PENNSYLVANIA SUPREME COURT UPHOLDS DECISION DENIAL OF AIRBNB RENTALS IN RESIDENTIAL ZONING DISTRICT
On April 26, 2019, in a case known as Slice of Life v. Hamilton Township Zoning Hearing Board, the Supreme Court of Pennsylvania held that purely transient, AirBnB type, rentals are not permitted in a residential zoning district. Interpreting a zoning ordinance which defines “family” as a “single housekeeping unit”, the Court upheld the decision of the Hamilton Township Zoning Hearing Board, which disallowed transient, rentals in its single-family home zoning district. Slice of Life not only addresses the issue of short term rentals in residential zoning districts, it more liberally construes the manner in which zoning ordinances must be interpreted.
The premises subject of this case are located in a single-family residential district in the Poconos. The owner acknowledged being in the tourism business and that the house was occupied solely for short term, vacation-type rentals. Hamilton Township took the position that such use and occupancy constituted “hotel and/or other types of transient lodging, Rental of Single Family Residential Dwelling for transient tenancies”, a use which is not permitted in the applicable zoning district. After the Hamilton Township Zoning Hearing Board denied the owner’s appeal of an enforcement notice, the case proceeded to the Monroe Court of Common Pleas. The Court of Common Pleas affirmed the Zoning Hearing Board’s decision – resulting in an appeal to the Commonwealth Court.
The Commonwealth Court disagreed with the lower court (and the Zoning Hearing Board), holding that the ordinance’s definition of “family” could indeed include the “individual who signed the [temporary AirBnB] lease”, and that the “remaining people occupying the property were mere guests”. The Commonwealth Court also found:
…that because the phrases “transient lodging” and “transient tenancies” were neither used nor defined in the Ordinance, the Board could not modify the Ordinance to find that such uses were prohibited in the zoning district at issue. [T]he Board was required to apply the terms of the Ordinance as written, rather than deviating from those terms based on unexpressed policies of the Township regarding permitted uses. The Board’s function is only to enforce the zoning ordinance in accordance with the law.
Despite a sale of the premises rendering the controversy potentially moot, the Supreme Court agreed to hear the appeal and to render a decision. In support of its decision to hear the controversy, it wrote as follows:
The prevalence of short-term rentals in Pennsylvania (and throughout the country) has grown over the last several years, requiring cities, townships and boroughs to make case-by-case determinations as to whether and where such rentals should be permitted. See Thomas Marcey, How Airbnb and its Online Kin Have Changed the Laws of Short-Term Renting – One State’s Experience, 2018-7 Construction Briefings NL 1 (July 2018); Katherine A. Janocsko, Short-Term Rental, Long-Term Impact, 20 No. 11 Lawyers J. 14 (2018). Further, given the significant amount of time that typically passes between a decision by a zoning hearing board and an appeal taken to this Court, the circumstances of this case are easily repeated, i.e., the property owner divests its interest therein following a decision in the property owner’s favor. As the circumstances of this case are capable of repetition (by Appellees and others) but could easily evade review in this same manner, we will proceed to address the merits of the claim raised.
As it applies to the property in question, Hamilton Township’s zoning ordinance permits single-family detached dwellings. The ordinance defines “family” as “[o]ne or more persons, 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”. Not defined in the ordinance, the Supreme Court adopted the common definition of “single housekeeping unit”; “requiring the person or persons residing in the home to function as a family and to be “sufficiently stable and permanent” and not “purely transient.” It thus held that “by defining “family” by requiring “a single housekeeping unit,” the ordinance clearly and unambiguously excluded, in pertinent part, purely transient uses of property” in the zoning district. In support of its finding that Slice of Life’s use was indeed purely transient (and thus prohibited), the Court wrote as follows:
As a California appellate court observed, short-term rentals of homes located in a single-family residential zoning district “undoubtedly affect the essential character of a neighborhood and the stability of a community.”… Short-term tenants have little interest in public agencies or in the welfare of the citizenry. They do not participate in local government, coach little league, or join the hospital guild. They do not lead a Scout troop, volunteer at the library, or keep an eye on an elderly neighbor. Literally, they are here today and gone tomorrow—without engaging in the sort of activities that weld and strengthen a community. …The permanence and stability of people living in single-family residential zoning districts creates a sense of community, cultivates and fosters relationships, and provides an overall quality of a place where people are invested and engaged in their neighborhood and care about each other. This is a place where children can play together, neighbors can know each other and look out for one another, and people can enjoy the “quiet seclusion” of their homes. (citations omitted)
In so holding, the Supreme Court expressly overruled two prior Commonwealth Court cases, writing that “the requirement … that any use not specifically prohibited will be deemed permitted is … contrary to … precedent”:
This excluded-unless-expressly-included standard, combined with Miller’s “functional analysis”, is the only workable standard. A single-family home (or other structure) can be used in as many ways as the imagination allows – for example, as a restaurant, a bakery, a bed and breakfast, a school, a store, a veterinary hospital, a halfway house or a pigeon sanctuary. The rule announced by the Commonwealth Court is impossible for drafters of zoning ordinances to execute. Therefore, we overrule these decisions on that basis.
Moreover, requiring that zoning ordinances state every conceivable impermissible use would negate the deference to which a zoning hearing board is entitled in the interpretation of its municipality’s zoning ordinances. … If the Commonwealth Court were correct, and unlisted uses are necessarily permitted in a given zoning district, there would be nothing for the zoning hearing board to interpret. (citations omitted)
Ultimately, the Supreme Court reversed the Commonwealth Court, deciding that Slice of Life’s use of the premises was purely transient, and that such use is not a single-family use by a single housekeeping Unit.
Slice of Life not only addresses short-term, transient rentals in residential zoning districts, it seeks to clarify the standard applicable to interpretation of zoning ordinances. “Strict interpretation does not mean … ignor[ing] uses that clearly fall outside those that are permitted in the ordinance.” In other words, a use may be prohibited even if not expressly addressed in the ordinance. This standard certainly relaxes the strictness by which previous decisions interpreted zoning ordinances, encompassing in this case, unanticipated uses.
Many associations wrestle with short term rentals. While minimum lease periods and prohibitions against transiency or hotel rentals are common, most condominium and community association documents also contain among their use restrictions, reference to single-family uses and zoning ordinances. AirBnB type rentals may thus already be prohibited – as stated in Slice of Life – the prohibition does not have to be expressly written to apply. Associations concerned with this issue should thus undertake a review of their use restrictions and evaluate adopting regulations to govern short term rentals. The Supreme Court’s analysis and discussion in Slice of Life not only eloquently describes the issue, it provides a basis and rationale to support the implementation of such restrictions: Literally, they are here today and gone tomorrow—without engaging in the sort of activities that weld and strengthen a community. …