C.A. Leinberger v. A.G. Stellar, Trustee of the D.E. Stellar Revocable Trust ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cheri Ann Leinberger, Matthew S. :
Leinberger, Daniel P. Seneca, Kathleen :
A. Seneca and William J. Necker, :
Appellants :
: No. 1620 C.D. 2017
v. : Argued: September 18, 2018
:
Anthony G. Stellar, as Trustee of the :
Deborah E. Stellar Revocable Trust :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge (P)
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: October 11, 2018
In this appeal, Neighbors1 ask whether the Court of Common Pleas of
Lehigh County2 (trial court) erred in granting, in part, the post-trial motions filed by
Anthony G. Stellar, Trustee of the Deborah E. Stellar Revocable Trust (Landowner),
following a non-jury trial on Neighbors’ zoning enforcement action under Section
617 of the Pennsylvania Municipalities Planning Code3 (MPC). Through their
enforcement action, Neighbors sought to enjoin Landowner from utilizing a cabin
on his property for short-term rentals. Relying on this Court’s recent precedent, the
trial court ultimately determined that the Lynn Township Zoning Ordinance of 1982
1
Neighbors are Cheri Ann Leinberger, Matthew S. Leinberger, Daniel P. Seneca, Kathleen
A. Seneca, and William J. Necker.
2
Judge J. Brian Johnson presided.
3
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10617.
(zoning ordinance) did not prohibit short-term rental use; thus, it declined to enjoin
Landowner from renting his property on a short-term basis. Upon review, we affirm.
I. Background
Landowner owns a 48.1-acre property located at 7963 Springhouse
Road, New Tripoli, Lynn Township (Township), Pennsylvania (subject property). A
portion of the subject property lies within the Township’s Blue Mountain
Preservation (BMP) zoning district and a portion of the subject property lies within
the Township’s Agriculture Preservation (AP) zoning district. Both of these districts
permit a limited number of uses, including single-family detached dwellings. The
subject property is improved with a single-family detached dwelling, a cabin. The
dwelling on the subject property is rented to members of the public approximately
30% of the year and is used by or available for use by Landowner’s family for the
remaining 70% of the year. Neighbors own homes near the subject property.
In December 2015, Neighbors filed a two-count complaint against
Landowner in the trial court. In Count I, relying on the private enforcement
provision in Section 617 of the MPC, Neighbors sought to enjoin Landowner’s use
of his property in a manner that violated the zoning ordinance. Specifically,
Neighbors alleged Landowner used the dwelling on the subject property for short-
term rentals, including advertising on the internet for short-term rentals for vacations
and getaways. Neighbors averred this use did not qualify as a permitted use in the
zoning districts in which the subject property lies. Through Count II of the
complaint, Neighbors stated a cause of action for private nuisance. Neighbors’ suit
proceeded to a two-day non-jury trial in February 2017.
2
After trial, the trial court issued a decision in which it enjoined
Landowner from using the dwelling on the subject property for short-term rentals.
In so doing, it found that the dwelling on the subject property is advertised on the
internet for short-term rentals for parties, vacations and, generally, for getaways.
Since at least 2010, Landowner rented the dwelling on the subject property for short-
term rentals. Guests rent the dwelling on the subject property for various lengths of
time, anywhere from one night to a few weeks. Additionally, Landowner’s family
occasionally reserves the dwelling on the subject property for personal events
throughout the year. The dwelling on the subject property is also used for impromptu
visits by Landowner’s family and friends on days it is not previously reserved for
renters or a family event for Landowner.
Ultimately, the trial court concluded Landowner’s short-term rentals
violated the zoning ordinance as the use of the dwelling on the subject property did
not satisfy the definition of a “single-family detached dwelling as set forth in the
[zoning] [o]rdinance.” Tr. Ct., Slip Op., 6/7/17, at 22. In particular, the trial court
first explained:
[Neighbors] allege a violation of Section 925 [of the
zoning ordinance4]. However, they do not appear to
challenge the components of this section specifically.
That is, they do not argue that the building located on the
[subject property] is not a structure designed to be
occupied as a single housekeeping unit. Notwithstanding
this lack of challenge, we will analyze this question. The
evidence establishes that there is one building located on
the [subject property], that there are not multiple
housekeeping units in the building, that it is not an
apartment or condominium building, and that it is a
4
Section 925 of the zoning ordinance defines “dwelling unit” as: “Any structure, or part
thereof, designed to be occupied as living quarters as a single housekeeping unit.” Id.
3
structure designed to be occupied as a single housekeeping
unit. The evidence clearly establishes that the only
building located on the [subject property] is a dwelling
unit that meets the definition of Section 925 [of the zoning
ordinance].
[Neighbors] allege a violation of Section 925.3 [of
the zoning ordinance5]. However, they do not appear to
challenge all of the components of this section. They do
not argue that the building located on the [subject
property] is not a dwelling unit on a permanent foundation
… or that it is not designed and constructed as a residence
for one (1) family, which does not have a vertical wall in
common with any other building. The only component of
this section that [Neighbors] appear to challenge is the use
of the word ‘family.’ They argue that the definition of the
word ‘family’ in Section 926 of the [zoning] [o]rdinance[6]
and as it is used in Section 925.3 [of the zoning ordinance]
precludes the use of the [dwelling on the subject property]
for short term rentals.
In light of these definitions, whether the [dwelling
on the subject property] qualifies as a ‘single[-]family
detached dwelling’ ultimately turns on the meaning of
‘family.’ That is, only if the residents of the [dwelling on
the subject property] are a ‘family’ for purposes of the
[zoning] [o]rdinance can the [dwelling on the subject
property] qualify as a ‘single[-]family detached dwelling’
and thereby continue to allow short-term rentals.
The evidence demonstrates that, whether the people
using it are the family and friends of [Landowner], or are
strangers that pay rent, the [dwelling on the subject
property] is used by individuals who live independently
5
Section 925.3 of the zoning ordinance defines “Dwelling unit – single[-]family detached,”
in relevant part as “[a] dwelling unit on a permanent foundation … designed and occupied as a
residence for one (1) family ….” Id.
6
Section 926 of the zoning ordinance defines “family” as: “One or more individuals living
independently as a single housekeeping unit and using cooking facilities and certain rooms in
common. A FAMILY [sic] shall not be deemed to include the occupants of a college dormitory
or residential club.” Id.
4
as a single housekeeping unit and use cooking facilities
and certain rooms in common. This appears to be due to
the fact that the people who use the [dwelling on the
subject property] do so as a group and the fact that the
structure and characteristics of the building do not provide
for separate living quarters. Thus, the people who use the
[dwelling on the subject property] meet the definition of
‘family’ under the [zoning] [o]rdinance.
Id. at 14-15.
However, the trial court determined, based on its review of the Supreme
Court’s decisions in Albert v. Zoning Hearing Board of North Abington Township,
854 A.2d 401 (Pa. 2004) and Appeal of Miller, 515 A.2d 904 (Pa. 1986) and this
Court’s decision in Marchenko v. Zoning Hearing Board of Pocono Township, 147
A.3d 947 (Pa. Cmwlth. 2016), the meaning of the word “family” in the context of a
zoning ordinance necessarily includes components of stability and permanency.
Here, the trial court stated, “[w]hile the groups of people who use [the
dwelling on the subject property] periodically, whether they are the family of
[Landowner] or renters, appear to function as a group or family, they are transient –
there is no permanency to their residing [i]n the [dwelling on the subject property].”
Tr. Ct., Slip Op., 6/7/17, at 22. The trial court determined that this level of instability
and transience was incompatible with the single-family concept. Additionally, the
trial court noted, to the extent Landowner rents the dwelling on the subject property
to third parties on a short-term basis, it was clear that a profit motive was the basis
for that use, which is inconsistent with single-family dwelling use. However, the
trial court noted, to the extent Landowner’s family uses the dwelling on the subject
property, profit motive is not at issue. For all of these reasons, the trial court
5
determined Landowner’s use of the dwelling on the subject property did not meet
the zoning ordinance’s definition of a “single[-]family detached dwelling.” Id.In addition, the trial court found in favor of Neighbors on their nuisance
claim;7 as a result, it set forth detailed parameters for activities at the dwelling on the
subject property. Landowner filed post-trial motions.
The trial court subsequently issued an opinion on post-trial motions in
which it reversed its trial holding on the short-term rental issue. In particular, relying
primarily on Shvekh v. Zoning Hearing Board of Stroud Township, 154 A.3d 408(Pa. Cmwlth. 2017) (where zoning ordinance did not prohibit use of single-family
dwelling for short-term vacation rentals, zoning board erred in upholding
enforcement notice against landowner; use was not a “tourist home” under relevant
ordinance definition), the trial court determined Landowner’s use of the subject
property was not prohibited by the zoning ordinance.
More specifically, the trial court determined, the zoning ordinance
contained no prohibition on short-term rentals. The trial court further determined
the subject property met the definitions of “single[-]family detached dwelling” in
Section 925.3 of the zoning ordinance and “dwelling unit” in Section 925 of the
zoning ordinance. Additionally, the trial court determined the individuals who stay
at the subject property met the definition of “family” in Section 926 of the zoning
ordinance. The trial court noted that the fact that the owner of the subject property
never lives on the subject property because the owner is a trust rather than an
7
To that end, the trial court found that individuals using the subject property caused
significant noise, including firing weapons, setting off fireworks, and playing loud music.
6
individual was an important factor, but not the controlling factor. Thus, the trial
court concluded the use of the subject property for short-term rentals was consistent
with the zoning ordinance. As a result, the trial court granted Landowner’s post-trial
motion, in part, concluding Landowner was not enjoined from allowing anyone to
use the subject property for short-term rentals, whether paid or unpaid. Additionally,
the trial court denied Landowner’s post-trial motions relating to the trial court’s
disposition of Neighbors’ nuisance claim. Neighbors appealed to this Court.8
II. Issue
On appeal,9 Neighbors assert the trial court erred in reversing its initial
holding that Landowner’s use of his rural, single-family residentially-zoned
property, as a for-profit business venture involving short-term transient rentals,
violated the zoning ordinance.
III. Discussion
A. Contentions
Neighbors first argue the subject property is located in a rural area of
the Township, at the base of the Blue Mountain, overlapping two zoning districts,
the BMP district and the AP district. Neighbors assert that, among the limited uses
permitted in those districts, the only one that could possibly apply to Landowner’s
use of the subject property is a single-family dwelling use.
8
Landowner did not cross-appeal from that part of the trial court’s order that denied his
post-trial motions.
9
Our review of a trial court’s decision denying a request for equitable relief is limited to
considering whether the trial court erred as a matter of law or abused its discretion. Woodward
Twp. v. Zerbe, 6 A.3d 651 (Pa. Cmwlth. 2010) (en banc).
7
Further, Neighbors contend, under the zoning ordinance’s definitions
of “single-family detached dwelling,” “dwelling unit,” and “family,” the individuals
using the subject property must qualify as “one or more individuals living
independently as a single housekeeping unit and using cooking facilities and certain
rooms in common. …” Section 926 of the zoning ordinance. Neighbors maintain
this definition cannot be met as a matter of law here in light of the transient, for-
profit nature of the occupancies of the subject property, because those occupancies
cannot qualify as a “single housekeeping unit” under Albert. See Reproduced
Record (R.R.) at 177a-201a (Table of Rental Agreements from October 2010
through June 2016, showing significant rental amounts received from renters
procured through several brokers, for what were largely three or four day rentals).
Further, Neighbors argue, this Court’s post-Albert decisions in Slice of
Life, LLC v. Hamilton Township Zoning Hearing Board, 164 A.3d 633 (Pa. Cmwlth.
2017), appeal granted, 180 A.3d 367 (Pa. 2018), Shvekh, Marchenko, and Reihner
v. City of Scranton Zoning Hearing Board, 176 A.3d 396 (Pa. Cmwlth. 2017), are
either factually distinguishable, or, as in the case of Slice of Life, may be reversed
on appeal by the Supreme Court.
Neighbors assert the issue before this Court is controlled by Albert.
They direct this Court’s attention to what they contend are the following undisputed
facts. First, the BMP and AP districts only allow a limited number of uses, none of
which include operation of a short-term rental business for vacations or weekend
getaways. Neighbors do not argue that Landowner is prohibited from renting the
subject property as a single-family residence. Rather, they assert, leasing the subject
8
property under several-day long booking agreements, to unrelated strangers, does
not qualify as a single-family residential use, either in the legal or practical sense of
the phrase.
To that end, Neighbors contend, a “single[-]family detached dwelling”
is defined in Section 925.3 of the zoning ordinance as: “A dwelling unit on a
permanent foundation … designed and constructed as a residence for one (1) family,
which does not have a vertical wall in common with any other building.” Appellants’
Br. at 13. Neighbors further maintain Section 925 of the zoning ordinance defines
a “dwelling unit” as: “Any structure, or part thereof, designed to be occupied as
living quarters as a single housekeeping unit.” Id. They also argue Section 926 of
the zoning ordinance defines “family” as “one or more individuals living
independently as a single housekeeping unit and using cooking facilities and certain
rooms in common. A FAMILY [sic] shall not be deemed to include the occupants
of a college dormitory or residential club.” Id.Here, Neighbors assert, Landowner has not used the subject property
“as a residence for one (1) family,” as required to meet the definition of a
“single[-]family detached dwelling” under Section 925.3 of the zoning ordinance.
Instead, they contend, since at least 2010, Landowner used the subject property for
vacation rentals, involving a mix of temporary users whose actual residence is
located elsewhere. Neighbors contend it is inconceivable that any of these vacation
renters are moving furniture, clothing or other belongings into the subject property
when they come there to visit; nor are they “living independently as a single
housekeeping unit”—as required to meet the definition of “family” in Section 926
9
of the zoning ordinance—“when these transient, short-term occupants come and go
as they please.” Appellants’ Br. at 14.
Neighbors further argue that in Albert, a zoning officer initially
concluded that the proposed group home at issue in that case did not qualify as a
“single-family detached dwelling” under the ordinance. Id. at 402. The zoning
board reversed, holding the facility qualified as a “single-family detached dwelling.”
The common pleas court affirmed. On further appeal, this Court affirmed.
Neighbors assert the issue before the Supreme Court was whether “the
Commonwealth Court erred by applying an over-inclusive definition of ‘family’ in
concluding that the [group home] qualifies as a ‘single-family detached dwelling’
under the [o]rdinance.” Id. at 404. In reversing this Court’s decision, Neighbors
contend, the Supreme Court—even after acknowledging that zoning ordinances are
to be liberally construed and interpreted broadly to permit a landowner the broadest
use of his land—still concluded the zoning board erred in allowing the challenged
use. Neighbors assert it is clear from Albert that a profit motive, which exists here,
is incompatible with the single-family concept. Perhaps more importantly,
Neighbors contend, in order for a “family” to exist, which is an obvious predicate to
a “single-family residential use,” there must be a degree of stability of the residents,
which is directly inconsistent with the facts established at trial here, including a chart
showing the list of rentals for almost six years. R.R. at 176a-201a. Indeed,
Neighbors maintain, given that the transient occupants of the subject property do not
qualify as a “family,” and the clear profit motive, the use of the subject property
10
cannot qualify as a single-family dwelling under the zoning ordinance as a matter of
law.
B. Analysis
“Where a statute or ordinance defines a word or phrase, the court is
bound thereby although such definitions may be different from ordinary usage.”
Slice of Life, 164 A.3d at 640 (citing Hughes v. Sch. Dist. of Pittsburgh, 108 A.2d
698 (Pa. 1954)). Zoning ordinances are presumptively constitutional and valid. Tri-
County Landfill, Inc. v. Pine Twp. Zoning Hearing Bd., 83 A.3d 488 (Pa. Cmwlth.
2014). “However, because restrictions imposed by zoning ordinances are in
derogation of a landowner’s property rights, they must be strictly construed.”
Newtown Square East, L.P. v. Twp. of Newtown, 101 A.3d 37, 51 (Pa. 2014)
(citation omitted).
“[G]enerally[,] a zoning ordinance should be construed in a manner that
does not, by mere implication, fetter a landowner’s reasonable use of his land.” Hess
v. Warwick Twp. Zoning Hearing Bd., 977 A.2d 1216, 1221 (Pa. Cmwlth. 2009).
“The permissive widest use of the land is the rule and not the exception, unless
specifically restrained in a valid and reasonable exercise of the police power.” Fidler
v. Zoning Bd. of Adjustment of U. Macungie Twp., 182 A.2d 692, 695 (Pa. 1962).
Consistent with these principles, Section 603.1 of the MPC states:
In interpreting the language of zoning ordinances to
determine the extent of the restriction upon the use of the
property, the language shall be interpreted, where doubt
exists as to the intended meaning of the language written
and enacted by the governing body, in favor of the
11
property owner and against any implied extension of the
restriction.[10]
Thus, where doubt exists, or when there is an ambiguity in the
ordinance, “the language of a zoning ordinance should be interpreted in favor of the
landowner and against any implied extension of restrictions on the use of one’s
property.” Adams Outdoor Advert., L.P. v. Zoning Hearing Bd. of Smithfield Twp.,
909 A.2d 469, 484 (Pa. Cmwlth. 2006). As a result, “zoning ordinances are to be
liberally construed to allow the broadest possible use of land.” Ligo v. Slippery
Rock Twp., 936 A.2d 1236, 1238 (Pa. Cmwlth. 2007); see also Riverfront Dev. Grp.,
LLC v. City of Harrisburg Zoning Hearing Bd., 109 A.3d 358 (Pa. Cmwlth. 2015).
Mindful of these principles, we consider the relevant provisions of the
zoning ordinance. As noted above, the subject property lies in the Township’s BMP
and AP zoning districts, both of which permit a “single[-]family detached dwelling.”
Sections 332.6, 342.11 of the zoning ordinance. The zoning ordinance defines a
“dwelling unit” as: “Any structure, or part thereof, designed to be occupied as living
quarters as a single housekeeping unit.” Section 925 of the zoning ordinance
(emphasis added). It also defines “Dwelling unit – single family detached,” in
relevant part as “[a] dwelling unit on a permanent foundation … designed and
occupied as a residence for one (1) family ….” Section 925.3 of the zoning
ordinance. In turn, the zoning ordinance defines “family” as: “One or more
individuals living independently as a single housekeeping unit and using cooking
facilities and certain rooms in common. A FAMILY [sic] shall not be deemed to
include the occupants of a college dormitory or residential club.” Section 926 of the
zoning ordinance.
10
Section 603.1 was added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10603.1.
12
Construing and applying these provisions here, the trial court ultimately
explained:
First, there is no prohibition against renting in the
[zoning] [o]rdinance. The [zoning] [o]rdinance further
explains what uses are permitted on the [subject property].
The use at issue in our case is whether the [dwelling on the
subject property] qualifies as a single[-] family detached
dwelling.
A ‘single[-]family detached dwelling’ is defined in
Section 925.3 of the [zoning [o]rdinance[.] … The
[dwelling on the subject property] meets this definition.
A ‘dwelling unit’ is defined in Section 925 of the
[zoning] [o]rdinance[.] … The [dwelling on the subject
property] meets this definition.
‘Family’4 is defined in Section 926 of the [zoning]
[o]rdinance[.] … Although less clear, the individuals
staying at the [subject property] appear to fit this broad
definition of ‘family.’ The fact that the owner of the
[dwelling on the subject property] never lives [i]n the
[dwelling on the subject property], since the owner is a
trust rather than an individual, is an important factor but is
not the controlling factor.
As explained by the Pennsylvania Commonwealth
Court in Shvekh, this Court must broadly interpret the
[zoning] [o]rdinance and not strain to disallow the rental
activity. …
There is no prohibition against short term rentals in
the [zoning] [o]rdinance. The [subject property] meets the
definitions of ‘single[-]family detached dwelling’ set forth
in Section 925.3 of the [zoning] [o]rdinance and the
definition of ‘dwelling unit’ set forth in Section 925 of the
[zoning] [o]rdinance. The individuals who stay at the
[subject property] meet the definition of ‘family’ set forth
in Section 926 of the [zoning] [o]rdinance. Thus, the use
13
of the [subject property] for short term rentals is consistent
with the [zoning] [o]rdinance.
4
In [Albert], the Court was required to determine
the meaning of the term ‘family’ because that term
was not defined in the ordinance and the question of
whether the property qualified as a single-family
detached dwelling ultimately turned on the meaning
of ‘family.’
Tr. Ct., Slip Op., 10/12/17, at 7-9. We discern no error in the trial court’s analysis.
More particularly, the dwelling on the subject property meets the
zoning ordinance’s definition of a “dwelling unit” because it is a structure designed
to be occupied as living quarters as a single housekeeping unit. Section 925 of the
zoning ordinance. The structure at issue here, which is approximately 3,000 square
feet and is “set up as a luxury vacation home[,]” is designed to be occupied as living
quarters as a single housekeeping unit. R.R. at 465a, 467a. To that end,
[t]he house itself is a contemporary set-up. There’s [sic]
three bedrooms and two full baths on the main living floor
as well as the kitchen and family space. There’s a loft area
with one room overlooking the great room and there’s a
finished walk-out lower level with other rooms for a full
bathroom and other, you know, open-type areas for
anything.
R.R. at 467a.
Nevertheless, Neighbors disagree that the dwelling meets the definition
of “Dwelling unit – single[-]family detached,” which is defined as a dwelling unit
on a permanent foundation designed and occupied as a residence for one family.
Section 925.3 of the zoning ordinance. They assert the dwelling is not designed and
14
occupied as a residence for one family because of the transient, for-profit nature of
the short-term rentals.
Contrary to Neighbors’ assertions, the zoning ordinance broadly
defines “family” as one or more individuals living independently as a single
housekeeping unit and using cooking facilities and certain rooms in common.
Section 926 of the zoning ordinance. Here, Landowner rents the entire dwelling on
the subject property to third parties 30% of the year with a maximum of eight
occupants, and Landowner’s family uses the dwelling on the subject property for
“some portion of the remaining 70% of the year.” Tr. Ct., Slip Op., 6/7/17, at 21;
R.R. at 473a-76a.
In four decisions rendered over the last two years, this Court permitted
short-term rentals of single-family dwellings in the absence of specific language in
the zoning ordinances at issue prohibiting that activity. Indeed, “this Court has ruled
in several recent decisions that a zoning hearing board misconstrued the terms of its
zoning ordinance to prohibit property owners from using online platforms to offer
their homes as vacation or short-term rentals.” Reihner, 176 A.3d at 401. Thus, the
trial court here correctly determined that, because the zoning ordinance does not
prohibit Landowner’s short-term rentals of the single-family dwelling on the subject
property, such use is permissible. A review of this Court’s recent decisions in zoning
cases involving short-term rentals is helpful.
First, in Marchenko, the homeowner owned a single-family dwelling in
a low-density residential zoning district. The township’s zoning officer issued the
15
homeowner a notice of violation, indicating she was using the dwelling for
commercial purposes, i.e., vacation rentals, in violation of the zoning ordinance. The
homeowner appealed to the zoning hearing board (ZHB). Before the ZHB, the
homeowner testified she considered the dwelling her primary residence because she
received mail there, did not own other property, and listed the dwelling’s address on
her driver’s license. The homeowner explained she typically rented the dwelling on
weekends, when she worked and stayed with a friend out-of-state. In the first 185
days the homeowner owned the dwelling, she resided at the property for 114 days
(62% of the time) and rented it by listing it on the internet for 71 days (38% of the
time).
The ZHB denied the homeowner’s appeal of the violation notice. It
noted that, although the zoning ordinance defined the term single-family dwelling,
neither that term nor any specifically-defined term in the ordinance addressed the
short-term rental of single-family dwellings to a series of different families, where
only one family lived at the dwelling during a rental period. The ZHB determined
the homeowner’s rental activity constituted a lodge use, which was not permitted in
the low-density residential district. The common pleas court affirmed, concluding
the ZHB did not err in declining to interpret the term single-family dwelling to
include successive, short-term occupancies by different families. It stated that the
Supreme Court’s decision in Albert established a policy against transient uses in
districts zoned for single-family dwellings. The common pleas court also agreed
that the homeowner’s use of the dwelling constituted a prohibited lodge use. On
further appeal, this Court reversed, stating:
First, [the homeowner] argues that the ZHB erred in
concluding that her short-term rentals of the [p]roperty are
16
prohibited in the [low-density residential] [d]istrict and not
consistent with the single-family dwelling use. We agree.
…
Here, [the homeowner] uses the [p]roperty as her
primary residence, resides at the [p]roperty a majority of
the time, and is the only family occupying the [p]roperty
when she resides there. Thus, the composition of the
family living at the [p]roperty is not purely transient, and
the [p]roperty is primarily used as a single-family dwelling
by [the homeowner]. The ZHB did not address [the
homeowner’s] personal use of the [p]roperty, concluding
only that [the homeowner’s] rental activity, wherein only
one family occupies the [p]roperty at a time, is prohibited
in the [low-density residential] [d]istrict. However, the
[zoning] [o]rdinance’s definition of ‘single-family
dwelling’ does not prohibit this type of rental activity, nor
is the rental activity encompassed by any other use defined
by the [zoning] [o]rdinance. Under these circumstances,
the ZHB should have broadly interpreted the term ‘single-
family dwelling’ to allow this rental activity rather than
straining to designate the activity as a prohibited lodge
use, which the [zoning] [o]rdinance does not define.
Therefore, the ZHB erred in concluding that [the
homeowner’s] short-term rentals of the [p]roperty are
prohibited in the [low-density residential] [d]istrict.
Marchenko, 147 A.3d at 950-51 (footnote omitted).
This Court further explained that Albert was distinguishable given that
the homeowner used the property as her primary residence, resided at the property a
majority of the time and was the only family occupying the property when she
resided there. We stated:
These facts distinguish the present case from Albert,
where all of the residents of a proposed halfway home
would reside there for an average of two to six months,
and the entire population of the halfway house would turn
over up to six times per year. 854 A.2d at 410. Under
17
these circumstances, the Pennsylvania Supreme Court
concluded that the residents would be purely transient and,
thus, could not constitute a ‘family’ for purposes of a
single-family dwelling use. Id. at 410-11.
Marchenko, 147 A.3d at 950 n.5.
Next, in Shvekh, the homeowner owned a single-family home in the
township’s special and recreational (S-1) zoning district. The township’s zoning
officer issued a notice of violation, stating that the homeowner used the dwelling as
a “tourist home,” which was not permitted in the district. Id. at 410. The homeowner
appealed to the ZHB. Before the ZHB, the homeowner’s daughter testified that her
family purchased the dwelling with the intent to occupy it as the family’s primary
residence; however, she was unable to do so because she and her husband were
unable to sell their other home. The homeowner’s daughter explained that she listed
the home for rent on the website Vacation Rentals By Owner (VRBO), which
advertises vacation homes. The lease agreement for the rentals required a two-night
minimum stay, and no meals were provided. The homeowner’s daughter testified
she and her family occupied the home approximately one week per month, when it
was not rented. During the 12 months prior to the hearing, she rented the dwelling
20 to 25 times. The ZHB denied the homeowner’s appeal, finding: the homeowner
engaged in short-term rentals of the home on a continuous basis; neither the
homeowner nor her daughter claimed the home as a primary residence; and the home
was rented to groups of more than three persons unrelated by blood or marriage. The
ZHB concluded that using the home for short-term, transient rentals was more
typical of a tourist home. Because a tourist home was not permitted in the S-1
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district, the ZHB determined the use violated the zoning ordinance. In so doing, it
relied on Albert. The homeowner appealed, and the common pleas court affirmed.
On further appeal, this Court reversed. This Court determined that the
zoning ordinance did not prohibit the owner of a single-family home from renting it
out from time-to-time for vacationers. Speaking through President Judge Leavitt,
we further explained:
AirBnB has expanded the possible uses of a single-
family dwelling, and the [t]ownship can address these new
uses in the [z]oning [o]rdinance. However, amendments
cannot be effected by shoe-horning a use that involves
renting an entire single-family home to vacationers into
the definition of ‘tourist home.’ The [p]roperty meets the
definition of single-family residence because it has been
‘designed for or occupied exclusively for one family.’
ZONING ORDINANCE, Article II, § 2.266(a)(emphasis
added)[.] The vacation rental of the entire home bears no
relation to the bedroom-by-bedroom rental that is the
hallmark of a tourist home, as the [z]oning [o]fficer herself
acknowledged. We agree with [the homeowner] that the
[ZHB] sought to expand the definition of ‘tourist home’ to
include any short term rental, without any support in the
language of the [z]oning [o]rdinance.
Shvekh, 154 A.3d at 415 (record citation omitted).
This Court further stated:
Albert is distinguishable. It concerned a halfway
house used in a ‘purely transient’ way. The owners did
not rent the entire house to one group for a vacation
purpose but, rather, bedrooms to different individuals.
Albert is also distinguishable because the halfway house
required a license. Here, by contrast, the [ZHB] did not
suggest that using a single-family dwelling for short-term
vacation rentals requires a license of any type. Further, the
[p]roperty is not used in a ‘purely transient’ way because
19
it is occupied at least once a month by the owners and their
families.
Shvekh, 154 A.3d at 413 (footnote omitted).
Thereafter, in Slice of Life, the property owner, who lived out-of-state,
owned the property, which was improved with a single-family home, through a
limited liability company. The owner rented the home for short-term stays as part
of a larger business enterprise involving numerous properties. The home was
located in a residential zoning district that only permitted single-family dwellings.
The township’s zoning officer issued the owner an enforcement notice, indicating
the owner used the dwelling as a hotel or for transient lodging in violation of the
zoning ordinance. The property owner appealed, and the ZHB denied the appeal.
The common pleas court affirmed. On further appeal, this Court reversed, stating:
While the facts in Shvekh and Marchenko are
distinguishable because the owners occupied the homes a
portion of the time, the controlling law is not. In
Marchenko, the zoning ordinance did not prohibit the
owner of a ‘single[-]family dwelling’ from renting it out.
Marchenko, 147 A.3d at 950-51. In Shvekh, the [ZHB]
sought to expand the definition of ‘tourist home’ to include
any short term rental, without any support in the language
of the zoning ordinance. This Court held that a vacation
rental of [the] homeowner’s single-family home did not
meet the definition of an improper ‘tourist home’
contained in the township’s zoning ordinance. [Shvekh,
154 A.3d at 408, 410-11, 413]. Referencing Marchenko,
we noted that occupation of the premises was an important
but not controlling factor. Id. at 413. Enterprises such as
AirBnB have expanded the possible uses of single-family
dwellings and a township can address such uses in the
zoning ordinance. Id. at 415. Amendments, however,
‘cannot be effected by shoe-horning a use that involves
20
renting an entire single-family home to vacationers into
the definition of “tourist home.”’ Id.
Consequently, the [ZHB] here was required to apply
the terms of the [o]rdinance as written, rather than
deviating from those terms based on unexpressed policies
of the [t]ownship regarding permitted uses. The [ZHB’s]
function is only to enforce the zoning ordinance in
accordance with the law. Ludwig [v. Zoning Hearing Bd.
of Earl Twp., 658 A.2d 836 (Pa. Cmwlth. 1995)]; see also
Shvekh. [The] [a]ppellants have proven that ambiguity
exists in the language of the [o]rdinance. Because of that
ambiguity, we are required to interpret the language of the
[o]rdinance in favor of the landowner and against any
implied extension of restrictions on the use of one’s
property. Shvekh; Marchenko; Adams Outdoor
Advertising, L.P.
Slice of Life, 164 A.3d at 641-42. Additionally, we declined to accept the ZHB’s
assertions that Albert was controlling, emphasizing that the ordinance in Albert did
not define the term “family,” which led the Court to examine and incorporate the
generally understood meaning of that term into the ordinance in that case. Slice of
Life, 164 A.3d at 638.
Most recently, in Reihner, the homeowners owned and resided at a
single-family dwelling in the city’s medium-low density residential zoning district,
which permitted various residential uses, including single-family detached and semi-
detached dwellings and group homes. The city’s zoning officer issued the
homeowners an enforcement notice, indicating the homeowners conducted a bed and
breakfast use in violation of the zoning ordinance. The homeowners appealed to the
ZHB. Before the ZHB, the homeowners admitted to receiving guests at their home
who reserved their stays through Airbnb, but they maintained they did not offer
breakfast to guests. Ultimately, the ZHB determined the homeowners’ use of the
21
property was a prohibited bed and breakfast. The common pleas court affirmed. On
further appeal, this Court reversed, stating:
This case is factually distinguishable from
Marchenko, Shvekh and Slice of Life. In those three
cases, the property owners rented out the entirety of their
home, either during periods when they were not present at
the house or exclusively as in Slice of Life, while here the
[homeowners] continually reside in their home during
AirBnB guest stays. Furthermore, unlike Marchenko,
Shvekh and Slice of Life, only the present matter before
this Court presents the issue of whether the property
owners have engaged in a ‘Bed and Breakfast Use.’
Nevertheless, the controlling law in this trio of cases also
applies here. Like the present case, each of Marchenko,
Shvekh and Slice of Life concerns an attempt by a [ZHB]
to apply the zoning ordinance to a new form of economic
activity occurring in single-family homes that was
facilitated and expanded by internet services like Airbnb.
However, in each of those cases, this Court ruled that the
[ZHB] overstepped its authority under its ordinance,
‘advanc[ing] a new and strained interpretation of its
zoning ordinance in order to effect what it would like the
ordinance to say,’ ‘shoehorning’ the use in question into
an unsuitable existing category of uses in the ordinance.
Shvekh, 154 A.3d at 414-15.
Our review of the present case accordingly requires
that we determine whether the [o]rdinance unambiguously
prohibits the type of rental activity occurring on the
[p]roperty that would allow the [c]ity to constrain the
[homeowners] use of their [p]roperty. We conclude that it
does not.
Reihner, 176 A.3d at 402.
Applying the principles gleaned from these cases, the trial court here
correctly determined that, because the zoning ordinance does not prohibit
22
Landowner from using the dwelling on the subject property for short-term rentals,
that use is not prohibited. Thus, because the dwelling on the subject property meets
the zoning ordinance’s definition of a “single[-]family detached dwelling,” a
permitted use in the BMP and AP districts, Neighbors’ claims to the contrary fail.
Further, to the extent there is any ambiguity in the relevant zoning ordinance
definitions, the language of the zoning ordinance must be interpreted in favor of
Landowner and against any implied extension of restrictions on the use of the subject
property. Adams Outdoor Advert.
In addition, in Marchenko, Shvekh, and Slice of Life, this Court
rejected attempts to apply our Supreme Court’s decision in Albert in a manner that
would prohibit short-term rentals of single-family dwellings, where the zoning
ordinances did not prohibit such activity. Further, unlike in Albert, which concerned
“a halfway house for recovering alcoholics and drug-addicts[,]” Albert, 854 A.2d at
402, Landowner is not using the dwelling on the subject property in a purely transient
manner. Indeed, the record here reveals that the dwelling on the subject property is
used by or available for use by Landowner and his family for a majority of the year
and rented out in its entirety for short-term rentals (primarily through the website
HomeAway11) approximately 30% of the year. R.R. at 475a-76a. Also, in Albert,
the ordinance did not define the term “family,” while the zoning ordinance here
employs a broad definition of that term. Additionally, Neighbors rely on Albert for
the proposition that a profit motive is inconsistent with single-family dwelling use.
While the Court in Albert discussed whether a profit motive was incompatible with
the single-family concept, it decided the record facts of profit motive were not
11
https://www.homeaway.com (last visited September 21, 2018).
23
conclusive. Moreover, while Neighbors offer conclusory assertions that
Landowner’s profit motive is incompatible with single-family dwelling use here,
they do not develop these bare assertions nor do they provide citations to the record
or other authority.
In addition, although Neighbors correctly note that our Supreme Court
granted allowance of appeal in Slice of Life,12 the zoning ordinance definition of
“Family” in that case is materially different from the definition of “family” here,
because it required a familial relationship between the occupiers. Slice of Life, 164
A.3d at 637 (defining “Family” as “[o]ne or more person[s], occupying a dwelling
unit, related by blood, marriage, or adoption, living together as a single
housekeeping unit and using cooking facilities and certain rooms in common.”)
(Emphasis added.) Further, unlike in Slice of Life where the property owner used
the dwelling on his property exclusively for short-term rentals, in this case
Landowner and his family use the dwelling on the subject property substantially
throughout the year and rent it on a short-term basis approximately 30% of the year.
Moreover, until our Supreme Court renders its decision in Slice of Life, this Court’s
decision remains binding precedent.
Based on the foregoing, we affirm.
ROBERT SIMPSON, Judge
12
Slice of Life, LLC v. Hamilton Township Zoning Hearing Board, 180 A.3d 367 (Pa.
2018) (granting allowance of appeal on the issue of “[w]hether the Commonwealth Court
disregarded the binding precedent of th[e] [Supreme] Court, set forth in the case [of] [Albert], by
finding that the purely transient use of a property as part of a commercial short-term vacation rental
business was a permitted use in a residential zoning district?”).
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25
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cheri Ann Leinberger, Matthew S. :
Leinberger, Daniel P. Seneca, Kathleen :
A. Seneca and William J. Necker, :
Appellants :
: No. 1620 C.D. 2017
v. :
:
Anthony G. Stellar, as Trustee of the :
Deborah E. Stellar Revocable Trust :
ORDER
AND NOW, this 11th day of October, 2018, the order of the Court of
Common Pleas of Lehigh County is AFFIRMED.
ROBERT SIMPSON, Judge