Reihner v. 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 § 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 ...