Berks County Bar Association The Berks Barrister Winter 2019 - 10

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Short Stays Spark New Zoning, Land Use Rules
Continued from page 9

at an out of state location with friends. After the issuance of
an NOV by the Township Zoning Officer, due to complaints
by neighbors that the house had become a "party house," the
Township Zoning Hearing Board determined that the rental
of the residence was commercial in nature, and that the house
was being rented as a "lodge," and that this commercial lodge
use was not a single family residential use, in violation of the
low density residential provisions of the zoning Ordinance.
This determination of violation was upheld by the Court of
Common Pleas of Monroe County. Marchenko appealed
to the Commonwealth Court. The Commonwealth Court,
reversing the determination of the Court of Common Pleas,
held that the primary use of the property was single family
residential, and that the zoning Ordinance definition of the
term "single-family dwelling" did not prohibit short term
rental to others by the owner. The Court found that the
zoning Ordinance did not prohibit short-term rentals in its
definition of "single-family dwelling," and the property did not
meet the common definition of a "lodge" (required a purpose
of the building as a base for outdoor activities), and it reversed
the lower court's affirmation of the zoning officer's NOV.
Shvekh v. Zoning Hearing Board of Stroud Township, 154 A.3d
408 (Pa. Commw. February 6, 2017):
In Shvekh, the property owner, Irina Shvekh, purchased
a single-family residence in Stroud Township, Monroe
County. The house was located in the Township's S-1 Special
and Recreational Zoning District. In that zoning district,
"tourist homes" were not a permitted use. Initially, when she
purchased the house, Shvekh intended to utilize it as as her
primary residence, but when she found herself unable to sell
her other house, she began offering the house for short term
rental on Airbnb and VRBO, renting the house for minimum
stays of two nights approximately twenty to twenty five times
over a one year period, and living there approximately one
week a month. The Zoning Officer took the position that
this pattern of use rendered the property as a "tourist home"
and issued an NOV, which Shvekh appealed to the Zoning
Hearing Board, which upheld the NOV, finding short term
and transient rentals to be more typical of a motel or tourist
home, where travelers and vacationers would not be considered
to be maintaining a residence. The Court of Common Pleas
of Monroe County affirmed the finding of violation. On
appeal, the Commonwealth Court held that the property was
not being used as a "tourist home," defined to include rentals
of individual rooms on a nightly basis, because the owner
was periodically renting out the entire home, which "bears
no relation to the bedroom-by-bedroom rental that is the
hallmark of the tourist home." 154 A.3d at 414-15. The Court
stated, "Airbnb has expanded the possible uses of a single10 | Berks Barrister

family dwelling, and the Township can address these new uses
in the Zoning Ordinance. 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.'" Id. at 415.
The Commonwealth Court further held that the property was
within the definition of a "single-family dwelling," as it was "a
detached building designed for or occupied exclusively by one
family." Whether or not the property was exclusively occupied
by one family, it was, clearly, designed for one family. Based on
the Zoning Ordinance definitions, the Commonwealth Court
reversed the zoning hearing board's and trial court's upholding
of the enforcement notice against the property owner.
Slice of Life, LLC v. Hamilton Township Zoning Hearing Board,
164 A.3d 633 (Pa. Commw. June 21, 2017):
Here, the property owner, who lived in New York City,
owned the property in question through a limited liability
company. Rentals for short-term stays were part of a larger
business enterprise involving multiple properties. The zoning
district in which the subject property was located allowed
only single-family residential uses. The property owner was
issued an NOV, alleging use as a "Hotel and/or other types
of transient lodging, Rental of Single Family Residential
Dwelling for transient tenancies." Although "hotel" use was
a defined term in the zoning Ordinance, that definition was
found not to apply due to a requirement of a minimum of ten
rooms being offered for rent. The property at issue only had
six rooms for rent. Likewise, the terms "transient lodging"
and "transient tenancies" which had been used in the NOV
to denote a violation were not defined terms in the Zoning
Ordinance. The Commonwealth Court, on appeal, found
binding precedent in the recent Shvekh and Marchenko, cases,
and held that zoning hearing boards may not "shoe-horn" new
uses into defined terms. The Court stated that "the Board here
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." Id. at 633
(citing Shvekh, 154 A.3d at 415). According to the Court,
the property owner proved that the Ordinance language
was ambiguous, and, accordingly the Court concluded that
it was required to interpret the language of the Ordinance
in favor of the landowner and against any implied extension
of a restriction on the use of the landowner's property. On
February 21, 2018, a petition for allowance of appeal to the
Supreme Court of Pennsylvania was granted, and the case
was argued before the Court on December 5, 2018. The issue
before the Supreme Court is "[w]hether the Commonwealth
Court disregarded the binding precedent of this Court, set


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Berks County Bar Association The Berks Barrister Winter 2019

Table of Contents for the Digital Edition of Berks County Bar Association The Berks Barrister Winter 2019

Berks County Bar Association The Berks Barrister Winter 2019 - 1
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https://www.nxtbook.com/hoffmann/BerksBarrister/BerksBarrister_Springr2020
https://www.nxtbook.com/hoffmann/BerksBarrister/BerksBarrister_Fall-Winter2019
https://www.nxtbook.com/hoffmann/BerksBarrister/Berksbarrister_Summer2019
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https://www.nxtbook.com/hoffmann/BerksBarrister/Berksbarrister_Summer2018
https://www.nxtbook.com/hoffmann/BerksBarrister/berksbarrister_winter2017
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