Irina SHVEKH, Appellant v. The ZONING HEARING BOARD OF STROUD TOWNSHIP and Township of Stroud
No. 929 C.D. 2016
Commonwealth Court of Pennsylvania.
Decided: February 6, 2017
154 A.3d 408
Argued: December 15, 2016
In this case, there is no question that such communication was made. The difference of opinion seems to rest on which side next has the greater responsibility. The Majority suggests that Claimant, in this case, was provided a large list of potential jobs—132 in number, with Employer ultimately narrowing this to two—and asked to contact human resources. For her part, Claimant specifically applied for a different position not identified on this list, which cannot be seen as anything other than a clear indication of her “good faith effort to maintain the employment relationship...” Genetin, 451 A.2d at 1356. However, because Claimant never contacted human resources nor applied for one of the myriad of jobs (or the sub-species of two) which Employer had presented, the Majority suggests Claimant failed to fulfill her obligation under the Law and is thus precluded from receiving benefits.
What is more important under the Genetin rationale, however, is what steps Employer did (or did not) take. As Claimant clearly indicated her desire to “maintain the employment relationship ... it was then incumbent upon the [E]mployer to provide suitable work.” Id. at 1356 (emphasis added). No such action was taken by Employer, nor can the presentation of a list of 132 jobs, or the singling out of one, two, or ten possible jobs, satisfy the mandate required by Genetin. There is nothing subtle about the Supreme Court‘s command that an employer in a case such as this must “provide” work appropriate to the employee and her particular situation. Whether this is to be couched in the term “firm offer” or some other language, there can be little doubt that the steps taken by Employer in this case do not satisfy Genetin. As the Board below got it right, I am compelled to dissent.
President Judge Leavitt and Judge Wojcik join in this dissent.
Robert J. Kidwell, III, Stroudsburg, for appellant.
Jeffrey A. Durney, Tannersville, for appellee The Zoning Hearing Board of Stroud Township.
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JULIA K. HEARTHWAY, Judge
Irina 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.1 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.
Shvekh 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.
The 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.
The 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.
Svetlana 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 time.
Mrs. 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.
Mrs. Conques testified that she and her family occupy the Property approximately
The 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.
On 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.
The 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.
To reach its conclusion, the Zoning Board relied on our Supreme Court‘s decision in Albert v. Zoning Hearing Board of North Abington Township, 578 Pa. 439, 854 A.2d 401, 410 (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.
Shvekh appealed to the trial court, and it affirmed the Zoning Board‘s decision without taking additional evidence. Shvekh now appeals to this Court.3
On 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 seriatim.
In her 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
A 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 ordinances, this Court “relies upon the common usage of the words and phrases contained therein and will construe that language in a sensible manner.” Id.
With these principles in mind, we turn to the relevant provisions of the Zoning Ordinance. Section 2.266 of the Zoning Ordinance defines “dwelling” as:
Any building or portion thereof, designed or used exclusively as the residence for one or more persons. The term “dwelling” shall not be deemed to include motel, rooming house, boarding house, tourist home, dormitory, fraternity, sorority house or other group residence, camps and campgrounds as defined herein.
Any individual, or two (2) or more persons related by blood, marriage, legal adoption, foster placement, or a group of not more than three (3) persons who need not be related by blood or marriage, living together in a dwelling unit. A “family” shall not be deemed to include the occupants of a boarding house, rooming or lodging house, club, fraternity/sorority or hotel.
Section 2.414 of the Zoning Ordinance defines a “tourist home” as “[a] dwelling in which at least one but no more than six rooms are offered for overnight accommodations for transient guests for compensation.”
The Zoning Board concluded that the Property was being used as a tourist home because the lease agreement does not limit the renters to a single family or a group of no more than three unrelated persons. In concluding that the vacation rentals of the Property made it the functional equivalent of a hotel or tourist home, the Zoning Board relied upon Albert, 854 A.2d 401.
The Supreme Court found that “inherent in the concept of ‘family’ and, in turn, in the concept of a ‘single-family dwelling,’ is a certain expectation of relative stability and permanence in the composition of the familial unit.” Albert, 854 A.2d at 409. One of the benefits of single-family zoning districts, the Court found, was that
they create residential neighborhoods in which the residents may develop a sense of community and a shared commitment to the common good of that community. Without some level of stability and permanence in the composition of the groups residing in such residential districts, this goal is necessarily subverted.
Id. The Supreme Court concluded that the residents at the proposed halfway house were “purely transient” and did not constitute a “family” under the zoning ordinance. Not only did the identity of residents “change on a fairly regular basis,” the entire population of the halfway house would turn over two to six times a year. Id. at 410-11.
Albert is distinguishable. It concerned a halfway house used in a “purely transient” way. The owners did not rent the entire house to one group for a vacation purpose but, rather, bedrooms to different individuals.4 Albert is also distinguishable because the halfway house required a license. Here, by contrast, the Zoning Board did not suggest that using a single-family dwelling for short-term vacation rentals requires a license of any type. Further, the Property is not used in a “purely transient” way because it is occupied at least once a month by the owners and their families.
Shvekh argues that this Court‘s decision in Marchenko v. Zoning Hearing Board of Pocono Township, 147 A.3d 947 (Pa. Cmwlth. 2016), should control the result of this case. In Marchenko, the owner used the property as her primary residence and resided at the property a majority of the time. She rented out the property on weekends by listing it on the Internet. We concluded that “the composition of the family living at the Property is not purely transient, and the Property is primarily used as a single-family dwelling by Marchenko.” Id. at 950.
In the instant case, Shvekh does not use the Property as her primary residence and neither does her son-in-law. Although that was an important fact in Marchenko, it was not the controlling factor. Shvekh and her daughter, as well as her son-in-law, reside at the Property at least every month. What was controlling in Marchenko was that the zoning ordinance did not prohibit the owner of a “single-family dwelling” from renting it out. Accordingly, we held that
[The Zoning Hearing Board] should have broadly interpreted the term “single-family dwelling” to allow this rental activity rather than straining to designate the activity as a prohibited lodge use, which the Ordinance does not define. Therefore, the ZHB erred in con-
cluding that Marchenko‘s short-term rentals of the Property are prohibited in the R-1 District.
A zoning hearing board‘s interpretation of its own zoning ordinance is entitled to deference. Smith v. Zoning Hearing Board of Huntingdon Borough, 734 A.2d 55, 57 (Pa. Cmwlth. 1999). However, this principle of deference is balanced by the principle that any doubt must be resolved in favor of the landowner and the least restrictive use of the land. Mt. Laurel Racing Association v. Zoning Hearing Board, Municipality of Monroeville, 73 Pa.Cmwlth. 531, 458 A.2d 1043, 1044-45 (1983). This latter principle is grounded in Section 603.1 of the Pennsylvania Municipalities Planning Code (MPC), which provides that
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.
Shvekh argues that the Zoning Board‘s interpretation of “tourist home” violated Section 603.1 of the MPC because it added an additional element—the frequency of the accommodation—to the definition, thereby expanding the restriction.6 The Zoning Ordinance defines a “tourist home” as follows:
A dwelling in which at least one but no more than six rooms are offered for overnight accommodation for transient guests for compensation.
The Zoning Ordinance defines a “single-family dwelling” as “a detached building designed for or occupied exclusively by one family.”
AirBnB has expanded the possible uses of a single-family dwelling, and the Township can address these new uses in the Zoning Ordinance. However, amendments cannot be effected by shoe-horning a use that involves renting an entire single-family home to vacationers into the definition of “tourist home.” The Property meets the definition of single-family residence because it has been “designed for or occupied exclusively for one family.”
In her second issue, Shvekh argues that the Zoning Ordinance is unconstitutionally vague because the definitions of “family” and “group (family type) dwelling occupancy” conflict. As noted above, a “family” is defined as:
Any individual, or two (2) or more persons related by blood, marriage, legal adoption, foster placement, or a group of not more than three (3) persons who need not be related by blood or marriage, living together in a dwelling unit. A “family” shall not be deemed to include the occupants of a boarding house, rooming or lodging house, club, fraternity/sorority or hotel.
[A] type of dwelling occupancy that could be located in any type of residential structure. This occupancy involves a group that lives together as a family with the group sharing costs and responsibilities for the dwelling wherein the group is not involved in some other land use activity such as rooming house or a club, or a fraternal organization, nor group care facility, nor group home, nor house of correction, nor halfway houses.
Shvekh Brief at 18.7
Shvekh argues that the definition of “family” restricts a group of unrelated individuals to no more than three, whereas the definition of “group (family type) dwelling occupancy” contains no such restriction on the number of unrelated individuals. We need not decide whether there is a conflict in the above definitions because the Board did not rely on the definition of “group (family type) dwelling occupancy” in reaching its decision. Further, the definition of “group (family type) dwelling occupancy” does not apply to Shvekh‘s use of the Property because the Board did not find that tenants share costs and responsibilities for the dwelling.
For all of the foregoing reasons, we reverse the trial court‘s decision.
ORDER
AND NOW, this 6th day of February, 2017, the order of the Court of Common Pleas of Monroe County dated April 15, 2016, in the above-captioned matter is hereby REVERSED.
Notes
The purpose of the Special and Recreational District is to preserve open space, agriculture, steep slopes, wetlands, scenic viewpoints and other unique and aesthetic environmental features. To provide for the continuation and protection of large lot residential development and rural residential character with on-lot water and sewage facilities. Outdoor recreational facilities and uses would be compatible with the character of this District.
ZONING ORDINANCE, Article III, § 3.222; Reproduced Record at 230a (R.R.). The Ordinance Use Schedule further provides that single-family dwellings and single-family clusterings are permitted within the S-1 District; hotels, motels, resorts and other lodging services are not permitted. ZONING ORDINANCE, Use Schedule; R.R. 228a-229a.