Berks County Bar Association The Berks Barrister Winter 2019 - 12

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Short Stays Spark New Zoning, Land Use Rules
Continued from page 11

in which traditional "bed and breakfast" uses are permitted. The
Lancaster Ordinance requires registration and inspection, the
designation of a property manager, limits stays to a maximum
of thirty consecutive days, and contains occupancy limits. The
regulations in these Ordinances bear similarities to local regulation
of "student homes" in college towns, which have been upheld by
Pennsylvania courts, and there may be future challenges to the
right of municipalities to similarly regulate short term rentals.
While municipalities review and revise their respective zoning
Ordinances in light of the new issues that arise from the use of
these platforms by property owners, any ambiguity in the language
of the current land use regulations must be in favor of the property
owner and against any implied extension of a restriction on the
use of the property owner's property. See Slice of Life, 164 A.3d
633. Municipalities should ensure that their effort to fit a use into
a defined term could not be construed as an effort to "shoe-horn"
these uses into existing defined terms in violation of common-law.

Taxes
The question of whether the short-term rental is considered
a residential use is not only a concern in the area of land use, but
also as a matter of whether occupancy taxes or county hotel taxes
are applicable. Airbnb's website states that in Pennsylvania, guests
who book Airbnb listings will pay the following taxes on stays of
29 nights or less:
* 6% PA Hotel Occupancy Tax (6% of listing price including
any cleaning fee)
* Local Sales Taxes collected by the Commonwealth of 1%
of the listing price including cleaning fees (collected for
Allegheny and Philadelphia Counties)
Additionally, in Pennsylvania, Airbnb includes the following
county hotel room rental taxes for stays of 29 nights or less.
* Allegheny County 7% tax
* Butler County, 5%
12 | Berks Barrister

* Lackawanna County 7% tax (stays 30 nights or less)
* Lehigh County 4% tax (stays 30 nights or less)
* Luzerne County 5%
* Northampton County 4%
* Philadelphia City/County - 8.5% tax (stays 30 nights or less)
In a January 2 Lancaster OnLine article (1/2/19) by Junior
Gonzalez, Airbnb was quoted that in PA alone in 2018, 14,200
hosts earned approximately $122 million, with a typical host
earning about $5,200 in supplemental income. Figures provided
by Airbnb also showed 5,700 guests stayed at Airbnb-advertised
homes and rooms in Berks County, generating nearly $650,000 for
the hosts.
In October of 2018, Airbnb announced that it had remitted
over $21.2 million in tax revenue to the Commonwealth in the
past three years. Lancaster County, however, provides an example
of the complexities of tax collection arrangements in the sharing
economy. Airbnb had unsuccessfully attempted to enter into a tax
remittance agreement with the County earlier last year (Lancaster
County assesses a 3.9% hotel room tax and a 1.1% hotel excise
tax). The agreement was rejected by the County due to an alleged
lack of supporting documentation which would have been offered
and the County believed that Airbnb should be required to
utilize the same reporting and auditing standards as a traditional
hotel to ensure a level playing field. At this time, as a result of
the rejection of the agreement, the payment of these taxes is the
responsibility of the host. Registration with the County Treasurer
is also the responsibility of the host. Airbnb cites 500 Airbnb
hosts in Lancaster County. However, there are, according to the
County Treasurer, approximately 370 registered lodging providers,
including traditional hotels, bed and breakfast inns, and short term
rentals by owner. Bryant Cannon and Hanna Chung, Deputy
Attorney Generals in the California Department of Justice, in
"A Framework For Designing Co-Regulation Models WellAdapted To Technology-Facilitated Sharing Economies" state that
hosts participating in the online platforms, who come from both
sophisticated and unsophisticated backgrounds, lack an adequate


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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
Berks County Bar Association The Berks Barrister Winter 2019 - 2
Berks County Bar Association The Berks Barrister Winter 2019 - 3
Berks County Bar Association The Berks Barrister Winter 2019 - 4
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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
https://www.nxtbook.com/hoffmann/BerksBarrister/BerksBarrister_Springr2019
https://www.nxtbook.com/hoffmann/BerksBarrister/Berksbarrister_Winter2019
https://www.nxtbook.com/hoffmann/BerksBarrister/Berksbarrister_Summer2018
https://www.nxtbook.com/hoffmann/BerksBarrister/berksbarrister_winter2017
https://www.nxtbookmedia.com