Summary of a Recent
Judicial Development in
Agriculture and Urbanization

Development Company Granted Permanent Injunction

Brandy L. Brown
National AgLaw Center Graduate Assistant

In an action brought by a development company against two homeowners seeking to have the homeowners enjoined from maintaining poultry of any kind on their property, the Superior Court of Pennsylvania has granted the development company's request for a permanent injunction. Buck Hills Falls Company v. Press, 791 A.2d 392, 388-89 (Pa. Super. Ct. 2002). The court reversed the trial court's decision and remanded the matter for the trial court to consider whether development company was allowed to recover attorney's fees. See id. at 398.

Buck Hills Falls Company ("Buck Hills"), appellant, was a publicly-owned development company that owned the common areas and facilities in a residential development area known as Buck Hills Falls. See id. at 394. Clifford Press and Elizabeth Sawyer, appellees, purchased a home in the Buck Hills Falls development on September 8, 1992. See id. In 1998, the appellees began raising bantam chickens on their property, and by the summer of 1998, the appellees maintained approximately twenty chickens, including a number of roosters. See id. They built a permanent metal structure to house the flock of chickens. See id. This structure extended four feet beyond the outside wall of the appellees' house. See id.

In the fall of 1998, the General Manager for Buck Hills began receiving "complaints from community members regarding the roosters' crowing in the early morning, a foul odor emanating from the chickens, and their ceaseless clucking." Id. at 395. The only action taken by the appellees was to remove all their roosters, leaving only their hens. See id.

The entire Buck Hills Falls development, including the appellees' property, was governed by two restrictive covenants. See id. at 395. The first covenant (hereinafter "Poultry Covenant") restricted the keeping of livestock, poultry, or animals on the property. See id. The second covenant (hereinafter "Nuisance Covenant") restricted any noxious or offensive activity on the property that was or could become a nuisance. See id. In addition to these two covenants, the appellees' property was restricted by a covenant in their chain of title (hereinafter "Chicken House Covenant") that prohibited the erection or construction of any chicken houses on the property until January 1, 2050. See id. Buck Hills requested that the appellees remove the chickens from the property, but the appellees refused to do so. See id.

On August 31, 1999, Buck Hills filed a complaint against the appellees "in equity as well as a petition for a preliminary injunction requesting both that the court restrain Appellees from keeping poultry, and that attorney's fees and costs be awarded." Id. The trial court denied Buck Hills' request for a preliminary injunction on February 24, 2000, reasoning that the "[a]ppellant failed to establish that a preliminary injunction would prevent immediate and irreparable harm during the winter months when the chickens were not outside." Id. A hearing date was scheduled to determine whether Buck Hills could be granted a permanent injunction that would prevent the appellees from raising chickens on the property. See id. However, on April 26, 2000, the trial judge recused himself from the case and another trial judge was assigned to adjudicate the matter. See id.

On December 29, 2000, the new trial judge granted, in part, Buck Hills' request for a permanent injunction. See id. at 396. The injunction prohibited the appellees "from maintaining any roosters and more than five bantam hens on their property." Id. On April 16, 2001, the trial court entered a decree that made final the decree issued on December 29, 2000. See id. The trial court stayed the April 16, 2001, decree on June 12, 2001, however, pending appeal. See id. The June 12, 2001, ruling prohibited the appellees from maintaining more than ten hens and any roosters on their property. See id. Buck Hills appealed the trial court's decision to the Superior Court of Pennsylvania. See id.

The Superior Court first considered Buck Hills' argument "that the coordinate jurisdiction rule, contained in the 'law of the case' doctrine, prohibited the lower court from addressing its sister court's preliminary injunction ruling that chickens are not pets." Id. In denying Buck Hills' request for a preliminary injunction, the trial court determined that "although [Buck Hills'] practice of keeping chickens on their property was actionable, the petition was not timely in the winter months when the chickens were kept indoors." Id. Buck Hills asserted that as a result of this determination, "the question of whether the chickens are pets was settled in the negative and therefore could not be revisited by the lower court during the hearing on the permanent injunction." Id.

The Superior Court rejected this argument, explaining that the purpose of the coordinate jurisdiction rule was to promote judicial efficiency and finality in pre-trial proceedings. See id. at 396-97. It also explained that "[i]n order to determine whether the coordinate jurisdiction rule applies we must examine the procedural posture of the rulings in question. 'Where the motions differ in kind, a judge ruling on a later motion is not precluded from granting relief although another judge has denied an earlier motion.'" Id. (quoting Goldey v. Trustees of the Univ. of Pennsylvania, 675 A.2d 264, 267 (1996)). The court stated that a preliminary injunction and a permanent injunction were different in kind. See id. at 397. It also stated that a permanent injunction is binding for purposes of a final adjudication, whereas a preliminary injunction is not. See id.

The court concluded that "the fact that the judge presiding over the preliminary injunction stage of proceedings indicated that [Buck Hills] would be successful in its petition for a permanent injunction did not set a precedent for the replacement judge to follow." Id. at 397. It added that "[i]n contrast to a permanent injunction, a decision regarding a preliminary injunction is not binding for purposes of a final adjudication. Accordingly, this claim fails." Id. (citation omitted).

Next, the court considered Buck Hills' argument that the trial court incorrectly interpreted the word "poultry" contained in the Poultry Covenant, and the trial court erred when it allowed the appellees to keep poultry on their property, despite its determination that the chickens were poultry. See id. Buck Hills asserted that the language contained in the Poultry Covenant that prohibited "' . . . poultry of any kind . . .'" was unambiguous and since the trial court determined that the chickens were poultry, the appellees were prohibited from maintaining the chickens on the property. See id.

The court explained that in determining whether the Poultry Covenant prohibited the appellees from keeping chickens on their property, it had to "consider the express language of the Poultry Covenant. See id. (citation omitted). The Poultry Covenant provided that "'[n]o livestock, animals or poultry of any kind shall be raised, bred or kept on any Existing Property except dogs . . . and other household pets . . . .'" Id. The court stated that the word "'poultry' is understood to mean 'all types of chickens'" and that "the words 'poultry' and 'chicken' are often interchangeable in everyday use and in case law.'" Id. (citations omitted). The court ruled that based on the plain meaning of the Poultry Covenant "we find that the poultry prohibition contained in the restrictive covenant is quite clear, and was meant to prohibit Buck Hills Falls community members from maintaining chickens of any kind for any reason." Id. It therefore concluded that "the trial court made an error of law, and that by keeping chickens, Appellees are in violation of the restrictive covenant prohibiting poultry on their property." Id.

Buck Hills also argued in the alternative that "even if the court did not find poultry to be strictly prohibited, it erred by failing to make any distinction between the definitions of 'pet' and 'household pet' under the terms of the Poultry Covenant." Id. at 397-98. The appellees asserted that because their children treated the chickens as pets, they should be considered "household pets" under the Poultry Covenant. See id. at 398. The court rejected the appellees argument, stating that "the language prohibiting poultry makes it clear that chickens were not intended to be included in the covenant's meaning of the phrase 'household pet.'" Id. Thus, it concluded that the trial court erred when it ruled that the appellees' chickens were "household pets." Id.

Finally, the court examined Buck Hills' argument that "the trial court erred in failing to enforce the restriction against chicken houses contained in the Chicken House Covenant." Id. The appellees argued that the Chicken House Covenant only prohibited "'outbuildings' on the property, and since their structure is attached to the house, it is exempt from the prohibition." Id. The language in the covenant at issue stated that "' . . . no barn, stable, cowshed, chicken house . . . shall . . . be erected or constructed upon any part of the hereby granted premises.'" Id.

The court rejected the appellees' argument, stating that "the ordinary usage and plain meaning of the phrase 'chicken house,' as well as common sense, require that a structure built to house chickens or poultry be defined as a 'chicken house.'" Id. It added that "[w]e need not decide what the parties may or may not have meant when using the word 'outbuilding' when the definition of 'chicken house' is obvious." Id. It therefore concluded that because the Chicken House Covenant clearly stated that chicken houses were prohibited on the property, the appellees "are in violation of the covenant prohibiting the construction of a chicken house on their property." Id.

The case was decided on January 28, 2002; this summary was posted April, 2003