Boswell v. Skippack Twp.

James and Paula Boswell, h/w, Petitioners v. Skippack Township and Skippack Township Board of Supervisors, Respondents

No. 389 M.D. 2006

COMMONWEALTH COURT OF PENNSYLVANIA

Argued: May 15, 2012

June 27, 2012

BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE SIMPSON

James and Paula Boswell (Landowners) filed an action against Skippack Township and the Skippack Township Board of Supervisors (collectively, Township) in our original jurisdiction seeking declaratory and injunctive relief from the Township's Peace and Good Order Ordinance (Ordinance). Landowners claim the Ordinance violates the Agricultural Communities and Rural Environment Act, 3 Pa. C.S. §§311-318, (ACRE) and the Right to Farm Law (RFL)¹ because it precludes their use of the Critter Blaster Pro (Device) in order to deter deer from their tree farm. In its opinion issued December 21, 2011, this Court entered a non-jury Decision in favor of the Township on all claims, subject to post-trial practice. We held Landowners did not prove the Device constituted a "normal agricultural operation" entitled to protection from enforcement of the Ordinance.

Before the Court are Landowners' post-trial motions for: (1) judgment notwithstanding the verdict (JNOV); (2) new trial as to use/modification of the Device; (3) reconsideration of finding as to use and (4) of finding as to public health; (5) reversal of an evidentiary ruling; and, (6) attorney fees under Section 317 of ACRE, 3 Pa. C.S. §317. After argument, we grant in part and deny in part.

I. Background

Landowners use the sound-emitting Device to repel deer from their tree farm. They operated the Device between the hours of dusk and dawn from October 2005 through March 2006. The Township issued three citations to Landowners for violating the Ordinance, alleging that use of the Device disturbed the peace of the neighborhood unnecessarily.

Landowners allege their tree farm is an agricultural operation and that the Device qualifies as a "normal agricultural operation" protected by ACRE and the RFL. As "normal agricultural operations" cannot be restricted, Landowners argue the Ordinance is invalid to the extent it precludes their use of the Device.

In a four-count complaint filed in July 2006, Landowners sought: (1) a declaration that the Ordinance is invalid because ACRE prohibits municipalities from passing an ordinance unless it excludes from the definition of nuisance an activity protected by the RFL (Count I); (2) an order enjoining enforcement of the Ordinance (Count II); and, (3) an order for attorney fees and litigation costs for negligent enforcement of the Ordinance (Counts III and IV).

After a prolonged period of inactivity, the case proceeded to a bench trial on August 1, 2011. Landowners presented the testimony of Richard Palmer to establish that the Device is a normal farming practice. Palmer has served as a wildlife conservation officer with the Pennsylvania Game Commission for over 20 years. Landowners conducted voir dire, reviewing Palmer's professional qualifications regarding wildlife control, including deer, and submitted his curriculum vitae.

Palmer testified the Device is one of the "harassment or disturbance techniques" aimed at scaring deer from affected property. Notes of Testimony (N.T.) at 19. Palmer advised the Game Commission is "the agency that is very often asked to make these interpretations of the legality as well as potential recommendations to mitigate this damage." N.T. at 20. Palmer opined that noise control devices are widely-used in Pennsylvania. N.T. at 21. On cross-examination, Palmer stated the Device is authorized as a deer deterrent. N.T. at 26.

Palmer also authored a February 27, 2009 letter to Landowners opining on behalf of the Game Commission "that devices such as, but not limited to Critter Blaster Pro and others are normal farming practices that are safe and effective in controlling damage to agricultural crops by certain types of wildlife, such as deer and blackbirds." (Letter) N.T. at 19. Palmer signed an affidavit adopting the Letter, and the trial judge admitted it.

Significantly, Palmer did not offer an opinion on Landowners' use of the Device. There is no evidence that Palmer went to the site and heard the Deviceas used by Landowners, and he did not testify regarding how the Device was used in this case. See N.T. at 23 (qualifying the legality of noise devices to "within the certain parameters"). Palmer did not testify about the specific parameters of the Device, the volume at which it should be set or whether the addition of speakers to the Device is a normal agricultural operation. Palmer's testimony focused on noise harassment techniques generally, not Landowners' use of the Device.

Landowner James Boswell testified about the deer damage to his tree farm and his other unavailing attempts at controlling deer. He tried to reduce damage to his crop by permitting hunting on his land, using dried blood, spraying the trees with deer repellant or deterrents such as "Liquid Fence" or "Deer Away," coyote urine, egg whites, dog hair and human hair. N.T. at 34-37. Based on his family's operation of tree farms, he testified fences do not work and are costly.

Pertinent to later discussion, Landowner James Boswell testified the Device came with four speakers, and he added more and directed them toward the corners of his property. N.T. at 57, 71. He measured the decibel level and testified that as he used it, the Device emitted a noise of less than 55 decibels. He set the Device's volume at 70 percent and placed it approximately 150 feet from his property line. N.T. at 44. The Device is a "high-pitched sound in the three and a half to 27,000 hertz range. It uses a pie-wedge tweeter .... All sound pressure levels are not the same. High frequency dissipates at a much shorter distance than low frequencies." N.T. at 55. There are eight different sounds. Id.

Landowner James Boswell stated that he resides on the property, andhe could not hear the Device inside his home. He testified that his family and dog have not suffered any adverse effects from use of the Device. N.T. at 46, 49, 56. Also, he measured the Device's decibel reading from areas around the neighborhood and found it barely audible. N.T. at 58-59. Boswell also operated the Device in open court. N.T. at 179.

The Township submitted the testimony of Ted Locker, the Township manager and code enforcement officer (Enforcement Officer). Enforcement Officer visited Landowners' property after receiving several complaints regarding the Device. He testified the property is zoned R-1 residential.² Enforcement Officer described the Device's noise as a "series of screeches, squeals. It sounds like fingernails on a blackboard, sounds like animals fighting ...." N.T. at 85. He could not determine whether using the Device violated the noise ordinance because he did not have proper equipment to measure "weighting scales." N.T. at 85, 93-94, 98. Instead, he issued three citations for violating the Ordinance based on complaints that the Device adversely affected the neighbors' health and safety. Enforcement Officer did not testify regarding the specific decibel-level of the Device. While he testified he took a noise meter reading, he did not have any notes to confirm the reading. He also testified he could not recall whether he could hear the Device in his vehicle or only when outside.

The Township presented the testimony of several neighbors who hearthe Device. The neighbors signed a letter, authored by Phillip Burke in February 2006, about the adverse effects the Device caused the neighborhood (Neighborhood Letter). Burke testified Landowners increased the volume of the Device after receiving the Neighborhood Letter. N.T. at 109.

Many of the neighbors testified that the Device disturbed their sleep, which affected work productivity. N.T. at 104, 105, 132, 134, 136. Burke testified he could hear the Device in his home anywhere between 5:00 p.m. and 7:00 a.m. Id. Susan Koch, Burke's wife, also testified. Generally, she confirmed Burke's testimony and added that the noise from the Device caused her to lose sleep, caused stress and strain, resulting in headaches, and caused strife in their marriage. N.T. at 132, 134, 136. She also signed the Neighborhood Letter. Bruno Lovrino, who lives across the street from Landowners, testified the Device's noises are unbearable and a person cannot go outside when it is operating. N.T. at 159.

Christopher Drummond, who lives behind the Burkes, also testified about the noise level and its impact upon his household. His property is "about a football field" from Landowners' property. N.T. at 146. Drummond testified that normal household noise generally blocked the noise from the Device; however, once all household devices were turned off, all that could be heard was the "annoying, incessant beeping and screeching." Id. Drummond testified that "with the windows closed, the volume [from the Device] was not high" and the reason it disturbs sleep is that the "pitch is really high and the noise is not consistent." Id.

The Township also called David Eubank, who lived in theneighborhood during the relevant period. He described the Device as emitting a "loud, screeching, beeping sound." N.T. at 164. Use of the Device changed the way his family normally lived. N.T. at 165. He believed the noise echoed on his property due to its configuration, and he could not escape the noise, even inside. Id. His young daughters were afraid of the noise and began having sleep issues. He was also affected with sleep loss, irritability, and lack of concentration.

The Township's last witness was Carol Arena. An easement to her property runs along Landowners' property. N.T. at 172. The Device's speakers were pointed directly at her property. Id. She verified the Device emitted the noises in Burke's audio...