IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward T. Franks and Theresa :

S. Franks, husband and wife, :

Appellants :

:

v. :

:

Fayette County Zoning Hearing :

Board :

:

v. :

:

Shawn Gowatski and Billi : No. 1638 C.D. 2014

Gowatski, his wife : Argued: November 17, 2015

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: May 12, 2016

Edward T. Franks and Theresa S. Franks, husband and wife,

(collectively, Objectors) appeal from the Fayette County Common Pleas Court’s (trial 

court) August 11, 2014 order affirming the Fayette County Zoning Hearing Board’s

(ZHB) order denying their appeal. Objectors present six issues for this Court’s 

review: (1) whether the ZHB erred by finding Shawn Gowatski (Applicant) and Billi 

Gowatski (Mrs. Gowatski) (collectively, Applicants) met the requirements in the

Fayette County Zoning Ordinance (Ordinance) for a special exception; (2) whether 

the ZHB erred by concluding that Applicants met their burden under Sections 1000-

500, 1000-503 and 1000-842 of the Ordinance; (3) whether the ZHB improperly 

 

1

This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt 

became President Judge. 
2

shifted the burden of proof to Objectors; (4) whether the ZHB erred by limiting

Objectors’ counsel’s cross-examination; (5) whether the ZHB erred by failing to 

consider evidence of the neighborhood’s residential character, the lack of safety 

measures for dogs of vicious propensity, and the health, safety and welfare of the 

adjacent community; and (6) whether the ZHB erred in failing to require 

soundproofing in the Applicants’ land development plan.2 After review, we affirm.

Applicants own real property located at 270 Gimlett Hill Road in Mt. 

Pleasant, Bullskin Township, Fayette County, Pennsylvania (Property). The Property 

is located in an A-1 Agricultural-Rural zone. Applicants filed a petition for a special 

exception (Petition) to operate a boarding kennel for dogs and cats on the Property. 

The ZHB held three hearings during which Applicants, Objectors and others testified.

Based on the evidence presented, the ZHB made the following relevant 

findings: Applicants planned to construct a 39.4 x 99.4 foot building (Building) on 

the Property for use as a boarding kennel. The kennel will be operated between 8:00 

a.m. and 5:00 p.m., Monday through Saturday. Applicants also intend to offer pet 

grooming services to the general public. Animal pick-up and drop-off will occur 

within the kennel from 8:00 a.m. to 10:00 a.m. and 5:00 p.m. to 7:00 p.m. Applicants

intend to install a ventilation and soundproofing system in the Building. Specifically, 

the Building will be constructed using foam-filled concrete blocks and an insulated 

roof to control sound. Although Applicants have not conducted sound studies or 

obtained sound-related information from similar facilities, Applicants intend to 

comply with the Ordinance’s decibel limitations. The Building will have a maximum 

of thirty indoor/outdoor runs for dogs and an indoor area to house a maximum of ten 

cats. The outdoor dog runs will only be used during daylight hours, with a maximum 

of five dogs per side. Applicants will install a lockable fence around the outdoor 

 

2 By January 3, 2015 letter, the ZHB notified this Court that it would not file a brief, but 

joined in the arguments set forth in Applicants’ brief.
3

animal runs. Each run will be locked, and a privacy fence will be installed around the 

animal runs. The animal runs will be cleaned a minimum of twice per day. Liquefied 

animal waste will be washed into a channel with a six to twelve inch containment lip 

which will run to a holding tank that will be installed and operated in accordance with 

the Bullskin Township’s Holding Tank Ordinance. Solid waste will be doublebagged and refrigerated until picked up by the municipal waste disposal service. 

Applicants will control excessive dog barking by requiring dog owners to use bark 

suppression collars. Lighting for the Building will be installed so not to impact the 

surrounding properties. 

On November 27, 2013, the ZHB concluded that the Applicants had met 

their burden of proof, and that the proposed kennel would not adversely impact the 

health, safety and welfare of the surrounding residents. The ZHB further 

acknowledged that it may grant a special exception for a boarding kennel in an A-1 

Agricultural-Rural zone. Accordingly, the ZHB issued Resolution 13-41, granting 

Applicants’ Petition.

Objectors appealed to the trial court. On August 11, 2014, based on the 

ZHB’s record, the trial court affirmed the ZHB’s decision. Objectors appealed to this 

Court.3

 

3 Where the trial court takes no additional evidence, this Court’s 

‘review is limited to determining whether the Board committed an 

abuse of discretion or an error of law.’ Taliaferro v. Darby T[wp.]

Zoning Hearing B[d.], 873 A.2d 807, 811 n.1 (Pa.[]Cmwlth.[]2005). 

A zoning hearing board abuses its discretion when its factual findings 

are not supported by substantial evidence. JoJo Oil Co. v. Dingman 

T[wp.] Zoning Hearing B[d.], 77 A.3d 679, 685 n.6 

(Pa.[]Cmwlth.[]2013). ‘Substantial evidence is such relevant 

evidence as a reasonable mind might accept as adequate to support a 

conclusion.’ Id.

Tinicum Twp. v. Nowicki, 99 A.3d 586, 589 n.6 (Pa. Cmwlth. 2014) (emphasis added). 
4

Objectors’ first argument heading in their brief describes Objectors’ first 

issue as a challenge to the ZHB’s finding that Applicants provided sufficient evidence 

of statutory compliance for the grant of a special exception. However, the heading is 

wholly different from the content of their argument. Objectors’ entire first argument 

challenges the trial court’s interpretation and application of relevant ordinance 

sections, not the ZHB’s decision. Objectors cite to and quote from particular 

portions of the trial court’s opinion, arguing that the trial court’s interpretation is 

erroneous. Objectors’ first argument is totally devoid of any allegation of error on 

the part of the ZHB.

Since the trial court took no new evidence, it is the ZHB’s “decision, not 

the [trial] court’s [decision], we must review.” City of Phila. v. Angelone, 280 A.2d 

672, 676 (Pa. Cmwlth. 1971); see also In re Brickstone Realty Corp., 789 A.2d 333, 

338 n.2 (Pa. Cmwlth. 2001) (“Our standard of review . . . pertains to whether the 

[zoning hearing b]oard, not the trial court, erred or abused its discretion.”). Because 

Objectors’ first issue pertains solely to alleged errors of law made by the trial court,

which is beyond our scope of review,4 we decline to address it. See Borough of St. 

 

4 Our Supreme Court has explained: 

‘Scope of review’ and ‘standard of review’ are often-albeit 

erroneously-used interchangeably. The two terms carry distinct 

meanings and should not be substituted for one another. ‘Scope of 

review’ refers to ‘the confines within which an appellate court must 

conduct its examination.’ Coker v. S.M. Flickinger Co[.], Inc., . . .

625 A.2d 1181, 1186 ([Pa.] 1993). In other words, it refers to the 

matters (or ‘what’) the appellate court is permitted to examine. In 

contrast, ‘standard of review’ refers to the manner in which (or 

‘how’) that examination is conducted. In Coker we also referred to 

the standard of review as the ‘degree of scrutiny’ that is to be applied. 

Id. . . . at 1186.

Morrison v. Dep’t of Pub. Welfare, Office of Mental Health (Woodville State Hosp.), 646 A.2d 565, 

570 (Pa. 1994).
5

Lawrence v. Zoning Hearing Bd. of the Borough of St. Lawrence, (Pa. Cmwlth. Nos.

119, 218 C.D. 2011, filed March 21, 2012).

5

Objectors next assert that the ZHB erred when it concluded Applicants 

met their burden under Sections 1000-500,61000-503

7

and 1000-8428of the 

Ordinance.

This Court has explained:

The law with regard to conditional uses and special 

exceptions is clear. 

[T]he applicant for a special exception has both 

the duty of presenting evidence and the burden 

of persuading the competent tribunal that his 

proposal complies with all objective 

requirements of the ordinance . . . ; the 

objectors to the application have both the duty 

of presenting evidence and the burden of 

persuasion, that the use will have a generally 

detrimental effect on health, safety and welfare 

 

5

In St. Lawrence, this Court noted:

The Borough also argues that the trial court’s Order should be 

reversed because, other than citing to its standard and scope of 

review, the trial court did not cite any law or specific record 

references to support its affirmation of the [zoning hearing b]oard’s 

determination. However, we note that, because the trial court did not 

take additional evidence, this Court is reviewing the [zoning hearing 

b]oard’s decision, not the trial court’s Order, to determine whether 

the [zoning hearing b]oard committed an error of law or abused its 

discretion.

Id., slip op. at 9 n.5 (citations omitted). We acknowledge that this Court’s unreported memorandum 

opinions may be cited “for [their] persuasive value, but not as a binding precedent.” Section 414 of 

the Commonwealth Court’s Internal Operating Procedures. 

6

Section 1000-500 of the Ordinance requires that all property uses comply with 

Performance Standards contained in Article V.

7

Section 1000-503 of the Ordinance is a Performance Standard prohibiting excessive noise. 

8

Section 1000-842 of the Ordinance provides that an animal kennel shall be a permitted 

special exception subject to certain enumerated conditions and/or standards set forth therein. 
6

or will conflict with expressions of general 

policy contained in the ordinance.

Foster Grading Co. v. Venango T[wp.] Zoning Hearing 

B[d.], . . . 412 A.2d 647, 649 ([Pa. Cmwlth.] 1980). 

Furthermore, the objectors must demonstrate to a high 

degree of probability that the applicant’s proposal will 

substantially affect the health and safety of the community 

in an adverse manner. It is not sufficient that the protestants 

allege the mere possibility of adverse impact. Finally, it is 

important to remember that a conditional use or a special 

exception is actually a permitted use absent proof that the 

adverse impact on the public interest is greater than might 

be expected under normal circumstances. 

Robinson Twp. v. Westinghouse Broad. Co., 440 A.2d 642, 644 (Pa. Cmwlth. 1981)

(citations omitted); see also Oasis v. Zoning Hearing Bd. of S. Annville Twp., 94 A.3d 

457 (Pa. Cmwlth. 2014); Hoppe v. Zoning Hearing Bd. of the Borough of Portland, 

910 A.2d 756, 758 (Pa. Cmwlth. 2006) (“Pennsylvania law provides that a special 

exception is a use to which an applicant is entitled as a matter of right unless the 

zoning hearing board determines that the use would adversely affect the 

community”). 

Article V of the Ordinance is titled “Performance Standards.” Within 

Article V, Section 1000-500 of the Ordinance states:

A. All uses must comply with the requirements of this 

Section. Compliance shall be determined by the Zoning 

Officer with respect to permitted uses by the [ZHB] with 

respect to special exceptions and by the Board of County 

Commissioners with respect to conditional uses. In order to 

determine whether a proposed use will conform to the 

requirements of this Article, the County may obtain a 

qualified consultant’s report whose credentials are 

acceptable to the Board of County Commissioners to testify

and whose cost for services shall be borne by the applicant.

. . . .
7

C. The County may assign a private third[-]party agency to 

provide measurements for the respective performance 

standards from §[ ]1000-501 through §[ ]1000-507 [of the 

Ordinance]. Any associated testing fees must be paid by 

the applicant (‘complainant’) to the County (or designee). 

Any subsequent reimbursement for spent fees would be 

between the parties involved in the dispute.

Reproduced Record (R.R.) at 131a. Also within Article V, Section 1000-503(A) of 

the Ordinance provides:

Noise which is determined to be objectionable because of 

volume, frequency or beat shall be muffled or otherwise 

controlled, except that fire sirens and related apparatus used 

solely for public purposes shall be exempt from this 

requirement. Noise in excess of ninety (90) decibels as 

measured on a decibel or sound level meter of standard 

quality and design operated on the A-weighted scale at a 

distance of twenty-five (25) feet from any property line of 

the property on which the noise source is located shall not 

be permitted.

R.R. at 132a.

Article VIII of the Ordinance entitled “Uses by Special Exception” 

contains Section 1000-800(A) of the Ordinance which expressly governs “[u]ses by 

[s]pecial [e]xception” and provides: “All applications for a use by special exception 

shall demonstrate compliance with the applicable express standards and criteria of 

this Article and the applicable minimum lot area, maximum lot coverage, maximum 

building height, setback requirements and bufferyard requirements of the zoning 

district in which the use is proposed.” Ordinance § 1000-800(A).9 The express 

standards for an animal kennel special exception are contained in Section 1000-842 

of the Ordinance, which, among other things, requires that kennels adjacent to 

 

9

Section 1000-800 of the Ordinance is not contained in the Reproduced Record. It was, 

however, attached to the certified record. 
8

residential lots “be soundproofed[10]to minimize noise impact on adjacent 

properties.” R.R. at 133a. 

The law is well established that:

It is the duty of the zoning [hearing] board in the exercise of 

its discretionary power to determine whether a party has 

met its burden of proof. Determinations as to the credibility 

of witnesses and the weight to be given to the evidence are 

matters left solely to the Board in the performance of its 

factfinding role. 

Shamah v. Hellam Twp. Zoning Hearing Bd., 648 A.2d 1299, 1304 (Pa. Cmwlth. 

1994) (citation omitted; emphasis added); see also Pennsy Supply, Inc. v. Zoning 

Hearing Bd. of Dorrance Twp., 987 A.2d 1243 (Pa. Cmwlth. 2009).11

 

10 The Ordinance does not define the word “soundproof.” “Zoning ordinances are to be 

construed in accordance with the plain and ordinary meaning of their words.” Upper Salford Twp. 

v. Collins, 669 A.2d 335, 337 (Pa. 1995). The dictionary defines the word “soundproof” to mean, 

“to insulate so as to obstruct the passage of sound[.]” Merriam-Webster’s Collegiate Dictionary

1192 (11th ed. 2004).

11 Section 1000-1103(A) of the Ordinance provides:

The [ZHB] shall have the power to decide applications for use by 

special exception as specified in this Chapter in harmony with its 

general purpose and intent and in accordance with the standards set 

forth. The [ZHB] shall approve a use by special exception only if 

it meets all applicable requirements of this Chapter and the 

express standards and criteria set forth in Article VIII of this 

Chapter. In granting a use by special exception, the [ZHB] may 

attach such reasonable conditions and safeguards in addition to those 

expressed in this Chapter as it may deem necessary to properly 

implement this Chapter and to protect the public’s health, safety and 

welfare.

R.R. at 135a (emphasis added). Notably, Section 1103(A) emphasizes the necessity of compliance 

with Article VIII of the Ordinance, but does not specifically mention Article V of the Ordinance

(Performance Standards).
9

Objectors contend that Applicants failed to meet their burden regarding 

the requirements imposed by Sections 1000-503(A) and 1000-842(D)

12 of the 

Ordinance because Applicants

presented absolutely no testimony with regard to the 

manner in which they could or would comply with the 

standard. To the contrary, [Applicants] did not have a 

sound expert testify as to the manner in which compliance 

could be made with the standard not to exceed 90 decibel 

levels at a distance of 25 feet from the [P]roperty line. 

[Applicants] did not conduct any sound studies for the 

proposed boarding kennel on the [Property] or produce 

sound related information from like type facilities. 

Objectors’ Br. at 22. Further, Objectors point to Mrs. Gowatski’s testimony wherein 

she admitted that she had no expertise in measuring sound levels. 

A review of the record reveals Mrs. Gowatski testified that the Building 

would be constructed with “eight-inch cinder blocks filled with foam or concrete to 

help with soundproofing.” R.R. at 25a. She also stated that:

On top of the block it will be stick construction of 2x6 studs 

filled with insulation. . . . There will be a soundproofing 

membrane between the insulation and [the] drywall to help 

with soundproofing. The roofing will be insulated . . . with 

spray foam or . . . some form of insulation [to help with the 

soundproofing].

Id. She later explained:

I will be using soundproofing insulation, spray foam. 

There’s a product called DV block. It’s a membrane block 

 

12 Although Objectors in their second argument make the general assertion that Applicants 

failed to meet their burden under Section 1000-842 of the Ordinance, Objectors provided no 

specific grounds regarding the conditions with which Applicants allegedly failed to comply. 

Instead, Objectors’ basis for their contention that Applicants failed to meet their burden under 

Section 1000-842(D) of the Ordinance are contained in Objectors’ fourth argument discussing the 

ZHB’s alleged error in disallowing certain cross-examination by Objectors’ counsel. For purposes 

of clarity, we will address the latter argument pertaining to Section 1000-842(D) of the Ordinance 

below.
10

you put between sheet rock and your insulation. I will be 

using as much soundproofing as I can. As[] I stated before, 

I live there. So the kennel itself will be soundproofed as 

best I can [sic].

R.R. at 45a. In addition, Mrs. Gowatski said that she would take all steps necessary 

to comply with the 90 decibel noise limit set forth in Section 1000-503(A) of the 

Ordinance’s Performance Standards. See R.R. at 28a. For example, she testified that 

to reduce noise, she would limit dogs in the outdoor runs to five dogs on each side of 

the kennel at any one time, limit the times that the dogs were permitted outside, 

prevent noisy dogs from using the outdoor runs, and use bark control collars. See

R.R. at 20a-21a, 37a. 

The ZHB, as factfinder, is to evaluate Mrs. Gowatski’s credibility and to 

weigh the evidence presented. Shamah. This Court will not intrude upon the 

factfinder’s role so long as there is substantial evidence to support its findings. 

Although there was no expert testimony describing the planned soundproofing, the 

Ordinance does not make expert testimony a requirement. Notably, Section 1000-

500 of the Ordinance permits, but does not require the County to consult an expert. 

Therefore, Mrs. Gowatski’s testimony alone is substantial evidence -- and supports

the ZHB’s findings. Accordingly, the ZHB properly determined that Applicants met 

their burden to demonstrate compliance with the Ordinance.

Objectors also argue that the ZHB erred by shifting the burden to 

Objectors when Applicants had not met their burden. 

Once the applicant has satisfied [its] initial burden, the 

burden then shifts to any objectors to establish that the 

proposed exception would be detrimental to the public 

health, safety and welfare.

Smith v. Zoning Hearing Bd. of Huntingdon Borough, 734 A.2d 55, 59 (Pa. Cmwlth. 

1999). Because Applicants did meet their burden, the ZHB properly shifted the 

burden to Objectors. See id. 
11

Next, Objectors contend that the ZHB erred when it prevented their 

counsel Gretchen Mundorff (Counsel Mundorff) from cross-examining Mrs. 

Gowatski with regard to her compliance with Sections 1000-503(A) and 1000-842(D)

of the Ordinance. Objectors cite to two portions of the record documenting 

exchanges between Objectors’ counsel, Applicants’ counsel and the ZHB members 

during the October 30, 2013 hearing.

First, Objectors assert that Counsel Mundorff was precluded from crossexamining Mrs. Gowatski with regard to her compliance with the noise level 

restrictions set forth in Section 1000-503(A) of the Ordinance. The record reflects 

that although the ZHB initially encouraged counsel to move on because Mrs. 

Gowatski had already answered the questions posed, the ZHB ultimately permitted 

counsel to continue the inquiry to ensure the information was included in the record. 

[Counsel] Mundorff: . . . . I want to create a record and it’s 

my right to do so. 

. . . .

[ZHB member] Marella: I believe that was all asked and 

answered.

[ZHB member] Brown: She already said no, she did not. If 

she’s out of compliance - -

[Counsel] Mundorff: She has no training, she’s not an 

expert, she’s never performed the job. She did not hire a 

sound expert.

[ZHB member] Brown: She testified to that.

[Counsel] Mundorff: If we include all that, put that in the 

record, I will not ask the question.

[ZHB Chairman] Guerriere: We are going to let you put it 

in the record quickly. 
12

[Counsel] Mundorff: By questions or just by statement, Mr. 

Chair?

[ZHB Chairman] Guerriere: You want to have something 

put on the record.

[Applicants’ counsel] Bower: Have you ever done any 

studies on your own, or do you know how to do it, that is 

the question and the answer is no; is that correct?

[Mrs. Gowatski]: That’s correct. I have none.

. . . .

[Counsel Mundorff:] Mrs. Gowatski, given the fact that you 

have already admitted you have never used a sound meter, 

you’re not a sound expert, you have no training in it, you 

did not do it in connection with your request for this kennel, 

isn’t it fair to conclude that you really don’t know what 

sound, level decibel level is going to emanate from your 

kennel at this point, you don’t know, do you?

[ZHB Chairman] Guerriere: She’s already testified that she 

does not know any of that expertise. If you’re making a 

statement for the record, so be it. We have got it recorded.

R.R. at 44a-45a. 

The record demonstrates that the ZHB properly restricted Counsel

Mundorff from repeatedly asking Mrs. Gowatski questions she had already answered. 

Further, the ZHB permitted counsel to create a record. Accordingly, we discern no 

abuse of discretion. 

Objectors further claim that the ZHB erred because it prevented 

Objectors’ counsel from cross-examining Mrs. Gowatski regarding the soundproofing 

mandated in Section 1000-842(D) of the Ordinance. Objectors point to the following 

exchange:

[Counsel Mundorff:] Mrs. Gowatski, is it fair to say that 

you don’t have any training yourself in how to construct a 
13

building with soundproofing materials, do you? In your 

former life, did you construct soundproof buildings?

[ZHB Chairman] Guerriere: I think this is getting out of 

hand. She appears to say that she is trying as best she can 

to minimize soundproofing. And you want to know the 

exact definition of soundproofing –

[Counsel] Mundorff: I have moved on.

[ZHB Chairman] Guerriere: - - or minimizing it?

[Counsel] Mundorff: I want to know if sometime in her life 

she performed as a contractor.

[ZHB Chairman] Guerriere: I think it’s irrelevant. Move 

on.

[Applicant’s Counsel] Bower: She’s indicated that she will 

hire people to do this. It’s not like she’s going to build this 

building herself brick by brick, block by block. This is –

[ZHB Chairman] Guerriere: Okay Mr. Bower, that’s fine. 

Let’s move on.

[Counsel Mundorff:] Do we have a contractor in place at 

this point?

[ZHB Chairman] Guerriere: I think that’s irrelevant, too.

[Counsel Mundorff:] Do we have at least a piece of paper, 

building specifications on it showing the types of materials 

and how this will be built, do you have anything?

[Applicants’ attorney] Bower: Other than her testimony, we 

don’t have a piece of paper.

[ZHB Chairman] Guerriere: Wasn’t the earlier testimony 

here that we went over the construction of the building?

[ZHB member] Payson: Yes.

[ZHB member] Brown: We need to move on.
14

[ZHB Chairman] Guerriere: Apparently, we can move on 

from that. If you want to go back in the record, I think that 

will state exactly how it was.

[Counsel] Mundorff: I’m asking about the building 

specifications. I’m asking about what contractors use when 

they build a building. Is there anything like that for us to 

look at at this point? I’m assuming the answer is no, but 

that’s my question. 

[ZHB Chairman] Guerriere: Do you have plans in place at 

this point other than the size and the information that you 

gave us before for building construction?

[Mrs. Gowatski]: At this time, no, I don’t sir.

[ZHB Chairman] Guerriere: The answer is no.

[Counsel] Mundorff: Okay.

R.R. at 45a-46a.

The above exchange does not reveal an abuse of discretion by the ZHB. 

The ZHB properly ruled that Counsel Mundorff’s line of questioning concerning 

whether Mrs. Gowatski had ever worked as a contractor was not relevant to whether 

the Petition should be approved. Applicants intended to hire contractors to build the

soundproofed kennel and, thus, Mrs. Gowatski’s knowledge of the specific manner in 

which a building may be soundproofed was irrelevant. See R.R. at 11a, 29a. Further, 

although cross-examination may not have been as broad as that sought by Counsel 

Mundorff, Mrs. Gowatski ultimately answered counsel’s question regarding existing 

building plans, and it appears from the record that counsel was satisfied with the 

information disclosed.

Objectors also argue that the ZHB erred by failing to consider evidence 

pertaining to the neighborhood’s residential character, concerns pertaining to dogs of 
15

a vicious propensity and the health, safety and welfare of the adjacent properties.13 In 

their brief, Objectors point to objector Edward Franks’ testimony about the adjacent 

properties’ residential nature, and the ZHB’s refusal to permit the discussion of 

restrictive covenants on adjacent properties which prohibit farming on those 

properties and require their use for residential purposes only. Objectors also note that 

other neighbors testified about their concerns regarding the negative impact that the 

proposed kennel would have on the adjacent properties. 

Contrary to Objectors’ assertions, there is nothing in the ZHB’s decision 

demonstrating that the ZHB failed to consider that the adjacent properties were 

residential in nature or the impact that the proposed kennel might have upon those 

properties. In fact, the ZHB acknowledged Objectors’ challenge, stating:

[] A number of area residents expressed concerns regarding 

the negative impact that may be created by the proposed 

boarding kennel on subject property pertaining to noise, the 

quality of life, odors, traffic, the safety of area residents and 

property depreciation. 

[] The Objectors requested the Petition be denied due to the 

[Applicants’] failure to meet the burden of proof for 

compliance with Article V, Performance Standards and 

Section 1000-842 [of the Ordinance] and the character of 

the surrounding neighborhood has changed from 

agricultural to residential in nature.

R.R. at 102a (emphasis added). However, despite considering Objectors’ concerns, 

the ZHB concluded, as it was permitted to do, that “the proposed Special Exception . 

. . will not adversely impact the health, safety and welfare of the residents of the 

adjoining and surrounding area.” Id. Thus, Objectors’ argument is without merit.14 

 

13 Objectors also maintain that the trial court erred in its conclusions pertaining to the 

protections to be afforded to neighboring residents. However, as previously explained, we are 

reviewing the ZHB’s decision, not the decision of the trial court.

14 We also reject Objectors’ argument that the ZHB erred when it prohibited their counsel 

“from cross-examining [Mrs.] Gowatski as to the safety protocol which she would use for dogs with 
16

Finally, Objectors assert that the ZHB erred by not requiring the 

inclusion of soundproofing within Applicants’ land development plan in accordance 

with Sections 1000-842(D) and 1000-1103(B)

15 of the Ordinance.16

 Section 1000-

842 of the Ordinance provides express standards required for a special exception. 

Section 1000-1103(B) of the Ordinance requires special exception applicants to 

submit a land development plan as defined by Article VIII of the Ordinance. 

Notably, Objectors do not cite to Section 1000-800 of the Ordinance, which is

directly relevant to their issue. Section 1000-800 of the Ordinance provides:

A. All applications for a use by special exception shall 

demonstrate compliance with the applicable express 

standards and criteria of this Article and the applicable 

minimum lot area, maximum lot coverage, maximum 

building height, setback requirements and bufferyard

requirements of the zoning district in which the use is 

proposed.

 

vicious propensities given the eight children who live in close proximity to the proposed kennel.” 

Objectors’ Br. at 33. The transcript reflects that, during cross-examination, Counsel Mundorff’s 

inquiry was answered to her satisfaction, whereby she stated, “[t]hat answers the question.” R.R. at 

47a. 

15 Section 1000-1103(B) of the Ordinance states:

Applicants for a use by special exception shall submit a land 

development plan, as defined by Article VIII of this Chapter, and a 

fee as established from time to time by resolution of the Board of 

County Commissioners. The land development plan shall be 

accompanied by a written application in a form prescribed by the 

County, including an indication of compliance with the express 

standards and criteria specified in Article VIII of this Chapter.

R.R. at 135a.

16 Applicants assert that Objectors did not raise this issue in their land use appeal, and thus it 

is waived. We disagree. Contrary to Applicants’ contention, Objectors’ “Notice of Land Use 

Appeal” lists as one of the Board’s alleged errors, “[t]he [ZHB] erred in not requiring [Applicants] 

to provide a building plan . . . with regard to the requirements set forth at Section 1000-842(C) and 

(D) of the [Ordinance].” R.R. at 96a.
17

B. All applications for use by special exception approval 

shall contain the following:

1. A land development plan, as defined by this Chapter, 

and where renovation or modification of an existing 

building is immediately contemplated, construction plans

showing the scope, nature and extent of said renovation 

or modifications.

2. An application fee in an amount set by resolution of 

the Board of County Commissioners.

Ordinance § 1000-800 (emphasis added).

There is no dispute that Applicants’ land development plan does not 

contain notations regarding soundproofing. However, as the trial court opined:

[T]he [ZHB’s] Resolution in this matter includes 

[Applicants’] assurances that they would comply with [the] 

provisions of the Ordinance by soundproofing the building 

and requiring all clients to equip their dogs with correction 

collars. Considering that no ‘situations as are expressly 

provided for and enunciated by the terms of the ordinance,’ 

Timber Place Assoc[s. v. Plymouth Twp. Zoning Hearing 

Bd.], 430 A.2d [403,] 405 [(Pa. Cmwlth. 1981)], require the 

inclusion of soundproofing or fencing within the land 

development plan and given: (1) [Applicants’] assurances, 

(2) the possibility for periodic inspections, (3) the ability of 

the [O]bjectors to assert presently[-]existing violations of 

the Ordinance, and (4) [Applicants’] need for yearly 

reapproval, we find no abuse of discretion by the [ZHB].

R.R. at 116a-117a (footnote omitted; bold emphasis added). We agree with the trial 

court’s analysis. Accordingly, we discern no error.

For all of the above reasons, the trial court’s order is affirmed.

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward T. Franks and Theresa :

S. Franks, husband and wife, :

Appellants :

:

v. :

:

Fayette County Zoning Hearing :

Board :

:

v. :

:

Shawn Gowatski and Billi : No. 1638 C.D. 2014

Gowatski, his wife :

O R D E R

AND NOW, this 12th day of May, 2016, the Fayette County Common 

Pleas Court’s August 11, 2014 order is affirmed.

___________________________

ANNE E. COVEY, Judge