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Shvekh v. The Zoning Hearing Board of Stroud Township

Commonwealth Court of Pennsylvania

February 6, 2017

Irina Shvekh, Appellant
v.
The Zoning Hearing Board of Stroud Township and Township of Stroud

          Argued: December 15, 2016

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JULIA K. HEARTHWAY, Judge.

          OPINION

          MARY HANNAH LEAVITT, PRESIDENT JUDGE

         Irina Shvekh appeals an order of the Court of Common Pleas of Monroe County (trial court) that affirmed the decision of the Zoning Hearing Board (Zoning Board) of Stroud Township (Township). The Zoning Board denied Shvekh's appeal of an enforcement notice citing her for operating a tourist home in violation of the Township's Zoning Ordinance.[1] Shvekh maintains that the vacation rental of her home is not addressed in the Zoning Ordinance and, thus, permissible. For the following reasons, we reverse.

         Shvekh and her son-in-law, John-Pierre Conques, own real property at 647 Metzgar Road, Stroudsburg (Property), which is located in the Township's S-1 Special and Recreational Zoning District (S-1 District). The Property is comprised of approximately three acres and improved with a single-family home with five bedrooms and three and one-half bathrooms.

         On May 6, 2015, the Township's Zoning Officer issued a notice of violation to Shvekh asserting that the Property was being used as a tourist home, which is not permitted within the S-1 District.[2] Shvekh appealed the notice, and the Zoning Board conducted hearings on July 15, 2015.

         The Zoning Officer testified at the hearing that tourist homes are permitted in the C-1, C-2, and C-3 Zoning Districts but not in the S-1 District. R.R. 22a-23a; Notes of Testimony, 7/15/2015, at 20-21 (N.T.). The Zoning Officer also testified that the Property was listed on websites for vacation home rentals as "Tannersville holiday house, " which "welcome[s] events, birthdays, weddings, up to a hundred people." R.R. 26a-27a; N.T. 24-25. The Zoning Officer testified that the Township had received complaints from neighbors about the rentals.

         The Zoning Officer did not explain how the Property was being used as a "tourist home." She agreed with Shvekh's counsel that a "tourist home" refers to a use where the owner rents out single bedrooms to different people, and not the entire dwelling to one group. R.R. 38a-39a; N.T. 36-37. Nevertheless, the Zoning Officer opined that because the Property was rented out for short periods of time, some as short as a weekend, it was being used as a tourist home. R.R. 38a; N.T. 36.

         Svetlana Conques, who is Shvekh's daughter and the wife of John-Pierre Conques, testified that her family purchased the Property in 2013 with the intent to occupy it as their primary residence. However, she and her husband were unable to sell their other home. The couple subsequently separated. Mrs. Conques testified that she and her mother, Shvekh, reside at 228 Glenoak Drive, East Stroudsburg, and her husband lives in New Jersey. In light of these developments, the family decided to rent out the Property from time to time.

         Mrs. Conques testified that she listed the Property for rent on VRBO, a website that advertises vacation homes, directly and through other websites. The website described the Property as a five-bedroom house that can accommodate up to 15 overnight guests. Mrs. Conques testified that she did not know the origin of the description "Tannersville holiday house" that appeared online. She testified that the Property had never been advertised as a place for events for up to 100 people and that she did not allow college parties or proms at the Property. On occasion, she checked renters' identification to make sure that they were "a family or several families staying together." R.R. 130a; N.T. 128. She testified that the standard lease agreement stated that birthdays and anniversaries could be celebrated there "only as a family gathering." R.R. 127a; N.T. 125. The lease agreement requires a minimum rental of two nights, and it does not include any meals.

         Mrs. Conques testified that she and her family occupy the Property approximately one week a month, when it is not rented out. Her husband also stays at the Property with his family. Mrs. Conques visits the Property several times a week to check on it. Over the 12 months prior to the hearing, she rented the Property 20 to 25 times. One tenant stayed for a month; others stayed for two weeks or less. There were three months when the Property was not rented at all. Mrs. Conques denied that she is engaged in a commercial business.

         The Zoning Board also heard testimony from four of Shvekh's neighbors: Stephen Predmore, Richard Croll, Giovanny Nunez, and Betty Kemp. They complained that renters at the Property created noise and other disturbances in the neighborhood.

         On November 4, 2015, the Zoning Board denied Shvekh's appeal, finding that Shvekh had been engaged in short-term rentals of the Property on a continuous basis; that neither Shvekh nor Mr. Conques claimed the Property as a primary residence; and that the Property was rented to groups of more than three persons unrelated by blood or marriage. The Board found that the lease agreement used by Shvekh did not limit the number of families who may occupy the premises or place any restriction on the relationship of the persons occupying the Property. The Board further found that the tenants of the Shvekh Property "[were] often groups who [came] together for the weekend and then [returned] to their own families and/or households." Board Decision at 9.

         The Zoning Board concluded that using the Property for the "short-term, transient rentals [was] more typical of a hotel or tourist home, where vacationers or travelers would not be considered to be maintaining a residence in the ordinary meaning of the phrase." Board Decision at 10. Because a tourist home is not permitted in the S-1 District, the Board held that Shvekh's use of the Property violated the Zoning Ordinance.

         To reach its conclusion, the Zoning Board relied on our Supreme Court's decision in Albert v. Zoning Hearing Board of North Abington Township, 854 A.2d 401, 410 (Pa. 2004), which established the principle that a single-family home is one "sufficiently stable and permanent so as not to be fairly characterized as purely transient." A home used by "purely transient" occupants will violate a zoning requirement that limits the permitted use to a single family residence. Board Decision at 12.

         Shvekh appealed to the trial court, and it affirmed the Zoning Board's decision without taking additional evidence. Shvekh now appeals to this Court.[3]

         On appeal, Shvekh argues that the Zoning Board erred. She contends that the Zoning Board did not give a liberal interpretation to the Zoning Ordinance to permit her the broadest possible use of her property, as it is required to do. She also argues that the Zoning Ordinance is unconstitutionally vague because its definitions for "family" and "group (family type) dwelling occupancy" conflict. We address these issues seriatim.

         In her first issue, Shvekh argues that by holding that the Property was being used as a "tourist home, " the Board construed the Zoning Ordinance in a way that cannot be reconciled with the actual language therein. The Zoning Officer acknowledged a tourist home is a use where the owner rents out less than the entire dwelling. By contrast, Shvekh rented out the entire home. Shvekh argues that she used the Property for "vacation rentals, " which, under a "liberal construction of the Ordinance, " is a permissible use of a "single-family dwelling." Shvekh Brief at 16. The Zoning Board's "overly narrow and rigid" interpretation of the Zoning Ordinance restricted her to "the narrowest use of her property." Id. at 11, 17. Shvekh further argues that the Board's reliance on Albert is misplaced because that case involved a halfway house for recovering alcoholics, which is dissimilar to a vacation rental of a single family home. Id. at 19-20.

         A zoning hearing board "has an obligation to construe the words of an ordinance as broadly as possible to give the landowner the benefit of the least restrictive use when interpreting its own Zoning Code." Riverfront Development Group, LLC v. City of Harrisburg Zoning Hearing Board, 109 A.3d 358, 366 (Pa. Cmwlth. 2015). Any doubt must be resolved in favor of the landowner. It is an abuse of discretion for a zoning board to construe the terms of an ordinance for the intended purpose of restricting a property's use. Id. In construing local zoning ordinances, ...


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