and gentle with children. They have never escaped his property and have never been aggressive.

Troy Perlman was sworn in. He said he is a friend of Ms. Specter and visits her home frequently. He confirmed that the pigs are pets, are well behaved and gentle with children.

Patricia Barberry was sworn in. She said she has been a friend of Ms. Specter and frequent visitor to her home. She confirmed that the pigs are house pets. She said that Ms. Specter loves animals and has volunteered for animal organizations for many years. These pigs are a part of Ms. Specter’s family. She asked the Zoning Hearing Board to grant a variance, noting that the property is surrounded by wetlands, and that the adjoining 12 acres were never expected to have been developed because of the wetland conditions.

Greg Kramer was sworn in. Mr. Kramer said he has lived and worked in the Township for many years and is a frequent visitor to Ms. Specter’s home. His children love the pigs, which are very gentle house pets.

Anita Bonnato was sworn in. Ms. Bonnato noted that there are many animals without homes but these pigs are cared for in a loving home where they are beloved pets. She urged the Board to allow the pigs to remain.

In response to Mr. Auchinleck’s questions, Township Zoning Officer Martin Vogt said that he became aware of the animals on Ms. Specter’s property because of a neighbor’s complaint about the keeping of livestock and poultry on an undersized lot, not because of noise or odor. The Township is not actively seeking out violations for keeping of livestock.

Mr. McNair asked Mr. Vogt about provisions in Section 803 (5)(a) for the keeping of pigs on lots of three acres or less, noting that this lot is less than three acres.

Mr. Vogt said that historically, until 2004, the ordinances have required more than three acres, however the 2004 ordinance allows livestock on acreage less than three on contiguous parcels commonly owned.

Mr. Auchinleck said that the ordinance does not reference commonly owned but would indicate commonly controlled, as in the case of rented or leased parcels. He asked whether the Township has any opinion of the livestock as pets.

Mr. Vogt said that the Township does not have an opinion on livestock as pets, but considers pets to be animals which can be purchased in a pet store. Chickens are not pets.

Mr. Potero asked whether the open space adjacent to Ms. Specter’s property could be considered in discussion of “contiguous” acreage.

Mr. Auchinleck said that only land which the animals can use and is under the applicant’s control can be considered.

In response to Mr. McNair’s questions, Mr. Vogt said that the JMZO does not contain a definition of “pets” nor does the Township or JMZO have a stand-alone pet ordinance. The reference to pets is contained in Section 803(A)(1)(3), where pets are referred to as an accessory use. This is the section of the Ordinance dealing with livestock and poultry.

Mr. McNair said that the issues to be addressed are whether the animals are pets or whether to grant a variance to allow the keeping of the animals. The Ordinance acknowledges the keeping of pets as an accessory use, and this is contained in the Section dealing with livestock and poultry, although there is no definition of pets. When an ordinance is ambiguous, the MPC requires the Zoning Hearing Board to find in favor of the property owner. He re-iterated that the pigs are pets based on the caretaker’s treatment of the animals and that they are not being raised for profit. Their food is taxed as pet food. There has been expert testimony on pot-bellied pigs as pets, not livestock.

Mr. McNair said that if the Zoning Hearing Board does not find that the animals are pets, he would argue for a dimensional variance, as the undersized lot is a hardship; its dimensions do not permit the owner to have reasonable use of the property. Under the ordinance, lots in the R-1 zoning district which are under three acres are permitted to have 5 head of non-grazing animals. The granting of a variance will not alter the character of the neighborhood; there is no odor or noise. The applicant would accept as conditions that there would be only two pigs and six chickens and no roosters. To deny a variance would also be an emotional hardship.

Mrs. Doorley noted that the expert witness discussed the need for the pigs to graze.

Mr. Auchinleck noted that our ordinance defines pigs as non-grazing animals.

Mr. Lionetti asked the life expectancy of pot-bellied pigs.

Ms. Magidson said that they live for 16 to 18 years.

Mr. Auchinleck asked whether the applicant would accept as a condition that any variance would be limited to the current owners of the property.

Mr. McNair said this would be acceptable.

Mr. Lionetti moved to uphold the actions of the Zoning Officer and to grant variances from Section 404 (A) to allow the applicant to keep not more than two pot-bellied pigs and six chickens and no roosters on an undersized lot, from section 803(A-1)(3)(b)(1) to allow six chickens on less than 3 acres and from Section 803(A)(3)(a)(5) to the extent that the ordinance requires three acres for the keeping of pot belly pigs subject to the condition that this variance is extended to the current owner of the property at 373 Washington Crossing Road, only. Mr. Potero seconded.

Discussion of motion: Mr. Wind asked whether Ms. Specter would accept a condition that the chicken coop not be moved from its current location or that it not be made any larger.
Mr. McNair said that would be acceptable.

Mr. Lionetti amended his motion to include a condition that the chicken coop is not to exceed the size of the existing coop and is not to be relocated elsewhere on the property. Mr. Potero amended his second and the motion passed 5-0.

Mr. Iapalucci moved to adjourn at 10:15 PM. Mr. Lionetti seconded and the motion passed 5-0.

Respectfully Submitted:

 

Mary Donaldson, Recording Secretary