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Slice of Life, LLC v. Hamilton Township Zoning Hearing Board

Commonwealth Court of Pennsylvania

June 21, 2017

Slice of Life, LLC and Val Kleyman, Appellants
Hamilton Township Zoning Hearing Board and Hamilton Township

          Argued: April 20, 2017



          JOSEPH M. COSGROVE, Judge

         Slice 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.

         I. Background

         Appellants 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.)

         On May 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.)

         Appellants 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.[1] Id.

         On June 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.

         On 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"[2] that "the profit motive is the entire basis for the relationship"[3] 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.[4]

         II. Issues

         The 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.)

         III. Discussion

         A. The Ordinance

         To 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 Code' [(MPC)[5]…."

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).)

         "Dwelling" 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.)

         "Family" 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.)

         "Hotel" 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.)

         Schedule I lists the Regulations Governing The Use Of Land[6] in the Township based upon zoning districts.[7] 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.[8] Id. at 189a; 646a-647a; Bd. Hr'g, Notes of Testimony (N.T.), 12/9/14, at 364-65.

         The terms "single family, " "tourist home, " "transient lodging, " and "transient tenancies" are not defined in the Ordinance.

         B. Permitted Use

         Based 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.)

         Appellees 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.

         Thus 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.

         Appellants 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).

         In 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).

         In the 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 ...

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