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HomeMy WebLinkAbout2017-544JOHN P. HOEFLING and SUSAN E. HOEFLING, Appellants V. ZONING HEARING BOARD OF MONROE TOWNSHIP, Appellee and MONROE TOWNSHIP, Intervenor IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION (LAND USE APPEAL) : NO. 2017-00544 CIVIL TERM IN RE: APPEAL FROM ZONING HEARING BOARD DECISION BEFORE OLER, S.J. ORDER OF COURT AND NOW, this 12th day of September, 2017, upon consideration of Appellants' appeal from the decision of the Monroe Township Zoning Hearing Board affirming an enforcement order of the Township's zoning officer dated October 25, 2016, following oral argument held on June 30, 2017, and for the reasons stated in the accompanying opinion, the decision of the Board is affirmed. BY THE COURT Q e,, 1/,Vesley OU, Jr., S.J. David J. Lenox, Esq. Suite 3 8 Tristan Drive Dillsburg, PA 17019 Attorney for Appellants Philip J. Murren, Esq. Ball, Murren & Connell 2303 Market Street Camp Hill, PA 17011 Attorney for Appellee Michael J. Pykosh, Esq. Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, PA 17011 Attorney for Intervenor JOHN P. HOEFLING and SUSAN E. HOEFLING, Appellants V. ZONING HEARING BOARD OF MONROE TOWNSHIP, Appellee and MONROE TOWNSHIP, Intervenor : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION (LAND USE APPEAL) NO. 2017-00544 CIVIL TERM IN RE: APPEAL FROM ZONING HEARING BOARD DECISION BEFORE OLER, S.J. OPINION and ORDER OF COURT OLER, S.J., September 12, 2017. In this difficult land use case, Appellant landowners have appealed from a denial by Appellee Zoning Hearing Board of Monroe Township (Board) of their appeal from a cease and desist order respecting the use of their property.' Intervenor Monroe Township (Township) has intervened2 in support of the decision of the Board.3 No evidence in addition to that received by the Board was taken by the court .4 Oral argument on the matter was held on June 30, 2017. For the reasons stated in this opinion, the decision of the Board will be affirmed. 'Notice of Land Use Appeal, filed January 27, 2017. 2 Notice of Intervention of Monroe Township, filed February 7, 2017. 3 See Brief for Intervenor Monroe Township, submitted June 23, 2017. ¢ The record was supplemented, however, by a full copy of the pertinent township zoning ordinance. See Order of Court, dated June 30, 2017; cf Zitelli v_ Zoning Hearing Board, 850 A.2d 769, 771 n.2 (Pa. Cmwlth. 2004) (authorization for judicial notice of zoning ordinance in land use appeal without need for de novo decision); 42 Pa. C.S. §6107. -1- STATEMENT OF FACTS Appellants, John P. Hoefling and Susan E. Hoefling, own a residential lot located at 1453 Cockley's Meadow Drive, Boiling Springs, Monroe Township, Cumberland County, Pennsylvania (Property).5 The Property lies within a Suburban Residential (R-1) district under the Township's zoning ordinance.6 The principal residence of Appellants is in Falls Church, Virginia,' but one or both of them stay at the Property on some weekends and holidays each year and they anticipate retiring there.9 In 2007 or 2008, shortly after purchasing the Property,i° Appellants began to rent it out on a short-term basis for overnight accommodations." The length of the average stay of guests at the Property has been between five and seven days. 12 During 2016, the Property was rented for short-term periods for a total of 110 days,13 representing about 20 separate rentals, 14 and one or both Appellants stayed at the Property one or two weekends a month." The Property is advertised on at least two vacation rental websites, with the following being representative: ' Certified Record (Bates Stamped) at pages 0039-40 (Hereinafter Certified Record �. 6 Certified Record 0075. The Property is located a short distance from the home of the parents of Appellant John P. Hoefling. Certified Record 0090. ' Certified Record 0041-42. 'Certified Record 0091. 9 Certified Record 0091. Joseph P. Hoefling is employed by a defense security agency, which is primarily responsible for military sales. He works with the Department of Defense, is frequently posted outside the United States, and accordingly does not "get a chance to come up here [to the Property] often.." One such foreign posting lasted for 14 months. Certified Record 0112. 10 Certified Record 0040. " Certified Record 0049, 0094. 12 Certified Record 0050-51. 13 Certified Record 0096. 14 Certified Record 0051, 0096. "Certified Recod 0091. -2- HomeAway Website Ad Details Property People Bedrooms Bathrooms Minimum Stay House 10 3 2 2 Nights Description Photos and Description of this 3 bedroom holiday home in Boiling Springs — Water -Front Cottage House, 3 Bedrooms i- Convertible bed(s), 2 Baths, (Sleeps 8) Located in the quaint little town of Boiling Springs, Pennsylvania, the Creek Cottage is a dream vacation home. Only a two hour drive outside of the District of Columbia, this picturesque water -front home resides in one of America's oldest towns, which in 1984 was listed in the National Register of Historic Places. Enjoy tranquil fishing and boating in the summer, hiking all year round, and nearby ski-ing and tubing in the winter. Check our calendar, or call for last minute cancellations. In the winter, one can choose to go skiing or tubing for the day or even just the afternoon, at Ski Roundtop, only a half an hours drive from home. Right off the backyard of the Creek Cottage, runs the Yellow Breeches Creek, consistently stocked with trout, this creek has recently gained a national reputation to being home to some of the best fly fishing in America. It is also less than an hour away from outlet mall shopping... _ The creek cottage has three bedrooms, two bathrooms, and a large great room consisting of an open kitchen, an entertainment center and a dining area. The master bedroom has a King sized bed and en -suite bathroom with a Jacuzzi tub. The other downstairs bedroom has 2 single beds. The upper floor has a bedroom, with two twin beds and an adjoining sitting room, with a queen sized pull down futon. Ideal for a family, short or long term rental, or home leave in the USA. It is also close to Dickinson College — ideal for home- coming weekends, college visits, or graduation weekend. Call us directly for long-term rental, military specials, home leave stay, weekend specials and holiday specials. 16 Appellants provide services to renters in the form of supplying towels and linens and providing post -vacation cleaning, for which they charge $130.00;17 they employ a local person to assist in the provision of these services. 18 Appellants have also established 16 Certified Record 0180, 0183; see also Certified Record 0173-80 (vacationhomerentals.com ad). 17 Certified Record 0087-88, 0102-03. 1s Certified Record 0104-06. -3- a commercial entity, Beltway Getaway, LLC, to facilitate their payment of Pennsylvania taxes on revenues generated by the Property. 19 At its hearing on Appellant's appeal from the cease and desist order, the Board heard evidence that more than thirty vehicles had been observed in the vicinity of the Property at one time,20 and that as many as nine vehicles were seen to remain overnight.21 A neighbor testified that on a certain occasion an out-of-state renter built a bonfire on the Property at night that reached a height of ten feet and sent smoke into his windows, that his request to the man, who was drunk,22 to reduce the size of the fire was met with an "obnoxious" response, 23 and that he refrained from calling the police on such occasions because he "didn't want any more animosity."24 At another time, according to his testimony, he was attacked on his back porch by two great mastiffs owned by a short- term25 renter, 26 that he defended himself from them by throwing a firecracker '27 and that as a result the police were called on him;28 he testified that his attempt to complain to one of the owners about this situation resulted in his being hung up on. 29 Invasions of his privacy by renters of the Property were described by this neighbor as follows: ... I've had them come in my garage. 10:30 at night just walk right into my garage, scare the heck out of me. I mean right into my house. I've had them knock on my door at 10:30 [at] night. This woman here, Billy McCurdy, has the key to [the owners'] residence and she ended up leaving them in because they come and knock on my door, can you help me t9 Certified Record 0059. 20 Certified Record 0064, 0070. 21 Certified Record 0070. 22 Certified Record 0062-63. 21 Certified Record 0063. 24 Certified Record 0069. 25 Certified Record 0095. 26 Certified Record 0069-70. 27 Certified Record 0129. 28 Certified Record 0129. 29 Certified Record 0062. -4- with this, all night, off and on, hiding lights, turning around, coming at all hours to, you know, walk around the property, looking in the windows, because they're not sure of the address. ...30 The Monroe Township Zoning Ordinance provides that "Single Family Detached Dwellings" are permitted in an R-1 zoning district, 31 and a dwelling is defined as "f a]ny building or portion thereof designed and used exclusively for residential occupancy, ... but not including hospitals, hotels, boarding, rooming and lodging houses, institutional houses, tourist courts, and the like, offering overnight accommodations for guests or patients."32 A "single family detached" dwelling is a specific type of dwelling distinguished by its manner of construction and yard space.33 Under the ordinance, a "family" is defined as "[a]n individual or individuals related by blood, marriage, or adoption (including persons receiving foster care) that maintain one common household and live within one dwelling unit. Additionally, up to six (6) individuals who maintain a common household and live within one dwelling unit may be considered a family.',34 A "boarding house" is defined as "[a] detached building arranged or used for the temporary sheltering, or sheltering and feeding, for more than five (5) and not more than ten (10) individuals that do not constitute a family, for periods not exceeding 30 days."35 A "hotel" is defined as [a] facility which provides lodging to boarders for compensation, which contains more than eight (8) rooms with less than twenty-five percent (25%) of all rooms having direct access to the outside without the necessity of passing through the main lobby of the building, and which may provide meals and other services as a part of the compensation.36 31 Certified Record 0063. 31 Monroe Township Zoning Ordinance §202. 32 Monroe Township Zoning Ordinance § 112(c). 33 Monroe Township Zoning Ordinance § 112(c). 34 Monroe Township Zoning Ordinance § 112(c). 35 Monroe Township Zoning Ordinance § 112(c). sb Monroe Township Zoning Ordinance § 112(c). -5- The terms "lodging house," "rooming house," "institutional house," and "tourist court" are not specifically defined by the ordinance. According to the ordinance, words not specifically defined therein are to be "defined by definitions presented in an unabridged dictionary of the English language."37 Finally, at the Board's hearing on the matter, evidence was received to the effect that the intent of the drafters of the ordinance was, subject to grandfathering rights for existing bed and breakfasts, to preclude temporary housing in the form of short-term rentals in the interest of promoting a stable community.38 On October 25, 2016, the Township's zoning officer mailed a cease and desist order to Appellants at their residence in Falls Church, Virginia, with respect to their use of the Property .39The order, noting that the Property was being offered for overnight accommodations of guests, directed Appellants to discontinue the activity on the ground that it constituted a prohibited use of the dwelling unit as a lodging house .40 From this enforcement order, Appellants filed an appeal to the Monroe Township Zoning Hearing Board .41 The Board held a hearing on the matter, referenced variously above, on December 15, 2016.42 At the conclusion of the hearing, and following deliberations, the Board voted to deny the appeal .43 The Board's written decision, pursuant to the Municipalities Planning Code,44 was issued on December 28, 2016.4 The decision, inter alis, noted the following definitions 37 Monroe Township Zoning Ordinance § 112(a). 3s Certified Record 0120-21. 39 Certified Record 0027. " Certified Record 0027, 0072-73. 41 Certified Record 0021-22, 0033-34, 42 Certified Record 0010 (Monroe Township Zoning Hearing Board Decision, dated December 28, 2016, at 2). 43 Certified Record 0020 (Monroe Township Zoning Hearing Board Decision, dated December 28, 2016, at 11). 44 See 53 P. S. § 10908(9). -6- in Webster's New Collegiate Dictionary (1980) and Black's Law Dictionary (Revised 4t' Edition) respectively: Lodging house n: a house where lodgings are provided and let. Lodging n: 1 a: a place to live: DWELLING b: LODGEMENT 3b 2 a (1): sleeping accommodations <found — [lodging] in the barn> (2): a temporary place to stay <a — [lodging] for the night> b: a room in the house of another used as a place of residence — usu. Used in pl. 3: the act of lodging Lodging House. A house where lodgings are let; Douses containing furnished apartments which are let out by the week or by the month, without meals or with breakfast simply. [Citation omitted.] Lodging Place. A place of rest for a night or a residence for a time; a temporary habitation. [Citation omitted.] Lodgings. Habitation in another's house, furnished or unfurnished, occupied for habitation; the occupier being termed a lodger.46 From the Board's denial of their appeal, Appellants have filed an appeal to this court.41 STATEMENT OF LAW In an appeal from a zoning hearing board's decision with respect to the propriety of a zoning officer's enforcement order, where the court does not take additional evidence, the scope of review by the court is limited to determining whether the board committed an error of law or a manifest abuse of discretion. Appeal of Summers, 122 Pa. Commw. 42, 551 A.2d 1134 (1988). The court "may conclude that the [b]oard abused its discretion only if its findings are not supported by substantial evidence.... By `substantial evidence' we mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Valley View Civic Assn v. Zoning Board of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983) (citations omitted). 41 Certified Record 0020 (Monroe Township Zoning Hearing Board Decision, dated December 28, 2016, at 11). 46 Certified Record 0016-17. 4' Notice of Land Use Appeal, filed January 27, 2017. -7- "In construing local zoning ordinances, courts apply the principles of the Statutory Construction Act of 1972, 1 Pa. C.S. §§ 1501-1991.... Accordingly, courts shall construe the words and phrases of a local zoning ordinance `according to rules of grammar and according to their common and approved usage."' Marchenko v. Zoning Hearing Board of Pocono Township, 147 A.2d 947, 951 (Pa. Cmwlth. 2016). "Under the doctrine of noscitur a sociis the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it." Ford Motor Co. v. Unemployment Compensation Board of Review, 168 Pa. Super. 446, 450, 79 A.2d 121, 123 (1951). It must also be remembered that "[t]he purpose of all interpretation is to ascertain the legislative intent ...." .Labell v. Norristown Borough, 12 Pa. D. & C.2d 120, 121 (Montgomery Co. 1957) (citation omitted). Additional rules pertaining to the interpretation of zoning ordinances have been stated as follows: A zoning hearing board's interpretation of its own zoning ordinance is entitled to deference.... 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.... This latter principle is grounded in Section 603.1 of the Pennsylvania Municipalities Planning code .... Shvekh v. Zoning Hearing Board of Stroud Township, 154 A.3d 408, 414 (Pa. Cmwlth. 2017) (citations omitted). Three appellate cases in Pennsylvania, cited by both sides, appear to be of particular relevance to an analysis of the case sub judice. In Albert v. Zoning Hearing Board of North Abington Township, 578 Pa. 439, 854 A.2d 401 (2004), the Pennsylvania Supreme Court held that a halfway house for six to 15 female drug addicts in recovery, with an average stay of two to six months, did not qualify as a "single-family detached dwelling," where the pertinent zoning ordinance defined that term as "a detached building, designated for or occupied exclusively by one family and containing not more than one dwelling unit," but did not define the word "family." Noting that whether the halfway house qualified as a single-family detached dwelling thus depended upon the meaning of "family," and acknowledging that Pennsylvania case law had evolved a somewhat expansive definition of "family" pursuant to a functional equivalency test in the absence of a supplied definition, the Court nevertheless concluded that the unstable composition of the proposed halfway household, arising out of the transience of individual members, deprived it of the nature of a family. In so holding, the Court observed that "one of the many benefits of single-family zoning districts is 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. at 453, 854 A.2d at 409. In Marchenko v. Zoning Hearing Board of Pocono Township, 147 A.3d 947 (Pa. Cmwlth. 2016), the Pennsylvania Commonwealth Court held that an owner's residence that was rented out to indoor vacationers 3 8% of the time in the owner's absence "to help defray her housing expenses" qualified as a "single family dwelling" and was not a "lodge," where (a) the applicable zoning ordinance defined "single family dwelling" as "[a] detached building designed for and occupied exclusively by one family," excluded from the zoning district "[t]ransient dwelling accommodations" such as "hotels, motels, resorts and lodges," and did not define "family" or "lodges," and (b) the dictionary definition of a "lodge" associated it with "outdoor activities. 4' In so holding, the Court noted that the ordinance did not circumscribe the definition of a "single family dwelling" by limiting occupancy to non -successive families,49 and that short-term rentals of the property at issue were not the basic purpose of its use. 50 In Shvekh v. Zoning Hearing Board of Stroud Township, 154 A.3d 408 (Pa. c Cmwlth. 2017), the Pennsylvania Commonwealth Court held that a house designed for 48 Marchenko V. Zoning Hearing Board of Pocono Township, 147 A.3d 947, 949-50, 952 n.l (Pa. Cmwlth. 2016). 49 Marchenko v. Zoning Hearing Board of Pocono Township, 147 A.3d 947,950 (Pa. Cmwlth. 2016). so Marchenko v. Zoning Hearing Board of Pocono Township, 147 A.3d 947,951 (Pa. Cmwlth. 2016). -9- one family, occupied once a month by an owner and rented out to vacationers 20 to 25 times a year, did not represent a prohibited use as a tourist home under a zoning ordinance that permitted "single-family dwellings" in the district, but excluded from this category "tourist homes," where a "dwelling" was defined in the ordinance as "[a]ny building or portion thereof, designed or used exclusively as the residence for one or more persons"51 and a "tourist home" was defined as "[a] dwelling in which at least one but no more than six rooms are offered for overnight accommodations for transient guests for compensation."52 In so holding, the Court noted (a) that by its disjunctive phraseology the definition of "dwelling" implicated either design or use of the structure, 53 (b) that the township's zoning officer conceded that the definition of a "tourist home" did not encompass rental of an entire building as opposed to individual rooms,54 and (c) that the ordinance did not circumscribe the definition of "single-family dwelling" by excluding from its scope short-term rentals.55 Application of Law to Facts In the case at hand, to borrow the words of a sister state's appellate court, "[t]he law itself is clear; but its application is not always easy." Hood v. New York & N.H.R. Co., 22 Conn. 1, 18, 1852 Conn. Lexis 1, 27 (1852). However, a number of factors militate in favor of a conclusion that the Monroe Township Zoning Hearing Board did not commit an error of law or manifest abuse of discretion in denying Appellant's appeal from the zoning officer's enforcement order. First, unlike ordinances that are silent as to the duration of purportedly impermissible rentals, the Monroe Township Zoning Ordinance, by its use of terms such as "guests" and "overnight accommodations" to qualify the types of occupancies 51 Shvekh v Zoning Hearing Board of Pocono Township, 154 A.3d 408, 412 (Pa. Cmwlth. 2017) (emphasis added). 52 Shvekh v. Zoning Hearing Board of Pocono Township, 154 Aad 408, 412 (Pa. Cmwlth. 2017). 53 Shvekh v. Zoning .Hearing Board of Pocono Township, 154 A.3d 408, 414-15 (Pa. Cmwlth. 2017). " Shvekh v. Zoning Hearing Board of Pocono Township, 154 A.3d 408, 414 (Pa. Cmwlth. 2017). 55 Shvekh v. Zoning Hearing Board of Pocono Township, 154 A.3d 408, 414-15 (Pa. Cmwlth. 2017). -10- proscribed, suggests that the intended reference is to short-term habitations, in contradistinction to long-term residencies. Second, the basic purpose of the Property at issue is not as the owner's residence, as it was in Marchenko, but rather as a short-term rental commercial enterprise, with an associated business entity, employee, and supplemental services. Third, substantial support exists in the record for the proposition that the use of the Property for short-term rentals has been incompatible with the benefits of a single-family zoning district described by the Pennsylvania Supreme Court in Albert and said to have been intended by the drafters of the ordinance. In addition, the use of the Property in this case includes outside activities, associated in Marchenko with a "lodge." Further, the Monroe Township zoning officer did not, as was the case in Shvekh, concede that the property at issue did not meet the definition of the prohibited use alleged. And, finally, by its use of the words "and the like" following an enumeration of prohibited uses, the Monroe Township Zoning ordinance signaled an intent that the list of proscribed facilities was illustrative rather than exhaustive. Commonalities of the enumerated facilities include occupant transience and remuneration. Although any one of these factors would probably not be dispositive of the issue in this case, and without suggesting that the matter is without difficulty, as evidenced by excellent briefs by counsel for both sides, the court is of the view that in combination they warrant a conclusion that the Board did not commit an error of law or manifest abuse of discretion in interpreting the zoning ordinance. Accordingly, the following order will be entered: ORDER OF COURT AND NOW, this 12th day of September, 2017, upon consideration of Appellants' appeal from the decision of the Monroe Township Zoning Hearing Board affirming an enforcement order of the Township's zoning officer dated October 25, 2016, following oral argument held on June 30, 2017, and for the reasons stated in the accompanying opinion, the decision of the Board is affirmed. -11- David J. Lenox, Esq. Suite 3 8 Tristan Drive Dillsburg, PA 17019 Attorney for Appellants Philip J. Murren, Esq. Ball, Murren & Connell 2303 Market Street Camp Hill, PA 17011 Attorney for Appellee Michael J. Pykosh, Esq. Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, PA 17011 Attorney for Intervenor -12- BY T11E COURT wt-, Wesley r; Jr., S.J.