George A. Reihner and Judith A. Reihner, his wife, Appellants
v.
The City of Scranton Zoning Hearing Board
Argued: September 11, 2017
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE JOSEPH M. COSGROVE, Judge HONORABLE JAMES GARDNER
COLINS, Senior Judge
OPINION
JAMES
GARDNER COLINS, Senior Judge.
George
and Judith Reihner appeal from an order of the Court of
Common Pleas of Lackawanna County that affirmed a decision of
the City of Scranton (City) Zoning Hearing Board (Board). In
its decision, the Board denied the Reihners' appeal of a
Notice of Violation (NOV) issued by the City's Zoning
Code Enforcement Officer for illegal operation of a Bed and
Breakfast (B&B) at the Reihners' home in violation of
the City's Zoning Ordinance (Ordinance). We conclude that
the Reihners have demonstrated that ambiguity exists in the
definition of "Bed and Breakfast Use" in the
Ordinance such that we must interpret the language of the
Ordinance in favor of the landowners. We therefore reverse
the order of the Court of Common Pleas.
The
Reihners are husband and wife who own and reside in a
single-family home located at 1010 Electric Avenue in the
City (Property), which is in the R-1A district, the
"Medium Low Density Residential District." (Board
Decision Finding of Fact (F.F.) ¶3; Ordinance §
301.A, Reproduced Record (R.R.) 228a.) The R-1A district
permits various residential uses, including Single Family
Detached and Semi-Detached Dwellings and Group Homes, and
certain agricultural and commercial uses, but does not permit
the "Bed and Breakfast Use." (Ordinance § 306
(Table of Permitted Uses).) The "Bed and Breakfast
Use" is defined in Section 202 of the Ordinance as
follows:
The use of a single family detached dwelling and/or accessory
structure which includes the rental of overnight sleeping
accommodations and bathroom access for a maximum of 10
temporary guests at any one time (except as otherwise
provided for in this Ordinance), and which does not provide
any cooking facilities or provision of meals for guests other
than breakfast. This use shall only include a use renting
facilities for a maximum of 14 consecutive days to any
person(s) and shall be restricted to transient visitors of
the area.
(Ordinance § 202, R.R. 201a.)
On or
about May 18, 2016, Jack Sweeney, the Zoning Code Enforcement
Officer, issued the NOV to the Reihners following the receipt
of complaints from several of the Reihners' neighbors.
(Board Decision F.F. ¶1; Aug. 10, 2016 Board Hearing
Transcript (H.T.) at 26-27, R.R. 34a-35a; Joint Ex. 1, R.R.
141a.) The NOV stated that the Reihners were operating a
B&B in the R-1A district in violation of Section 306 of
the Ordinance and they were required to eliminate the
offending activity within ten days of receipt of the order.
(Joint Ex. 1, R.R. 141a.) The Reihners promptly appealed the
NOV, and a hearing was held before the Board on August 10,
2016. At the hearing, Sweeney testified that he spoke to the
Reihners after receiving the complaints and they admitted
that they were receiving guests at their house who had booked
through the Airbnb website, [1] but they maintained that they
were not offering breakfast to the guests. (H.T. at 26-27,
R.R. 34a-35a.)
Judith
Reihner testified that she and her husband, along with the
youngest of their four children, live in a three-story
Victorian house on the Property. (H.T. at 36, R.R. 44a.) Mrs.
Reihner testified that she started using Airbnb for lodging
when visiting her son while he attended Stanford University
and continued using it for her visits to California over the
course of several years. (Id. at 38-39, R.R
46a-47a.) After renovating the third floor of their house,
the Reihners began offering rooms for rent on Airbnb in March
2016. (Id. at 39-40, R.R. 47a-48a.) The Reihners
offer three bedrooms on the third floor for rent through
Airbnb; the third floor has three bedrooms and one shared
bathroom with a door separating the second and third floors
that can be closed to offer privacy. (Id. at 36-37,
53, R.R. 44a-45a, 61a.) The Reihners also occasionally offer
one bedroom for rent on the second floor to return guests
whom they already know well. (Id. at 53, R.R. 61a.)
All bedrooms are offered for a maximum four-night stay.
(Id. at 72, R.R. 80a.) Mrs. Reihner stated that she
does not serve food and she does not consider her home to be
a B&B. (Id. at 63-64, 80, R.R. 71a-72a, 88a.)
Mrs. Reihner testified that an occupancy tax is deducted from
each one of her guests' bills and is remitted directly to
the Commonwealth pursuant to a policy that went into effect
on July 1, 2016. (Id. at 51-52, R.R. 59a-60a;
Appellants Ex. 3, R.R. 148a.) Mrs. Reihner testified that the
City has not enacted a tax applicable to Airbnb stays and
therefore she does not pay a tax to the city, nor has she
registered with Lackawanna County as a hotel. (H.T. at 53-54,
86-87, R.R. 61a-62a, 94a-95a.)
At the
hearing, several neighbors, including members of the
Greenridge Neighborhood Association (Greenridge), which
intervened below and filed a brief in this appeal, testified
in opposition to the Reihners' use of the Property as an
Airbnb establishment. The neighbors cited concerns related to
the presence of strangers in the neighborhood, parking in
front of neighbors' houses, a potential reduction in the
value of nearby homes, and the safety of the children who
play in the neighborhood. (H.T. at 90-127, R.R. 98a-135a.)
At the
conclusion of the hearing, the Board voted to uphold the NOV.
In an undated decision, the Board stated its conclusion that
"the activities described by Judith Reihner as to what
was taking place at her house through AIRBNB fit the
Ordinance definition of a Bed and Breakfast Use." (Board
Decision, Conclusion of Law ¶17.) The Reihners appealed
the Board's decision to the Court of Common Pleas, which
heard the appeal without taking additional evidence. The
lower court determined that the testimony that the Reihners
use their single-family dwelling to rent accommodations to
overnight guests for a maximum four-night stay clearly meets
the definition of a "Bed and Breakfast Use." (Court
of Common Pleas Opinion at 4-5.) Though the testimony was
uncontroverted that the Reihners do not offer breakfast at
their house, the lower court concluded that there is no
requirement in the Ordinance that breakfast be served and
instead the definition of "Bed and Breakfast Use"
states only that no other meal can be provided besides
breakfast. (Id. at 4.)
Where,
as here, the trial court has not taken additional evidence,
this Court's scope of review is limited to determining
whether the zoning hearing board committed an error of law or
abused its discretion. Larsen v. Zoning Board of
Adjustment of the City of Pittsburgh, 672 A.2d 286,
288-89 (Pa. 1996); Nowicki v. Zoning Hearing
Board of Borough of Monaca, 91 A.3d 287, 291 n.1 (Pa.
Cmwlth. 2014). When construing local zoning ordinances,
courts are guided by the principles of the Statutory
Construction Act of 1972, 1 Pa. C.S. §§ 1501-1991,
which provides that "[w]ords and phrases shall be
construed according to rules of grammar and according to
their common and approved usage." Patricca v. Zoning
Board of Adjustment of the City of Pittsburgh, 590 A.2d
744, 747-48 (Pa. 1991) (citing 1 Pa. C.S. § 1903(a)).
The
traditional rule of deference to zoning hearing board
interpretations of their ordinances, however, is balanced by
the principle that any ambiguity and conflict in the language
of the ordinance must be resolved in favor of the landowner
and the least restrictive use of the land. Latimore
Township v. Latimore Township Zoning Hearing Board, 58
A.3d 883, 888 (Pa. Cmwlth. 2013); see also Section
603.1 of the Municipalities Planning Code, Act of July 31,
1968, P.L. 805, added by the Act of Dec. 21, 1988, P.L. 1329,
53 P.S. § 10603.1 ("In interpreting the language of
zoning ordinances to determine the extent of the restriction
upon the use of the property, the language shall be
interpreted, where doubt exists as to the intended meaning of
the language written and enacted by the governing body, in
favor of the property owner and against any implied extension
of the restriction."). Moreover, "[w]hile the
legislative intent of the governing body which enacted the
ordinance is of primary concern when interpreting a zoning
ordinance, the letter of the ordinance is not to be
disregarded under the pretext of pursuing its spirit."
Borough of Fleetwood v. Zoning Hearing Board of the
Borough of Fleetwood, 649 A.2d 651, 656 (Pa. 1994);
see also Riverfront Development Group, LLC v. City of
Harrisburg Zoning Hearing Board, 109 A.3d 358, 366 (Pa.
Cmwlth. 2015). This Court has held that it is an abuse of
discretion for a zoning hearing board to narrow the terms of
an ordinance and further restrict the use of a property.
Riverfront Development Group, 109 A.3d at 366;
Church of the Saviour v. Tredyffrin Township Zoning
Hearing Board, 568 A.2d 1336, 1338 (Pa. Cmwlth. 1989).
The
Reihners argue that the Board and the Court of Common Pleas
determined that the Reihners operate a B&B simply based
on the name of the Airbnb website.[2] The Reihners argue that the
lower tribunals ignored the language in the definition that
the establishment "does not provide any cooking
facilities or provision of meals for guests other than
breakfast." (Ordinance ยง 202, R.R. 201a.) The
Reihners contend that the holding by the Court of Common
Pleas that the Ordinance does not require that breakfast be
served to fall under the "Bed and Breakfast Use"
definition ignores the conjunctive "and" in
"Bed and Breakfast Use" which signifies that the
two nouns "bed" and "breakfast" must both
be present in order for an establishment to be considered a
B&B. The Reihners assert that their guests had access to
their kitchen to prepare any meal or snack at any time of day
and that the Reihners did not prepare breakfast, or any other
meal, for their guests. Because they did not serve breakfast
and instead ...