Argued: December 15, 2016
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge,
HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JULIA K.
HANNAH LEAVITT, PRESIDENT JUDGE
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. 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.
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.
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. Shvekh appealed the notice, and the Zoning
Board conducted hearings on July 15, 2015.
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.
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.
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
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.
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.
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.
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.
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.
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.
appealed to the trial court, and it affirmed the Zoning
Board's decision without taking additional evidence.
Shvekh now appeals to this Court.
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
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.
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