Commonwealth Court allows Western Pennsylvania dog rescue to remain open

By Jim Boyle | Jan 22, 2015

PITTSBURGH - Finding a Beaver County township's definition of a kennel too ambiguous,

a three-judge Commonwealth Court panel ruled Wednesday that a family's nonprofit rescue operation for giant-breed dogs can remain open.

Owners Richard and Noreen Kohl may continue to operate Gentle Ben's Giant Breed Dog Rescue in New Sewickley Township after the panel unanimously agreed that since the rescue only accepts donations to defray the out-of-pocket costs to feed and house the dogs, it does not qualify as a kennel per the township's zoning codes.

"This ruling establishes the very important principle that municipalities cannot classify nonprofit rescues as kennels and zone them out of communities where they are providing such a critical need," said Matt Monsour, an associate of McGuireWoods, which represented the Kohls.

The Kohls had operated a rescue for 20-40 dogs typically of 100 pounds or more on their fenced-in property for 11 years. They are licensed by the Pennsylvania Department of Agriculture as a nonprofit kennel, dependent on donations and adoption fees to cover expenses.

The case dates to September 2012 when William and Barbara Layton, neighbors living adjacent to Gentle Ben's, complained of barking dogs on the Kohls' two-acre property. A zoning officer told the applicants that a kennel was not a permitted use under township zoning regulations.

In December 2012, they sought a variance from the township's Zoning Hearing Board to run a nonprofit dog rescue shelter. In 2013, after January and March hearings, the board ruled in April that although the rescue service was commendable, it was an unpermitted kennel and declined to grant a variance.

The Kohls appealed to Beaver County Common Pleas Court, which found that Gentle Ben's was a nonprofit that realized no economic gain for its owners and was not a commercial kennel for zoning purposes and reversed the zoning board's ruling. The Laytons appealed and the Commonwealth Court's three judges affirmed the lower court decision, rejecting the Laytons' argument that the trial court's definition of a kennel was too narrow.

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