Kightlinger v. Bradford Twp. Zoning Hearing Board,
872 A.2d 234 (Pa. Cmwlth. 2005)
On a 25-acre parcel, Landowner sought a variance to erect a ten-foot high fence around the parcel to create a deer propagation area. The zoning hearing board denied Landowner’s application. On appeal, Landowner argued that the local land use ordinance restricting fence heights over eight feet should be preempted because, under a Pennsylvania Game Commission Deer Propagation Permit he had obtained, he was required to build a ten foot fence. The court of common pleas reasoned that “a state agency must comply with local zoning and land use restrictions in the absence of a clear legislative intent to give the agency preemptive land use powers” and held that no such legislative intent existed in this case. Landowner appealed.
Affirming the decisions below, the Commonwealth Court found that Landowner had failed to provide any support for the conclusion that the Game Commission permit qualified Landowner’s property as land “otherwise controlled” by the Game Commission, within the meaning of Section 721, so as to preempt the local ordinance. To the contrary, the court found that under Section 728(a) of the Game Code, the Game Commission could only regulate property if it had title ownership or a lease of the property. The court noted that the mere issuance of a permit to a private landowner is not the functional equivalent of a lease or title ownership of property.
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