Pa. Appeals Court Rules For Nonprofit Giant-Breed Dog Rescue: Victory For McGuireWoods Pro Bono Client Keeps Shelter Open, Dogs Alive

Victory For McGuireWoods Pro Bono Client Keeps Shelter Open, Dogs Alive

January 21, 2015

A family’s nonprofit rescue operation for giant-breed dogs won a major ruling Wednesday from the Commonwealth Court that prevents a New Sewickley Township from using zoning codes to close the shelter and spares more than 20 dogs from likely euthanasia.

Owners Richard and Noreen Kohl can keep Gentle Ben’s Giant Breed Dog Rescue open thanks to pro bono representation from McGuireWoods. The firm defended the Kohls against complaints of a neighbor and the township’s claim that Gentle Ben’s is a commercial kennel operating in a residential area in violation of zoning codes.

“This ruling establishes the very important principle that municipalities cannot classify non-profit rescues as kennels and zone them out of communities where they are providing such a critical need,” said Matt Monsour, an associate in McGuireWoods’ Pittsburgh office who represented the family.

“In Pennsylvania, non-profit rescues can now do what they do best: save neglected, unwanted, and abused dogs without fear that their good deeds will subject them to the kennel bar,” said Monsour, whose commercial litigation practice ranges from counseling clients in amicable dispute resolutions to lawsuits in federal and state courts nationwide.

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, 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 on Wednesday affirmed the lower court decision, rejecting the Laytons’ argument that the trial court’s definition of a kennel was too narrow.