Court dismisses Catnip Acres appeal
WAYNESBURG – Greene County Court dismissed an appeal filed by the owners of Catnip Acres that sought to reverse a Franklin Township Zoning Hearing Board decision denying them a variance or special exception to operate their business in a residential area.
Carol and Richard Pultorak filed the appeal after they were denied a special exception or variance by the zoning board in November to operate the business at 155 Dark Hollow Road.
Carol Pultorak has operated a nonprofit animal rescue operation and spay and neuter clinic at the property for several years. The area is zoned R-1 residential.
A complaint filed in October alleged the property was being used for an animal hospital, which is not a permitted use in an R-1 zone.
The Pultoraks appealed the township’s notice of violation and asked the zoning board to grant a special exception for home occupation and necessary variances to continue operating the business at the site.
At the Nov. 27 zoning hearing, Carol Pultorak and her attorney presented testimony, photographs and documents to support her claim the business was not operating as an animal hospital.
Those opposing the operation argued, however, Catnip Acres’ employment of veterinarians, one available on a 24-hour basis, and its state-of-the-art surgical suite, elevated the business to the level of an animal hospital.
The couple subsequently appealed the hearing board’s decision to the Greene County Court. In an order issued Friday, Judge William Nalitz dismissed the appeal.
In a memorandum opinion, Nalitz cited Carol Pultorak’s work to care for unwanted and feral cats and the low cost she charged for the services.
“There can be no doubt that Appellant does good work and she deserves unequivocal praise for her efforts,” Nalitz wrote. “… No doubt a significant reason for Catnip Acres’ continued operation is Appellant’s subsidy of it.”
However, comments about Catnip Acres’ good work, many included in an online petition provided to the zoning board, miss the point, the judge said.
“The only issue for the ZHB and now for this Court is whether that business should continue at 155 Dark Hollow Road in an R-1 District,” the judge wrote. “If the generosity and good works of the property owner trumped the Zoning Ordinance, there would not be much point in having a zoning ordinance.”
Nalitz determined the zoning board’s findings were supported by evidence presented at the Nov. 27 hearing and the Pultoraks’ had no basis under the zoning ordinance for either a variance or special exception.
A variance can be granted where, among other things, an applicant shows there is no possibility the property can be developed in conformity with the ordinance and without the variance there could be no reasonable use for the property, the judge said, quoting the ordinance.
However, the property was developed years ago as a single-family residence in conformity with the ordinance, the judge said.
In regard to the special exception as a home occupation-professional services, Nalitz noted that none of the descriptions of professional services for home occupations defined in the ordinance was similar to the activities at Catnip Acres.
In addition, the ordinance cites certain conditions for a home occupation that include the use not change the external appearance of the dwelling or increase traffic in the neighborhood.
The development of Catnip Acres included construction of two buildings and six-foot fence, the judge said. Though conflicting testimony was presented regarding traffic, the Pultoraks presented photographs showing at least 12 vehicles parked at the site on what was said to be a typical day.
The Pultoraks also appealed the township’s cease and desist order to halt her operation of an animal hospital in a R-1 area. The ordinance defines an animal hospital as a building used by a veterinarian for the treatment, housing and boarding of small domestic animals.
Ample evidence was presented that a veterinarian treats cats and dogs at Catnip Acres and that these animals are housed so long as their treatment requires, sometime overnight, the judge said.
Carol Pultorak, contacted Tuesday, said she would appeal the court’s decision but is also looking at several other locations to move her operations, including one nearby that is zoned agricultural.
Catnip Acres has continued to operate since the appeal was filed. Steve Coss, township code enforcement officer, said Tuesday that he only learned about the judge’s decision and would discuss the matter with the board’s solicitor.
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