We are accustomed to seeing some accommodations for emotional support animals in the housing context. Recently, a Borough’s zoning hearing board and the Court of Common Pleas were asked to resolve a similar issue in a zoning case. The facts and issues in the case touched on urban agriculture issues that are becoming increasingly more common in addition to the interpretation of certain terms in the Borough’s zoning ordinance. Like short-term rentals, emotional support animals and urban agriculture are uses that are not typically addressed in zoning ordinances, thereby leading to cases just like this.
A young boy with autism lived with his mother and grandfather in a two-family residential building on property owned by the grandfather and located in the Borough’s commercial zoning district. The boy’s family acquired eight ducks as therapeutic pets after he had a positive experience with a friend’s pet duck. The ducks were kept at the residential property, living outside in a fenced yard but also spending some time inside the house. The Borough had attempted to deal with the keeping of animals on a residential property in the past. In one prior case, the zoning hearing board had determined that the keeping of limited numbers of cattle, sheep, pygmy goats, ducks, turkeys and chickens on a residential property did not constitute a “customary agricultural use” since the animals were not being raised for sale and were considered to be family pets.
In the case of the ducks, the Borough issued an enforcement notice alleging that the keeping of the ducks on the property was an agricultural operation which was not a permitted use under the Borough’s zoning ordinance. The boy’s grandfather appealed the enforcement notice to the Borough’s zoning hearing board (“ZHB”). At the hearing, which had to be relocated to the local fire hall due to the number of people that attended, the boy’s family confirmed that the ducks were kept at the property to assist with the boy’s autism. The grandfather described how the ducks have a calming effect on his grandson and how he hasn’t needed his anxiety medication since acquiring the ducks. The boy’s physician provided a letter which concluded that the ducks provided significant benefits to the boy.
The Borough’s zoning ordinance did not define the term “agricultural operations” but it did permit poultry operations in all zoning districts provided the property is at least three acres in size and the operation is set back at least two hundred feet from all property lines. The ZHB determined that the keeping of ducks on the property did not constitute a poultry operation or an agricultural operation. Rather, the ZHB concluded that the ducks were permitted as “customary household pets” which is defined in the zoning ordinance to include birds. Therefore, the ducks were lawfully permitted to be kept on the property as an accessory use to the existing residential use.
The Borough appealed the ZHB’s decision to the Court of Common Pleas which upheld the ZHB’s decision, noting in the written opinion that it was the first time the Court had been asked to resolve an appeal “that implicates the question of whether ducks should be required to wear diapers . . . .” Apparently, the Borough had suggested that the ducks should be required to wear diapers when inside the house. The Court looked to balance the clearly stated benefits the boy received from keeping the ducks and the Borough’s concern that allowing the ducks to remain on the residential property without restrictions would set an undesirable precedent.
The Court felt that imposing some conditions would adequately address the Borough’s concern with establishing an undesirable precedent without overly restricting the boy’s ability to keep and maintain the ducks. Ultimately, the Court imposed conditions that included where the ducks could be kept on the property, limitations on the number of ducks and requiring an annual certification from a physician that there is a “tangible medical benefit” to keeping the ducks on the property. Although, the Court did not require the ducks to wear diapers.
This case serves to highlight and emphasize the need for municipalities to continually review and update their zoning ordinances to reasonably accommodate and regulate new and emerging uses such as emotional support animals and urban agriculture. Please contact any member of the McNees Wallace & Nurick Land Use Group with questions regarding this post or for assistance with any land use issues.