concurring and dissenting.
Respectfully I must dissent from that part of the majority opinion that finds that the trial judge erred when he concluded that the kennel was a preexisting nonconforming use limited to twenty-eight hounds, and I further dissent from the majority’s holding that the Appellants are entitled to an expansion of their pack of foxhounds as a nonconforming use by a special exception under Section 1301.b of the Township’s zoning ordinance.
First, the matter of a special exception was never, at any time, raised by the Appellants as an issue and was, therefore, waived. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Fawber v. Dauphin County Tax Claim Bureau, 117 Pa. Commonwealth Ct. 521, 543 A.2d 1288, petition for allowance of appeal denied, 520 Pa. 609, 553 A.2d 970 (1988). It was not the subject of the Appellants’ appeal to the zoning hearing board (Board) although Appellants did ask, inter alia, for a variance. Moreover, neither in their appeal to the common pleas court nor in their brief to this Court do the Appellants ever assert that they are entitled to a special exception. Quite the contrary, the Appellants, in support of their argument that the Board made an error by limiting the pack of hounds as a nonconforming use to twenty-eight hounds, argued forcefully that “it is the kennel which is the nonconforming use, not the number of dogs,” (Appellants’ brief at 11) and that “even as a nonconforming use, [meaning the barn], appellants should not be limited in the number of dogs, provided they do not expand the floor area.” (Appellants’ brief at 12.)
Quite simply, the Appellants never applied for a special exception, under Section 1301.b of the ordinance, which is *496granted or denied by the Board1 (as distinguished from a conditional use, which is granted or denied by the Township Board of Supervisors2), and it was not an issue the Board considered.
But, even had it been an issue, I would nonetheless have to agree with the Appellants, that Section 1301.b concerning an “extension” of a nonconforming use, in this case, applies to the physical property of the barn, not to the expansion of the pack of foxhounds. In this latter regard, in answer to the Appellants’ argument before the trial court that the expansion of the kennel to include more than twenty-eight hounds was “authorized as a product of natural growth of a nonconforming use,” because, “any expansion in number was certainly a natural expansion since it was done essentially through the birth of additional pups,” Judge Smith cogently wrote:
This argument is based on a misinterpretation of the ‘natural expansion’ doctrine. Appellants appear to be suggesting that the vague adjective, ‘natural,’ refers to any activity that takes place pursuant to the primordial ‘call of nature.’ Although we concede that the call of nature may at times be compelling, the law does not in all instances recognize it as compulsory, least of all when nature is calling creatures whose activities are subject to the control of a responsible human being. Rather, the somewhat inappropriately named ‘natural expansion’ doctrine only applies to expansions which are ‘absolutely *497necessary’ to accommodate changed circumstances. Unfortunately, the kind of ‘necessity’ warranting application of the doctrine does not appear to have ever been precisely defined, but our review of the case law concerning the doctrine reveals that without exception the doctrine has been applied only to cases involving growth of commercial uses, in order to accommodate ‘natural’ increases in business competition and demand for modernization. See Ryan, Pennsylvania Zoning Law and Practice, Section 7.4.1, and cases cited therein. We find no showing of an absolute necessity for additional hounds in this non commercial kennel. Slip op. at 3-4 (citations and footnote omitted).
I add only, that Section 1301.b of the ordinance, by also limiting the “extension” of a nonconforming use to “fifty (50) percent of ... the ... processing capacity of such use” (Emphasis added.) cannot, by any stretch of the imagination, cover the natural expansion of a pack of foxhounds, regardless of their fecundity. I would, therefore, affirm the judgment of the trial court.
. Under Section 202 of the zoning ordinance, Definition of Terms, a “Special Exception" is defined as follows:
SPECIAL EXCEPTION: The granting of a modification of the provisions of this Ordinance as authorized in specific instances listed, and under the terms, procedures, and conditions prescribed herein. Special exceptions are administered by the Zoning Hearing Board.
. Under Section 202 of the zoning ordinance, Definition of Terms, a “Conditional Use” is defined as follows:
CONDITIONAL USE: A use which is not appropriate to a particular zoning district as a whole, but which may be suitable in certain localities within the district only when specific conditions and factors prescribed for such cases within this Ordinance are present. Conditional uses are allowed or denied by the Board of Supervisors after recommendations by the Planning Commission.