Argued: April 20, 2017
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE JOSEPH M. COSGROVE, Judge (P) HONORABLE JAMES
GARDNER COLINS, Senior Judge
M. COSGROVE, Judge
of Life, LLC and Val Kleyman (Appellants) appeal from an
Order of the Court of Common Pleas of Monroe County (Trial
Court), which upheld the decision of the Hamilton Township
(Township) Zoning Hearing Board (Board or Appellees). The
Board's decision denied Appellants' land use request
with respect to the use of a single-family dwelling as part
of a transient lodging business. Upon review, we reverse.
own a property located at 473 Pensyl Creek Road, Stroudsburg,
Pennsylvania, 18360, Monroe County PIN No.
#07-6279-02-13-7188 (Property). (R.R. 1112a.) Slice of Life,
LLC is a limited liability company formed, organized, and
existing under the laws of the Commonwealth of Pennsylvania
and is the record owner of the Property. Val Kleyman is the
sole member of Slice of Life, LLC and resides in Brooklyn,
New York. (R.R. at 483a.)
22, 2014, the Township Zoning Officer (Zoning Officer) issued
an Enforcement Notice to Appellants charging them with
violations of Article IV, Section 402.1 of the Township
Zoning Ordinance (Ordinance) with respect to the Property.
The Enforcement Notice charged Appellants with "[u]se of
[the Property] as Hotel and/or other types of transient
lodging, Rental of Single Family Residential Dwelling for
transient tenancies." The Enforcement Notice required
Appellants to cease this activity by May 31, 2014. (Tr. Ct.
Op., 4/20/16 at 2.)
appealed the Enforcement Notice to the Board, which held
hearings on August 6, September 2, October 7, November 12,
and December 9, 2014, as well as on March 31, May 5, and June
2, 2015. Id.
12, 2015, the Board issued its decision, denying
Appellants' appeal of the Enforcement Notice. (R.R. at
6a.) Thereafter, on July 1, 2015, Appellants filed their
appeal with the Trial Court. Id.
April 20, 2016, the Trial Court denied the appeal, thereby
affirming the decision of the Board. Id. at 13a. The
Court found the Board did not abuse its discretion when it
upheld the violation under the Enforcement Notice because of
the "extensive evidence" that "the profit motive
is the entire basis for the relationship" of the property
as a commercial enterprise. Consequently, it found that based
upon the totality of the circumstances, Appellants are not
operating a single family dwelling, but rather conducting a
short-term, transient lodging business, using the Property as
part of that business enterprise, with a clear profit motive
at the Property. This appeal followed.
issues as set forth in Appellants' brief are:
1. [Did the Trial Court err] in holding that Section 402.1 of
the Ordinance does not permit the use of the Property as part
of a short-term transient lodging enterprise?
2. [Did the Trial Court err] in holding that:
"…while this Ordinance has a definition for
'family, ' the principle behind Albert v. Zoning
Hearing Bd. of N. Abington Twp., 854 A.2d 401 (Pa.
2004)["] still applies?
3. [Did the Trial Court err] in holding that "it is
clear there is no substantial evidence that Appellants'
use of the Property does not [sic] qualify as a permitted use
in that zoning district under the Ordinance?"
4. [Is] the Ordinance unconstitutionally vague because it
prohibits Appellants' use of the Property?
5. Does the Ordinance unconstitutionally exclude the use of a
detached single-family dwelling for short-term rental?
6. [Did the Trial Court err] in finding that "there is
an identified, protected public interest at issue: the
health, safety, and welfare of the public?"
7. [Did the Trial Court err] when if [sic] failed to
recognize that the U.S. Constitution is based on individual
ownership of land and zoning regulations are in derogation of
the common law, and, therefore, are to be strictly construed
and interpreted to allow the widest use of land and, as a
result the Trial Court's interpretation of the Ordinance
is an unconstitutional taking of real estate?
(Appellants' Br. at 15-17.)
begin, a thorough examination of the relevant parts of the
Ordinance is necessary. Article I, Section 103 states, in
pertinent part: "Purpose of Ordinance This
[Ordinance], …was established in accordance with the
objectives of the 'Pennsylvania Municipalities Planning
Article IV, Section 402.1 further states in part:
Permitted Uses (Use Class 1 through 8)
"Permitted Uses" listed in Schedule I [of the
Ordinance] shall require no special action by the Zoning
Hearing Board or by the Planning Commission before a Zoning
Permit is granted by the Zoning Officer.
Use Class 1 - Single Family Residential
Permitted uses include: (a) Single family detached dwellings
(R.R. at 49a (emphasis in original).)
is defined in the Ordinance as: "[a] building or
structure designed, arranged, intended, or used as the living
quarters for one or more families living independantly [sic]
of each other upon the premises. The term 'dwelling'
shall not be construed to include hotel, motel, rooming house
or tourist home." (R.R. at 37a.)
is defined in the Ordinance as: "[o]ne or more person,
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."
(R.R. at 38a.)
is defined in the Ordinance 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." (R.R. at 40a.)
I lists the Regulations Governing The Use Of
in the Township based upon zoning districts. Id. at
46a. Pursuant to Schedule I, the Property is located in
Zoning District "A, " a residential zoning district
in which only single-family residential use is
permitted. Id. at 189a; 646a-647a; Bd.
Hr'g, Notes of Testimony (N.T.), 12/9/14, at 364-65.
terms "single family, " "tourist home, "
"transient lodging, " and "transient
tenancies" are not defined in the Ordinance.
upon the language of the Ordinance, Appellees assert that the
use of the Property did not meet any of the permitted uses
set forth in Zoning District A. They argue that a
"transient lodging business" is not listed as a
permitted use in any of the Zoning District A Use Classes.
Appellees assert "[Appellants] are collectively
conducting a transient lodging business and using the
[Property] as part of that business enterprise."
(Appellees' Br. at 10.)
argue this matter is governed and controlled by Albert v.
Zoning Hearing Board of North Abington Township, 854
A.2d 401 (Pa. 2004), particularly with regard to
Appellants' argument that their use of the Property is
consistent with a single family residential use. The
Albert case focused the inquiry on whether a
single-family dwelling could be used as a halfway house for
recovering alcoholics and drug addicts in an R-1 low density
residential zoning district. The court in Albert was
forced to examine the meaning of the term "family"
as the term was not defined in the ordinance in question.
"In light of these definitions [contained in the
ordinance], the parties and the lower tribunals agree that
whether or not the Retreat qualified as a 'single-family
detached dwelling' ultimately turns on the meaning of
'family' which the [o]rdinance does not
define." Id. at 404. (Emphasis added.)
This ambiguity allowed the court to examine and incorporate
the generally understood meaning of the term
"family" into the zoning ordinance in that case.
Appellees here assert that Appellants' use of the
Property as part of a transient lodging enterprise is
completely irreconcilable with the notion of a single family
residential zoning district.
counter that the Township cannot read unspecified
requirements into the meaning and definition of "family,
" which is set forth in the Ordinance. See JALC Real
Estate Corporation and Community Foundation for Human
Development v. Zoning Hearing Board of Lower Salford
Twp., 522 A.2d 710, 713 (Pa. Cmwlth. 1987) (where the
zoning ordinance provides an operative definition of what
constitutes 'family, ' that definition controls);
see also Mary A. Reed v. The Zoning Hearing Board of West
Deer Township, 377 A.2d 1020 (Pa. Cmwlth. 1977).
Reed, the township suggested a single-family
dwelling could be more strictly interpreted and limited than
the plain words of the definition itself. This Court rejected
the township's argument that the definition of
"mobile home" in the ordinance disqualified it from
being a single-family detached dwelling, because the
definition did not explicitly describe it as such. In finding
for the property owner, the Court stated:
Restrictions imposed by zoning ordinances must be
strictly construed; they may not be construed so as to
restrict the use of land by implication. The Township
here asks us to infer from [the ordinance's] definition
of a mobile home that a mobile home cannot be a single-family
dwelling. Even if we were able to find support for such an
inference in the definition, we could not have it prevail
over a definition of a single-family dwelling [that] clearly
include[es] a mobile home. (Emphasis added.)
Reed, 377 A.2d at 1021 (citation omitted).
matter before us, no evidence was presented that the guests
of the tenant under the lease were legal occupants or
residents of the Property and thus, part of the tenant's
family. Rather, the record here clearly supports that guests
were just that, simply guests of the tenant/family.
Q [Atty. Riegel] Now in your [package, the Luxury Stay, LLC
Welcome to Pensyl Creek packet] you indicate that the - that
Luxury Stay is not responsible for the guest's or their