Slice of Life, LLC v. Hamilton Twp. Zoning Hearing Bd.

[J-97-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
SLICE OF LIFE, LLC AND VAL : No. 7 MAP 2018
KLEYMAN, :
: Appeal from the Order of
Appellees : Commonwealth Court at No. 941 CD
: 2016 dated June 21, 2017,
: Reconsideration Denied August 7,
v. : 2017, Reversing the Order dated April
: 20, 2016 of the Monroe County Court
: of Common Pleas, Civil Division, at
HAMILTON TOWNSHIP ZONING : No. 4642 CV 2015
HEARING BOARD AND HAMILTON :
TOWNSHIP, : ARGUED: December 5, 2018
:
Appellants :
OPINION
JUSTICE DONOHUE DECIDED: April 26, 2019
In this discretionary appeal, we must determine whether a zoning ordinance that
defines “family” as requiring “a single housekeeping unit” permits the purely transient use
of a property located in a residential zoning district. This question arises based on the
increasingly popular concept of web-based rentals of single-family homes to vacationers
and other transient users for a few days at a time. See 5 Rathkopf’s The Law of Zoning
and Planning § 81:11 (4th ed.) (2018). For the reasons that follow, we conclude that
pursuant to this Court’s prior decisions in Albert v. Zoning Hearing Bd. of N. Abington
Twp., 854 A.2d 401 (Pa. 2004), and In re Appeal of Miller, 515 A.2d 904 (Pa. 1986)
(“Miller”), the purely transient use of a house is not a permitted use in a residential zoning
district limiting use to single-family homes by “a single housekeeping unit.” We therefore
reverse the decision of the Commonwealth Court and reinstate the decision of the zoning
hearing board, as affirmed by the common pleas court.
To properly frame the matter before us, some background regarding the underlying
law is useful. A property owner has a constitutionally protected right to the enjoyment of
his or her property. Pa. Const. art. I, § 1 (providing for the “inherent” right of “acquiring,
possessing and protecting property”); Newtown Square E., L.P. v. Twp. of Newtown, 101
A.3d 37, 51 (Pa. 2014). That right is permissibly limited by a zoning ordinance that is
substantially related to the protection of the public health, safety, morality and welfare –
commonly known as a municipality’s “police power.” In re Realen Valley Forge Greenes
Assoc., 838 A.2d 718, 728 (Pa. 2003) (quoting C & M Developers, Inc. v. Bedminster
Twp. Zoning Hearing Bd., 820 A.2d 143, 150 (Pa. 2002)).
The establishment of residential zoning districts has long been recognized as a
valid exercise of a municipality’s police power. They serve to insulate areas intended for
residential living from increased noise and traffic, protect children living there and their
ability to utilize quiet, open spaces for play, and to maintain “the residential character of
the neighborhood.” Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 394
(1926). Non-family uses, including fraternity houses and boarding houses, have been
found to be antithetical to the “residential character,” as “[m]ore people occupy a given
space; more cars … continuously pass by; more cars are parked; [and] noise travels with
crowds.” Vill. of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974). As the high Court explained,
A quiet place where yards are wide, people few, and motor
vehicles restricted are legitimate guidelines in a land-use
project addressed to family needs. This goal is a permissible
one within Berman v. Parker, [348 U.S. 26 (1954) (discussing
[J-97-2018] - 2
the broad concept of public welfare)]. The police power is not
confined to elimination of filth, stench, and unhealthy places.
It is ample to lay out zones where family values, youth values,
and the blessings of quiet seclusion and clean air make the
area a sanctuary for people.
Id.“Single housekeeping unit” is a phrase that is commonly used in the definition of
“family” in zoning ordinances throughout the country. See Patricia E. Salkin, Family
defined; unrelated persons, 1 Am. Law. Zoning § 9:30 (5th ed.); see, e.g., Vill. of Belle
Terre, 416 U.S. at 2. It finds its roots in the beginnings of zoning once “the legitimacy of
exclusive single-family districts was settled.” Miller, 515 A.2d at 906. Early zoning
ordinances, however, generally failed to define the term “family,” requiring the judiciary to
provide its meaning. Id. “[D]issatisfaction with reliance solely upon judicial interpretation
for the definition of the term ‘family’ became increasingly apparent,” prompting the drafters
of zoning ordinances across the United States to include a definition within the ordinances
themselves. Id. at 907. Based on the use of the phrase “single housekeeping unit” by
leading commentators on zoning, ordinances began to use that language to define the
term “family.” Id. (citing E. Bassett, Zoning at 189 (1940)).
Unfortunately, this did not achieve the desired result, as it served only to shift the
focus of litigation relating to permissible uses in residential zoning districts from defining
the word “family” to defining the phrase “single housekeeping unit.” Id. In defining “single
housekeeping unit,” courts adopted a definition that required the occupants of a home to
live and behave in a manner like that of a family in a character that is “permanent … and
not transitory.” Washington Twp. v. Central Bergen Comm. Mental Health Ctr., 383 A.2d
1194, 1209 (N.J. Sup. 1978). See Moore v. City of E. Cleveland, Ohio, 431 U.S. 494,
[J-97-2018] - 3
515-19 (1977) (Stevens, J., concurring) (recognizing that state decisions regarding
residential zoning ordinances generally require, inter alia, “that a single-family home be
occupied only by a ‘single housekeeping unit,’” and for “such households to remain
nontransient”); see, e.g., Northern Maine General Hosp. v. Ricker; 572 A.2d 479 (Maine
1990); Commonwealth v. Jaffe, 494 N.E.2d 1342 (Mass. 1986); Costley v. Caromin
House, Inc., 313 N.W.2d 21 (Minn. 1981); State ex rel. Region II Child and Family
Services, Inc. v. District Court of Eighth Judicial Dist., 609 P.2d 245 (Mont. 1980); Crowley
v. Knapp, 288 N.W.2d 815 (Wis. 1980); City of White Plains v. Ferraioli, 313 N.E.2d 756(N.Y. 1974).
Miller was one such case. It involved a homeowner who began providing lodging,
meals and care to physically and mentally disabled persons in her home. The home was
located in a residential zoning district that permitted single-family detached dwelling use,
but disallowed convalescent homes, nursing homes and boarding houses. Miller, 515
A.2d at 905. The zoning ordinance at issue defined “family” as “any number of persons
living and cooking together as a single housekeeping unit.” Id. at 905. To determine
whether the given use was permitted under the ordinance, this Court had to discern the
definition of “single housekeeping unit,” which was at the heart of the definition of “family.”
Id. at 906.
Examining cases from other jurisdictions, the Miller Court found that the focus was
properly “on whether the unit functioned as a family unit, rather than on the respective
relationships that existed between the members of the unit.” Id. at 907 (citing City of
Syracuse v. Snow, 123 Misc. 568 (N.Y. Sup. Ct. 1924); Robertson v. Western Baptist
Hospital, 267 S.W.2d 395 (Ky. Ct. App. 1954); Boston-Edison Protective Ass'n v. Paulist
[J-97-2018] - 4
Fathers, 10 N.W.2d 847 (Mich. 1943)). We agreed that whether the individuals living in
the home were in fact related to each other was not dispositive of whether they were a
“single housekeeping unit,” and thus a “family.” Instead, the Court stated that the analysis
required was a “functional analysis” to determine whether the use of the residence was
that of a family, citing cases from the Commonwealth Court that adhered to this principle.
Id. at 907-08 (citing Children’s Aid Society v. Zoning Bd. of Adjustment, 402 A.2d 1162(Pa. Commw. 1979) (use of a single family dwelling by a family with six foster children
was a “family” even though not related “by blood, marriage or adoption” as required by
the ordinance, as it was the functional equivalent of a “family”); Wengert v. Zoning Hearing
Bd. of Upper Merion Twp., 414 A.2d 148 (Pa. Commw. 1980) (group home for foster
children not permitted in residential district, as use was the functional equivalent of an
institutional corrective setting, not a family dwelling)).
Applying this “functional analysis” to the circumstances of the case before it, the
Court in Miller observed that the individuals in question lived and cooked together; the
activities and areas of the house were shared by everyone; all occupants had access to
the entire house, including the single kitchen; meals were eaten together; and the group
celebrated holidays together and attended social and religious functions together. Id. at
908. Further, the Court found that the use was not “transient,” as “the residents usually
remain substantial periods of time and move only for health reasons or personal
preference.”1 Id. at 909. We therefore held that the use was permitted in the residential
zoning district.
1 The Miller Court, however, stated that while the transiency of the tenancy is a relevant
consideration, its focus was “directed to the quality of the relationship during the period
of residency rather than its duration.” Miller, 515 A.2d at 909.
[J-97-2018] - 5
Nearly twenty years later, we decided Albert. We were faced with the question of
whether the operation of a halfway house for recovering alcoholics and drug addicts was
the functional equivalent of a single-family detached dwelling, a permitted use in the
residential zoning district where the house was located. Albert, 854 A.2d at 402. The
zoning ordinance in question did not define “family,” and the Court therefore had to
determine its meaning. Id. at 404. Observing that Miller’s definition of “single
housekeeping unit” ultimately interpreted what it meant to be a “family,” the Albert Court
used that same analysis as the foundation for its decision. Id. at 405. In fact, we
concluded in Albert that “single housekeeping unit” was a term of art, widely used in
zoning ordinances as the “essential element” of what constitutes a “family” for purposes
of zoning. Id. at 407 n.5 (citing Kenneth H. Young, 2 Anderson’s American Law of Zoning
§ 9:30 (4th ed. 1996)). “The prevalence of this construction, in combination with the
principle that zoning ordinances should be liberally construed to permit the broadest
possible use of land, 53 P.S. § 10603.1, makes it apparent that ‘single housekeeping unit’
must be considered the plain and ordinary meaning of ‘family’ in the zoning context.” Id.
The Albert Court ultimately found that the halfway house use was not the functional
equivalent of a single-family detached dwelling because of “the transience of its
residents.” Id. at 407.
While this Court has never before explicitly stated that
transiency is incompatible with the notion of a single-family
household, it is undeniable that inherent in the concept of
“family” and, in turn, in the concept of a “single-family
dwelling,” is a certain expectation of relative stability and
permanence in the composition of the familial unit.
Id. at 409. We explained that the very benefit of and purpose behind the creation of
residential zoning districts was to “create residential neighborhoods in which the residents
[J-97-2018] - 6
may develop a sense of community and a shared commitment to the common good of
that community.” Id. In the absence of “stability and permanence” of the individuals
residing in those districts, “the goal is necessarily subverted.” Id. (citing 2 Rathkopf’s The
Law of Zoning and Planning § 23.27).
Thus, we held that a “single housekeeping unit,” as that term of art is used and
understood, requires that “a group of individuals in a single household must not only
function as a family within that household, but in addition, the composition of the group
must be sufficiently stable and permanent so as not to be fairly characterized as
purely transient.” Id. at 410 (emphasis added). Finding that the average stay of
residents was only two to six months, the Court concluded that such a “level of instability
and transience is simply incompatible with the single-family concept.” Id.
Turning to the facts of the case at bar, the property at the center of this controversy
is a house located in the Poconos in Hamilton Township, Monroe County, Pennsylvania
(the “Property”) and its use is governed by the 1985 Hamilton Township Zoning Ordinance
(the “Ordinance”). The Ordinance divides the township into zoning districts, and those
districts into classes of districts. See Ordinance, § 302. The Property is located in Zoning
District A, which provides for several permitted uses, the only relevant of which is “Use
Class 1 - Single Family Residential,” where “[p]ermitted uses include: [s]ingle family
detached dwellings [and a]ccessory uses and essential services.” Id., § 402.1.2 Section
201.4 defines a “dwelling” as “[a] building or structure designed, arranged, intended, or
2 Other permitted uses in Zoning District A include conservation and agricultural uses.
See Ordinance, Schedule I. It also allows planned residential developments and
correctional institutions as conditional uses, as well as conversions, related residential
use and appropriate public uses as special uses. Id.
[J-97-2018] - 7
used as the living quarters for one or more families living independently of each other
upon the premises. The term ‘dwelling’ shall not be construed to included hotel, motel,
rooming houses, or other tourist home.” Id., § 201.4. A “one-family” dwelling is “[a]
building on a lot, designed, arranged or intended for and occupied exclusively as a
residence for one (1) family.” Id., § 201.4(a).
The Ordinance defines hotel and motel, but does not define “rooming house” or
“tourist home.” 3 It further defines “family” as “[o]ne or more persons, 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.” Id., § 204.1. The Ordinance
does not separately define the phrase “single housekeeping unit.”
At all times relevant to the pending matter, the Property was owned by Appellee
Slice of Life, LLC (“Slice of Life”), a limited liability corporation formed, organized and
existing under the laws of Pennsylvania. Appellee Val Kleyman (“Kleyman” and together
with Slice of Life, “Appellees”) is the sole member of Slice of Life. Kleyman, who lives in
Brooklyn, New York, has never lived at the Property or considered it to be his personal
residence. Rather, Slice of Life purchased the Property as an investment property that
was to be used exclusively for short-term rentals.
3 The Ordinance defines “hotel” as “[a] building designed or used primarily as a temporary
abiding place in which lodging is provided for compensation, with or without meals,
containing ten (10) or more guest rooms, and having an outside entrance in common.”
Id., § 204.1. A “motel” is defined as “[a] building or group of buildings containing individual
rooms or apartment accommodations primarily for transients, each of which is provided
with a separate exterior entrance and a parking space, offered principally for rental and
use by motor vehicle travelers. The term ‘motel’ includes but is not limited to auto courts
motor courts, motor inns, motor lodges or roadside hotels.” Id. Although “tourist home”
and “boarding house” are not defined, Appellants have never contended (and do not now
contend), and none of the reviewing bodies below found, that the Property constituted or
was being used as either.
[J-97-2018] - 8
On May 22, 2014, a Hamilton Township zoning officer issued an enforcement
notice to Appellees based upon Appellees’ use of the Property “as [a] Hotel and/or other
types of transient lodging, Rental of Single Family Residential Dwelling for transient
tenancies,” in violation of the permitted uses for Zoning District A. Township’s Exhibit 1
(Enforcement Notice). The notice instructed Appellees that they must “Cease Use as a
hotel/transient rental facility” by May 31, 2014. Id.
Appellees’ filed an appeal to the Hamilton Township Zoning Hearing Board (the
“Board”). The Board convened hearings on the appeal that took place on seven separate
days spanning ten months. Kleyman testified that he is a real estate investor, estimating
that he owned between ten and twelve properties at the time of the hearing, more than
one of which is located in the Poconos. N.T., 11/12/2014, at 243, 291-92. He stated that
he created Slice of Life for the purpose of purchasing the Property. Kleyman advertised
the Property online for short-term rentals – a minimum of two nights and a maximum of
one week – through companies that specialize in internet-based rentals including Home
Away and Luxury Stay, the latter of which he and his business partner, Oleg Gorshkov,
formed in 2012 or 2013. Luxury Stay, which is based in New York, makes “reservations”
and manages the Property (and others) through an informal agreement with Slice of Life.
Id. at 243, 255.
Kleyman described the Property as a three-bedroom house that can sleep
between twelve and fourteen people on a variety of beds and pullout couches that are
located in various rooms throughout the house. Id. at 314. Evidence submitted at the
hearing, however, revealed that the Property is advertised as a six-bedroom house that
sleeps seventeen people. N.T., 12/9/2014, at 427. Although one person signs the lease,
[J-97-2018] - 9
it is expected and understood that large groups will utilize the Property, but neither Luxury
Stay nor Slice of Life is aware of (or makes any effort to ascertain) the relationship, if any,
between the individuals occupying the Property at any given time. N.T., 11/12/2014, at
261, 271, 308. Luxury Stay at times will verify that the person making the reservation is
the minimum age for renting the Property (twenty-five), but collects no information
regarding the additional people who will be staying there. Id. at 250, 268, 271. When
guests arrive at the Property, they find a welcome book that identifies area businesses
and instructions for using the amenities of the Property. Id. at 253.
After each group leaves the Property, Kleyman testified that a crew is dispatched
to clean it within thirty-six hours, and that other “crews … run around … and fix everything
that’s broken.” Id. at 254. He estimated that the Property is rented approximately twenty-
five weekends per year. Id. at 315.
He admitted that he had received complaints from neighbors to the Property
concerning noise – in particular, the use of fireworks at 2:00 a.m. by renters. Id. at 248.
Leopold Zappler, the adjacent property owner, also testified to activities occurring on the
Property that threaten the health, safety and welfare of his home and his family, including
public urination, fireworks, loud music, large bonfires in the heavily wooded area, nudity
and lewd conduct. N.T., 12/9/2014, at 412, 415-16, 418, 432-34, 441, 444; see also
Zappler’s Exhibit 5 (letters from Zappler to Kleyman concerning activities occurring at the
Property). The record further reflects that neighbors had called the police to the Property
for noise (fireworks and loud parties) on several occasions as well. See Zappler’s Exhibit
4 (police reports). There was also the suggestion that the septic system, designed for
[J-97-2018] - 10
use by a single family in a three-bedroom house, could be inadequate to accommodate
the number of people who routinely utilized the home. N.T., 11/12/2014, at 341.
Kleyman acknowledged that this is his business and that it is part of “the tourism
industry” of the Poconos. Id. at 257. He further stated that he is required to pay
Pennsylvania’s Hotel Occupancy Tax on the Property. Id. at 269; see 72 P.S. § 7210.
While Kleyman denied that the Property constituted a “hotel” or “transient boarding house”
he agreed that the people who rented the Property fit the dictionary definition of the term
“transient,” i.e., “passing through or by a place with only a brief stay or sojourn.” N.T.,
11/12/2014, at 255, 310.
On June 2, 2015, the Board issued its decision denying Appellees’ appeal of the
enforcement notice. The Board found, based on the evidence presented before it, that
the Property was “part of a transient lodging business enterprise,” used in a manner
typical of a hotel or motel.
The nature of the lodging business enterprise is that a new
group of 12 to 14 persons occupy and utilize the [Property] on
weekends frequently throughout the year. Although the
[Property] is not continuously rented 52 weeks out of the year,
there is a steady use of the [Property] by a new group of 12 to
14 new occupants throughout the calendar year just as there
would be in a hotel, motel, or other place of transient lodging
accommodations.
Board Decision, 6/2/2015, at 7. Relying on this Court’s decision in Albert, the Board
concluded that “the short term transient lodging rental business and use of the [Property]
is the operation of a business in the Single Family Residential District contrary to the
provisions of the Ordinance resulting in a purely transitory occupancy of the [Property].”
Id. at 9-11.
[J-97-2018] - 11
Appellees’ appealed the Board’s decision to the Monroe County Court of Common
Pleas (the “trial court”), which entertained argument but took no additional evidence.
Appellees argued that because the Property does not satisfy the specific definition of
“hotel” or “motel” as provided in the Ordinance, it therefore “must be a single family
dwelling.” Trial Court Opinion, 4/20/2016, at 4. They also argued that the Board’s reliance
on Albert was improper because in that case, this Court was required to define the term
“family” in an ordinance that left the term undefined.
The trial court found that although “family” is defined in the Ordinance, Albert
stands for the broad proposition that the term “family” in zoning-related matters requires
a level of stability and permanency, and therefore was still applicable to Appellee’s use
of the Property. Id. at 4-5. The trial court further found that even in the absence of the
applicability of Albert’s definition of family, Appellees’ use of the Property is not permitted
in Zoning District A under the Ordinance. Relying Miller, the trial court held that Appellees’
“use of the Property is predicated entirely on a ‘for profit’ commercial enterprise,” which
is prohibited in the zoning district. Trial Court Opinion, 4/20/2016, at 6-7.4
4 Appellees additionally raised two challenges to the Ordinance itself. First, Appellees
argued that it was unconstitutionally vague and ambiguous because it did not expressly
prohibit short-term rentals. Trial Court Opinion, 04/20/2016, at 7-9. Second, they
asserted a de jure exclusion challenge, claiming that the ordinance completely excludes
a legitimate use of single family dwellings. Id. at 9-11. The trial court found both of these
claims to be meritless and unsupported by the record. Further, in their Pa.R.A.P. 1925(b)
statement, Appellees raised a claim that the exclusion of short-term rentals constituted
an unconstitutional taking, which the trial court found to be waived because the issue was
not previously raised. Trial Court Opinion, 7/1/2016, at 15-16. No constitutional issues
are presently before this Court, and we therefore do not discuss them further.
[J-97-2018] - 12
Appellees again appealed, this time to the Commonwealth Court, raising seven
issues for review.5 Of relevance to the pending matter, a majority of the three-judge
Commonwealth Court panel agreed with Appellees that Albert was inapplicable, finding
that its precedential value was limited to cases where the term “family” is not defined by
a zoning ordinance. It proceeded to parse the testimony presented, finding that the
evidence established that the individual who signed the lease of the Property was the
“family” for purposes of the Ordinance, and the remaining people occupying the Property
were mere “guests” of the “family.” Slice of Life, LLC v. Hamilton Twp. Zoning Hearing
Bd., 164 A.3d 633, 638-39 (Pa. Commw. 2017).
It further found that because the phrases “transient lodging” and “transient
tenancies” were neither used nor defined in the Ordinance, the Board could not modify
the Ordinance to find that such uses were prohibited in the zoning district at issue. Id. at
641. “[T]he Board was required to apply the terms of the Ordinance as written, rather
than deviating from those terms based on unexpressed policies of the Township
regarding permitted uses. The Board’s function is only to enforce the zoning ordinance
in accordance with the law.” Id. at 642 (emphasis omitted). Although highly critical of the
5 The following issues were raised before the Commonwealth Court: (1) trial court error
in holding that section 402.1 of the Ordinance does not allow “a short-term transient
lodging enterprise” use; (2) trial court error in applying Albert where the Ordinance defined
“family”; (3) trial court error in holding that there was “no substantial evidence” that the
stated use of the Property is not permitted in the Single Family Residential district; (4) the
Ordinance is unconstitutionally vague because it prohibits Appellees’ use of the Property;
(5) the Ordinance’s exclusion of a single family dwelling for short-term rentals is
unconstitutional; (6) the trial court erred by finding an identified, protected public interest
at issue; and (7) the trial court’s interpretation of the Ordinance constitutes “an
unconstitutional taking of real estate” based on its failure to strictly construe the Ordinance
to permit the widest use of land. Slice of Life, LLC v. Hamilton Twp. Zoning Hearing Bd.,
164 A.3d 633, 636 (Pa. Commw. 2017).
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Board in this respect, the majority did not discuss the definition of “family” or specifically
apply the definition to the facts of the case. Instead, believing that the Ordinance in
question was ambiguous, but without stating precisely what that ambiguity was, the
Commonwealth Court majority concluded that the law required it “to interpret the
language of the Ordinance in favor of the landowner and against any implied extension
of restrictions on the use of one’s property,” based on the requirement that courts strictly
construe ambiguous ordinances to allow for the broadest use of land. Id.In so holding, it relied on its prior decisions in Shvekh v. Zoning Hearing Bd. of
Stroud Twp., 154 A.3d 408 (Pa. Commw. 2017), and Marchenko v. Zoning Hearing Bd.
of Pocono Twp., 147 A.3d 947 (Pa. Commw. 2016), wherein the Commonwealth Court
held that short-term rentals were permitted in the residential zoning districts in question
because they were not specifically prohibited by the respective zoning ordinances.
Though acknowledging that the facts of the case at bar differed from Shvekh and
Marchenko, as the homeowners in those cases resided in the homes for at least part of
the year when not being used as rental properties, it stated that “the controlling law [does]
not.” Slice of Life, 164 A.3d at 641.6 “Enterprises such as AirBnB have expanded the
6 As the Commonwealth Court concluded that a short-term rental use was permitted in
Zoning District A, it further evaluated the complaints and concerns about the Property
(including the high occupancy of the property, an inadequate septic system and disruptive
tenants), concluding that they were speculative, and that the Board failed to satisfy its
burden to show “a high degree of probability that [the alleged actions] will [substantially]
affect the health and safety of the community” to preclude Appellees’ use of the Property.
See id. at 642, 644-45 (quoting Appeal of O’Hara, 131 A.2d 587, 598 (Pa. 1957) (finding
the denial of a request for a special exception to allow for a school in a residential zoning
district, which required board consent, was constitutional only if board found that the
specific concerns regarding the proposed use have a substantial relationship with
adverse impacts to “the health, safety and morals of the community”). As we conclude
that short-term rentals are not a permitted use in Zoning District A, and this issue is not
[J-97-2018] - 14
possible uses of single-family dwellings and a township can address such uses in the
zoning ordinance. Amendments, however, ‘cannot be effected by shoe-horning a use
that involves renting an entire single-family home to vacationers into the definition of
‘tourist home.’’” Id. at 642 (quoting, in part, Marchenko, 147 A.3d at 415).
Senior Judge Collins issued a brief dissenting opinion based on his conclusion that
the record supported the trial court’s affirmance of the Board’s decision. “No doubt can
exist that the intended meaning of the [O]rdinance was not to allow the [P]roperty to be
used as a short-term rental unit for multiple families and/or individuals. Transient short-
term rentals for multiple families or groups were not included within the drafters’ intentions
when restricting the zoning use to that of single-family properties.” Id. at 646 (Collins,
S.J., dissenting).
We granted the request for further review filed by the Board and the Township
(collectively “Appellants”) to answer the following question:
Whether the Commonwealth Court disregarded the binding
precedent of this Court, set forth in the case Albert v. Zoning
Hearing Board of North Abington Township, 578 Pa. 439, 854
A.2d 401 (2004), 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?
Slice of Life, LLC v. Hamilton Twp. Zoning Hearing Bd., 180 A.3d 367 (Pa. 2018) (per
curiam).
Prior to addressing the issue before us, we must first decide whether this appeal
should be allowed to proceed. On May 22, 2019, shortly after Appellees’ brief was due
to be filed in this Court, counsel for Appellees filed a motion to withdraw as counsel,
fairly encompassed in the question upon which we granted review, we need not evaluate
this aspect of the Commonwealth Court’s decision.
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stating therein that Appellees’ would not authorize their counsel to participate in the
appeal before this Court. See Motion, 5/22/209, ¶ 1. This Court granted the motion on
August 7, 2018. Order, 8/7/2018. Appellees therefore did not file a brief in this matter or
participate in oral argument. In the same Order, the Court granted the request of
Appellees’ Amicus, Institute for Justice (“Amicus”), to participate in oral argument. Id.Six months after the issuance of the Order, and two months after oral argument
before this Court, Appellees filed a motion to quash the appeal based on the sale of the
Property on July 17, 2018. Purporting to quote Liberties Lofts LLC v. Zoning Bd. of
Adjustment, 182 A.3d 513 (Pa. Commw. 2018), Appellees state, “Where a party no longer
has an ownership interest in a property which is the subject of a land use appeal, that
appeal becomes moot.” Motion to Quash, 2/11/2018, ¶ 5. Appellants responded,
disagreeing that the issue raised is moot and objecting to the requested relief.
We observe at the outset that the above-quoted language presented by Appellees
does not appear in Liberties Lofts. Furthermore, the proposition for which it stands was
simply raised as an argument in Liberties Lofts by the appellant and was not a holding of
the case. See Liberties Lofts, 182 A.3d at 520, 523. Although other Commonwealth
Court cases have held that the sale of the property at the heart of a land use matter
renders the case moot, see, e.g., Gwynedd Properties, Inc. v. Board of Sup'rs of Lower
Gwynedd Tp., 635 A.2d 714 (Pa. Commw. 1993), this case is not subject to dismissal on
mootness grounds.
The mootness doctrine is well settled:
The cases presenting mootness problems involve litigants
who clearly had standing to sue at the outset of the litigation.
The problems arise from events occurring after the lawsuit has
gotten under way—changes in the facts or in the law—which
[J-97-2018] - 16
allegedly deprive the litigant of the necessary stake in the
outcome. The mootness doctrine requires that an actual case
or controversy must be extant at all stages of review, not
merely at the time the complaint is filed.
Pap's A.M. v. City of Erie, 812 A.2d 591, 599-600 (Pa. 2002) (quoting (In re Gross, 382
A.2d 116, 119 (Pa. 1978)).
In Pap’s A.M., this Court found that cessation of the complained of activity (fully
nude erotic dancing), which violated a city ordinance, did not render the action challenging
the ordinance moot. The Court found that although Pap’s was no longer operating the
business that was found to violate the ordinance, it remained a business incorporated in
Pennsylvania and could open the same type of establishment in the future. Id. at 600.
Further, we observed that the case presented the potential for manipulation, as the City
of Erie “argued in favor of mootness at a point where the existing judgment, if left alone,
would be to its benefit.”7 Id.
These same circumstances are present in the case at bar. While Appellees may
have sold the Property, Slice of Life remains a Pennsylvania limited liability corporation
and Kleyman, its sole member, is a real estate investor who owns other properties in
Pennsylvania. Also as in Pap’s A.M., Appellees advocate for the discontinuance of the
action on mootness grounds at a point where the dismissal of the case would benefit
them, as there is an existing, precedential Commonwealth Court decision that permits
short-term rentals in residential zoning districts in Pennsylvania. This potential
7 Pap’s A.M. was on remand to this Court from the United States Supreme Court, which
had issued a plurality decision in favor of the City of Erie. See Pap’s A.M., 812 A.2d at
598-99.
[J-97-2018] - 17
manipulation motive for the discontinuance request is heightened because of Appellees’
refusal to participate in the appeal before this Court.
The prevalence of short-term rentals in Pennsylvania (and throughout the country)
has grown over the last several years, requiring cities, townships and boroughs to make
case-by-case determinations as to whether and where such rentals should be permitted.
See Thomas Marcey, How Airbnb and its Online Kin Have Changed the Laws of Short-
Term Renting – One State’s Experience, 2018-7 Construction Briefings NL 1 (July 2018);
Katherine A. Janocsko, Short-Term Rental, Long-Term Impact, 20 No. 11 Lawyers J. 14
(2018). Further, given the significant amount of time that typically passes between a
decision by a zoning hearing board and an appeal taken to this Court, the circumstances
of this case are easily repeated, i.e., the property owner divests its interest therein
following a decision in the property owner’s favor. As the circumstances of this case are
capable of repetition (by Appellees and others) but could easily evade review in this same
manner, we will proceed to address the merits of the claim raised. See Burke ex rel.
Burke v. Independence Blue Cross, 103 A.3d 1267, 1271 (Pa. 2014) (discussing
exceptions to the mootness doctrine); Pap’s A.M. 812 at 600-01.
Appellants argue that Albert, which is derived from our decision in Miller, is
controlling. According to Appellants, through its decision in this case, as well as those in
Marchenko and Shvenk, the Commonwealth Court has “ignored and eroded the lessons
found in Albert,” rendering that decision “virtually meaningless in Pennsylvania.”
Appellants’ Brief at 16-21. They assert that the facts of this case clearly establish a purely
transient use of the Property, and that the character of Appellees’ “business enterprise”
[J-97-2018] - 18
does not share any of the hallmarks of a single-family residential district as described in
Albert and Village Belle Terre. See id. at 13-14, 22-23.
Appellants further contend that the Commonwealth Court erred by finding the
Ordinance to be ambiguous. Contrary to the repeated holdings of that court, Appellants
state that because short-term rentals are not listed as a permitted use, that use is
excluded, and there is no ambiguity.8 Id. at 26-30.
Amicus discusses the history of property rights dating back to the Magna Carta for
the proposition that any limitation on property rights must be strictly construed in favor of
the free use of property. See Amicus’ Brief at 5-10. Amicus asserts that “[a] long-standing
requirement in strict-construction cases is that restrictions on property rights must be
express or clearly implied.” Id. at 11 (citing Pearce v. Theological Seminary, 2 Watts 340(Pa. 1834)). Relying on our decision in Peterson v. Zoning Bd. of Adjustment of
Whitemarsh Twp., 195 A.2d 523 (Pa. 1963), wherein we held that a zoning ordinance’s
exclusion of a cement mixing plant from a zoning district did not extend to also exclude a
concrete mixing plant, Amicus states that this means “restrictions must be explicit, or at
least grounded in the actual text of the zoning ordinance, to have any affect.” Amicus’
Brief at 12-13. It further urges that restrictions must be interpreted to allow for the
broadest possible use of land. See id. at 14-17.
8 Appellants observe that the Commonwealth Court’s decisions that post-date this appeal
continue to be based on this same, erroneous legal basis – finding that uses not expressly
prohibited in a zoning ordinance are necessarily permitted. Appellants’ Brief at 21 n.2
(citing Reihner v. City of Scranton Zoning Haring Bd., 176 A.3d 396 (Pa. Commw. 2018).
See also Hoefling v. Zoning Hearing Bd. of Monroe Twp., 1473 C.D. 2017, 2018 WL
5290348 (Pa. Commw. Oct. 25, 2018) (non-precedential decision).
[J-97-2018] - 19
Applying these principles to the Ordinance and the facts of the case, Amicus
asserts that the Commonwealth Court correctly concluded that Appellees’ use of the
Property fell under the single-family dwelling permitted use in the Ordinance. See id. at
18-26. It further agrees with the Commonwealth Court’s finding that Albert was
inapplicable because the Ordinance defines “family” and Albert did not involve a
“regressive restriction.” Id. at 26-32. Amicus contends that the Albert and Miller decisions
are inapplicable here because the “housekeeping units” to which the properties were
being rented differed. According to Amicus, the groups in Miller and Albert were
“malleable groups of unrelated individuals renting separate rooms in the same home,”
whereas here, Appellees rented the entire Property to a single person who alone
constitutes the housekeeping unit. Amicus’ Brief at 34.
The substantive question presented requires us to determine whether the
exclusive use of the Property as a short-term rental unit is permitted by the Ordinance in
Zoning District A as a Single Family Residential use. To evaluate this claim, we must
interpret the language of the Ordinance. This presents a question of law for which our
standard of review is de novo and our scope of review is plenary. Gorsline v. Bd. of
Supervisors of Fairfield Twp., 186 A.3d 375, 385 (Pa. 2018). We are bound by the facts
as found by the Board that are supported by substantial evidence, which we have defined
as “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. (citing Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d
637, 642 (Pa. 1983)).
As stated hereinabove, Article I, Section 1 of the Pennsylvania Constitution
protects a citizen’s right to the private enjoyment of his or her property. Pa. Const. art. I,
[J-97-2018] - 20
§ 1. Although zoning ordinances may reasonably limit this right, they are in derogation of
a person’s property rights, and thus must be strictly construed. Newtown Square E., L.P.,
101 A.3d at 51; 1 Pa.C.S. § 1928(b)(8). In determining the extent of a restriction in a
zoning ordinance upon the use of land, “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 property owner and against any implied extension of the restriction.”
53 P.S. § 10603.1.9
While the Statutory Construction Act10 does not specifically apply to our
construction of zoning ordinances, we have nonetheless applied these principles in our
interpretive decisions. Tronjacki v. Bd. of Supervisors Solebury Twp., 842 A.2d 503, 509
(Pa. 2004). Thus, undefined words and phrases that appear in a zoning ordinance are to
be given their “plain and ordinary meaning.” Southco, Inc. v. Concord Twp., 713 A.2d
607, 609 (Pa. 1998); 1 Pa.C.S. § 1903(a). Where a word or phrase in a zoning ordinance
is defined, a court is bound by the definition. Hughes v. Sch. Dist. of Pgh., 108 a.2d 698,
699 (Pa. 1954).
The zoning district in question permits, in relevant part, single-family detached
dwellings. Ordinance, § 302. A “dwelling” is a building or structure to be used as “living
quarters for one or more families,” but does not include “hotel, motel, rooming houses or
other tourist home.” Id., § 201.4. “Family” is defined in the Ordinance as “[o]ne or more
persons, 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.”
9 Act of Dec. 21, 1988, P.L. 1329, No. 170, § 48.
10 1 Pa.C.S. §§ 1501-1991.
[J-97-2018] - 21
Id., § 204.1. While “single housekeeping unit” is undefined in the Ordinance, as we have
already discussed at length, “single housekeeping unit” is a term of art that is widely used
in zoning ordinances. This Court has adopted the common definition of “single
housekeeping unit,” used by courts throughout the country, as requiring the person or
persons residing in the home to function as a family and to be “sufficiently stable and
permanent” and not “purely transient.” Albert, 854 A.2d at 409-10; Miller, 515 A.2d at
907-09. Thus, by defining “family” by requiring “a single housekeeping unit,” the
Ordinance clearly and unambiguously excluded, in pertinent part, purely transient uses
of property in Zoning District A.
This is entirely consistent with the long-recognized goals of creating a residential
zoning district. See Vill. of Belle Terre, 416 U.S. at 9; Vill. of Euclid, 272 U.S. at 388;
Albert, 854 A.2d at 409. As a California appellate court observed, short-term rentals of
homes located in a single-family residential zoning district “undoubtedly affect the
essential character of a neighborhood and the stability of a community.” Ewing v. City of
Carmel-By-The-Sea, Cal. Rptr. 382, 388 (6th Dist. 1991).
Short-term tenants have little interest in public agencies or in
the welfare of the citizenry. They do not participate in local
government, coach little league, or join the hospital guild.
They do not lead a Scout troop, volunteer at the library, or
keep an eye on an elderly neighbor. Literally, they are here
today and gone tomorrow—without engaging in the sort of
activities that weld and strengthen a community.
Id. The permanence and stability of people living in single-family residential zoning
districts creates a sense of community, cultivates and fosters relationships, and provides
an overall quality of a place where people are invested and engaged in their neighborhood
and care about each other. This is a place where children can play together, neighbors
[J-97-2018] - 22
can know each other and look out for one another, and people can enjoy the “quiet
seclusion” of their homes. Vill. of Belle Terre, 416 U.S. at 9; Albert, 854 A.2d at 409.
In the case at bar, the Commonwealth Court failed to discuss, let alone interpret,
the definition of “family” as defined in the Ordinance or its requirement of “a single
housekeeping unit.” Indeed, it ignored entirely our decision in Miller and distinguished
our decision in Albert without any discussion or analysis. Instead, it relied on its own
factually inapposite and legally inaccurate decisions in Marchenko and Shvek.
In Marchenko, the owner of a single-family dwelling in a low-density R-1 residential
district in Pocono Township, Monroe County, advertised on the Home Away website for
short-term rentals to help cover her personal expenses. Marchenko lived in the house
62% of the time, and she rented the house the remaining 71 days of the year. While the
home was rented, she stayed with a friend in New Jersey and kept her belongings in the
home in a locked bedroom. The township zoning officer issued a notice describing
Marchenko’s use of the property as “vacation rentals,” which did not constitute a “single-
family detached dwelling” under the zoning ordinance. Although the township’s ordinance
included no reference to or definition of “vacation rentals,” the zoning hearing board
denied Marchenko’s appeal. The trial court affirmed, stating that this Court’s decision in
Albert established a policy against transient uses in single-family-dwelling districts, thus
barring the use in question in a single-family residential district.
Marchenko appealed to the Commonwealth Court, which reversed. That court
started with the proposition that a zoning hearing board is charged with construing the
language of a zoning ordinance as broadly as possible to give the landowner the benefit
of the least restrictive use. The local zoning ordinance required occupancy exclusively
[J-97-2018] - 23
by one family, which it defined as “one or more persons, related by blood, adoption or
marriage, living and cooking together in a dwelling unit as a single housekeeping unit,”
or, alternatively, as “a number of persons living and cooking together in a dwelling unit as
a single housekeeping unit though not related by blood, adoption or marriage, provided
that they live together in a manner similar to a traditional nuclear family.” Marchenko, 147
A.3d at 950. The Commonwealth Court found that Marchenko constituted the only
“family” using the residence,11 and that she used the premises as her primary residence.
Thus, the “family” was not “purely transient,” as per the limitation in Albert, and the
residence fit the ordinance’s definition of a “single-family dwelling unit” (“a detached
building designed for and occupied exclusively by one family”). Id. As here, the
Commonwealth Court did not discuss the term of art “single housekeeping unit” used in
the ordinance’s definition of “family” or its plain meaning. Instead, it concluded that
because the ordinance failed to bar short-term rental use under the definition of a “single-
family dwelling unit,” and because such use was not addressed by any other provisions,
11 The Marchenko majority did not amplify on the “family” occupying the property during
rental periods. In a dissenting opinion, Judge Pelligrini suggested that the majority’s
theory was that each successive group of renters constituted another “family” for
purposes of compliance with the ordinance. Id. at 952 (Pelligrini, J., dissenting).
According to Judge Pelligrini, “if the house was rented out every day of the year to a
different group of renters, each of those groups would be a ‘family.’” Id.
Judge Pelligrini disagreed that Marchenko’s use met the ordinance’s definition of “family.”
He stated that “no matter how much you stretch that definition of family to benefit
Marchenko, it cannot be stretched to include renting to multiple parties for short-term
stays.” Id. Instead, relying on this Court’s decision in Albert, and believing the majority’s
conclusion to be in conflict with Albert, Judge Pelligrini observed that short-term rentals
create high levels of instability and transience and that the use was not permitted. Id. at
954.
[J-97-2018] - 24
the intermediate appellate court concluded that a broad interpretation of its language
allowed the rentals. Id.
In Shvekh, a husband and wife purchased a single-family home located in a
residential zoning district that permitted single-family dwellings but disallowed hotels,
motels, resorts and other lodging services. The new house was intended to be used as
the couple’s primary residence. After they were unable to sell their old home, and
subsequently separated, they instead decided to occupy the new house for approximately
one week every month and to rent it out the remainder of the time, in partnership with the
wife’s mother. Shvekh, 154 A.3d at 410-11. They listed the house for rent on various
short-term rental websites. Relying on this Court’s Albert decision, the zoning hearing
board found that the use was not permitted, as it was the functional equivalent of a hotel
or tourist home, and not sufficiently stable and permanent to be considered a single-family
residence. Id. at 411. The trial court affirmed this decision.
Shvekh appealed to the Commonwealth Court, which reversed. In so doing, the
Commonwealth Court distinguished Albert on the basis that it involved a halfway house
that was to be used in a “purely transient” manner, whereas the use in question was not
because the owners occupied the house on a monthly basis.12 Id. at 413. Further, the
Commonwealth Court found significant that the use in Albert required a license and, “by
contrast,” renting a house to vacationers required no license of any sort. Id. While finding
Marchenko to be factually distinguishable because the owners in Shvekh did not use the
house as their primary residence, the Shvekh court nonetheless found Marchenko to be
12 Notably, the definition of “family” in the ordinance involved in Shvekh did not include
the “single housekeeping unit” term of art. See Shvekh, 154 A.3d at 412.
[J-97-2018] - 25
“controlling” as “the zoning ordinance did not prohibit the owner of a ‘single-family
dwelling’ from renting it out.” Id. at 413, 415.13 According to the Commonwealth Court,
“a municipality cannot advance a new and strained interpretation of its zoning ordinance
in order to effect what it would like the ordinance to say without an amendment.” Id. at
414.
In these decisions, the Commonwealth Court has improperly narrowed our
decision in Miller to eliminate the “functional analysis” that we adopted and employed.
The intermediate appellate court’s requirement in Marchenko (applied both in Shvekh and
in the case at bar) that any use not specifically prohibited will be deemed permitted is not
only contrary to our above-discussed precedent, but also to our prior decision in Silver v.
Zoning Bd. of Adjustment, 112 A.2d 84 (Pa. 1955), wherein we held that uses not
expressly permitted in a zoning ordinance “are excluded by implication.” Id. at 87. See
also Lex v. Zoning Hearing Bd. of Hampton Twp., 725 A.2d 236, 238 (Pa. 1999) (relying
on Silver to find that a residential district that permitted the use of sheds on property did
13 The Shvekh court also noted that the ordinance in question defined a “single-family
dwelling” as “a detached building designed for or occupied exclusively by one family.”
Id. at 414 (emphasis supplied). It found that because the home was “designed for” a
family, the use of the disjunctive rendered it irrelevant whether the home was in fact
occupied by one. Id. This is an absurd and unreasonable interpretation. See, cf.,
Northampton Area Sch. Dist. v. Zoning Hearing Bd. of Twp. of Lehigh, 64 A.3d 1152,
1157 (Pa. Commw. 2013) (when interpreting a zoning ordinance, a court must presume
the drafters did not intend a result that is absurd, unreasonable or impossible to execute);
1 Pa.C.S. 1922(1). Single-family homes generally are “designed for” use by a family but,
as discussed infra, they can be used in a multitude of ways, including for a commercial
enterprise. There is no question that a commercial entity would not be permitted in a
residential zoning district limited to single-family dwellings simply by virtue of the fact that
the business operated out of a house.
[J-97-2018] - 26
not extend to “raising and housing pigeons” therein, as this was not an expressly
permitted use).
This excluded-unless-expressly-included standard, combined with Miller’s
“functional analysis,” is the only workable standard. A single-family home (or other
structure) can be used in as many ways as the imagination allows – for example, as a
restaurant, a bakery, a bed and breakfast, a school, a store, a veterinary hospital, a
halfway house or a pigeon sanctuary. The rule announced by the Commonwealth Court
is impossible for drafters of zoning ordinances to execute. Therefore, we overrule these
decisions on that basis.14
Moreover, requiring that zoning ordinances state every conceivable impermissible
use would negate the deference to which a zoning hearing board is entitled in the
interpretation of its municipality’s zoning ordinances. See Broussard v. Zoning Bd. of
Adjustment of City of Pittsburgh, 907 A.2d 494, 500 (Pa. 2006) (“courts ordinarily grant
deference to the zoning board’s understanding of its own ordinance because, as a
general matter, governmental agencies are entitled great weight in their interpretation of
legislation they are charged to enforce”) (internal quotation marks omitted). If the
Commonwealth Court were correct, and unlisted uses are necessarily permitted in a given
zoning district, there would be nothing for the zoning hearing board to interpret.
We agree with Appellants that the Commonwealth Court’s decisions have slowly
eroded our decision in Albert, from Marchenko (allowing some transient use) to Shvekh
(allowing mostly transient use) and now in the case at bar (allowing purely transient use),
14Whether the outcomes of Marchenko and Shvekh are otherwise correct is not presently
before this Court.
[J-97-2018] - 27
differentiating Albert on less and less convincing grounds. Contrary to the
Commonwealth Court’s conclusion below (and the advocacy provided by Amicus), there
is nothing in our Albert decision that limits its utility to cases where the zoning ordinance
leaves the word “family” undefined. As stated above, Albert incorporated the definition of
“single housekeeping unit” as the common usage of the word “family” in a zoning
ordinance, which is the phrase used in the Ordinance here to define “family.”
We find Amicus’ attempt to distance the Miller and Albert decisions from the case
at bar based on the “housekeeping units,” i.e., the individuals to whom the respective
properties were being rented, to be unconvincing. Even if we could accept, for the sake
of this argument, the contention that the signer of the lease of the Property constituted
the “family,” and the remaining eleven to sixteen people staying at the Property were his
or her guests, this argument fails. Our holding in Albert could not be clearer: a purely
transient use of a property is incompatible with the definition of a “family” defined as “a
single housekeeping unit.” As the signor of the rental agreement for the Property is
likewise transient, staying at the Property for only a few days at a time, that individual
cannot constitute a “family” as defined.
We further find that Amicus’ reliance upon our decision in Peterson for affirmance
of the Commonwealth Court’s decision to be misplaced, as Peterson amply supports our
decision reversing that court. Although Amicus is correct that in that case, we held that
a zoning ordinance’s inclusion of cement manufacturing as a prohibited use in a given
district did not extend to also prohibit concrete manufacturing, Amicus ignores the lengthy
discussion engaged in by the Peterson Court to differentiate the manufacture of cement
from that of concrete. See Peterson, 195 A.2d at 526. Based on a delineation of the
[J-97-2018] - 28
different processes for manufacturing cement and concrete, the Court observed that there
is “nothing inherently objectionable about the production of concrete, whereas cement
manufacture does work discomfort to the inhabitants of the vicinage.” Id. It thus
concluded that a cement manufacturing plant is not excluded by the ordinance based on
the stated exclusion of concrete manufacturing in the district because it is not the
functional equivalent of a concrete manufacturing plant. Id.
The requirement that courts strictly construe a zoning ordinance does not mean
that they must ignore uses that clearly fall outside those that are permitted by the
ordinance. See, e.g., Lex, 725 A.2d at 238 (supra, pp. 26-27). The use of the Property
is not by a “family” because the users do not function as a “family” as defined by the
Ordinance. There is no ambiguity in the language of the Ordinance because there is no
ambiguity in the phrase “single housekeeping unit” that is at the heart of the definition of
“family.” Zoning District A permits the use of a single-family detached dwelling. This
requires use by a single housekeeping unit. This Court has clearly and straightforwardly
defined single housekeeping unit as precluding purely transient use.
The use in the case at bar is purely transient. Individuals rent the premises for a
minimum of two nights and up to one week at a time. Kleyman estimated that the Property
was rented twenty-five separate times over a one-year period. As Kleyman
acknowledged during his testimony, this fits squarely within the common usage of the
word “transient.” See N.T., 11/12/2014, at 310. The use is not as a single-family dwelling,
[J-97-2018] - 29
i.e., use by a single housekeeping unit, and therefore, is not a permitted use in Zoning
District A.15
We therefore reverse the decision of the Commonwealth Court and reinstate the
decision of the Board, as affirmed by the trial court.
Chief Justice Saylor and Justices Baer, Todd, Dougherty, Wecht and Mundy join
the opinion.
15 On February 20, 2019, Amicus filed a request for post-submission communication
contending that a recently decided case of the Georgia Supreme Court, Morgan Cnty. v.
May, __ S.E.2d __, 2019 WL 654190 (Ga. Feb. 18, 2019), was instructive. We grant
Amicus’ request to submit the communication, but disagree that it is helpful, let alone
instructive. While the May case involved the permissibility of short-term rentals in a
residential zoning district, the ordinance in question used different language than the
Ordinance at issue here. Most notably, the Morgan County ordinance did not use the
phrase “single housekeeping unit,” as the Ordinance does. Thus, we need not discuss
the decision, which necessarily is not precedential.
[J-97-2018] - 30