HomeMy WebLinkAbout2020-05509 (2)
ALESE WOODITCH, : IN THE COURT OF COMMON PLEAS OF
Appellant : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. :
: CIVIL ACTION (LAND USE APPEAL)
LEMOYNE BOROUGH :
ZONING HEARING BOARD, :
Appellee :
:
v. :
:
JOHN M. KOSTECKY, JR., :
Intervenor : NO. 2020-05509 CIVIL TERM
IN RE: APPEAL FROM ZONING HEARING BOARD DECISION
BEFORE HYAMS, J.
OPINION and ORDER OF COURT
HYAMS, J., March 18, 2021.
1
In this land use case, a homeowner has appealed
23
decision denying her request to use her residence for short-term rentals. No evidence in
addition to that received by the board was taken by the court, and the matter was argued
on February 11, 2020.
For the reasons stated in this opinion, the case will be remanded to the zoning
hearing board.
1
Land Use Appeal of Alese Wooditch from a Decision of the Zoning Hearing Board of Lemoyne
Borough, filed September 25, 2020.
2
Decision Denying Variance, dated August 28, 2020 (attached as Exhibit A to Land Use Appeal of Alese
Wooditch from a Decision of the Zoning Hearing Board of Lemoyne Borough, filed September 25, 2020)
(hereinafter Zoning Hearing Board Decision).
3
Zoning Hearing Application, dated June 5, 2020, Supplemental Certified Record, filed October 9, 2020
(hereinafter Zoning Hearing Application); Lemoyne Borough Zoning Hearing Application Supplement,
undated, Supplemental Certified Record, filed October 9, 2020 (hereinafter Supplemental Zoning Hearing
Application).
1
STATEMENT OF FACTS
Appellant is Professor Alese Wooditch, owner of her residence on Cumberland
4
Road in the Borough of Lemoyne, Cumberland County, Pennsylvania. Appellee Zoning
Hearing Board of the Borough of Lemoyne is the zoning hearing board for the
municipality in which Appellantrvenor John M. Kostecky, Jr.,
5
is the owner of a residential property adjacent to that of Appellant.
It appears that sometime prior to March 4, 2020, Appellant submitted to the
6
In response to a request from the municipality
pplication by an e-mail indicating, inter
alia, as follows:
1. Hours of operation and management plan (550-43) information request
emailed.
The referenced Zoning Ordinance section refers to commercial uses, and is not applicable
to short term rentals within a residential dwelling that is used as the Applicants primary
residence. To the extent that the requested information is relevant, and in an effort to
respond fully in good faith, the Applicant provides the following requested information:
B Short Term Rental of a room within the principal residence on the subject
property.
D The nature of short term rentals occurring on the subject property are
accommodations for overnight guests.
E The use is advertised primarily through AirBNB, although alternative marketing
and booking providers may be used.
F There are no employees associated with the proposed use. Up to four (4)
overnight guests are permitted.
H The current rate is $59.00 per night. Bookings vary from season to
season/year to year.
K Typically one (1) passenger vehicle parking on the street adjacent to the
4
N.T. 7-8, 30, Hearing of the Lemoyne Borough Zoning Hearing Board, August 4, 2020, Certified
Record, filed October 6, 2020 (hereinafter N.T. __, Zoning Hearing Board Hearing).
5
N.T. 47-48, 54, Zoning Hearing Board Hearing.
6
See
Supplemental Certified Record, filed October 9, 2020.
2
subject property a few times per week.
M NA. The disposal of waste on the subject property does not differ in
amount or type from any other residential use.
N The subject property is uniquely situated to accommodate occasional
overnight guests on a short term basis with no disruption to any residents
of the Borough. There are no known issues, impacts or problems.
Currently there are no residents residing on immediately adjacent
properties along Cumberland Road.
application is this addressed.
Applicant is requesting use of a portion of the residence on the subject property as a
7
a legal entity and brand, and not a use.
The e-mail supplementing the permit application also referred to a pending action
filed by the municipality against Appellant in the court of a magisterial district judge:
As we discussed on the phone, please confirm that Docket No. MJ-09102-NT-0000084-
2020 filed by you against the Applicant will be withdrawn or continued until a final
8
determination is made on the present Application.
A formal disposition of Appella
certified record.
On or about June 5, 2020, Appellant f
respect to her property, identifying the zoning district in which the property was situated
910
ordinance identifies the uses permitted in
11
residential zoning districts.
7
Supplemental Certified Record, filed October 9, 2020.
8
Supplemental Certified Record, filed October 9, 2020.
9
Zoning Hearing Application.
10
Zoning Hearing Application.
11
Borough of Lemoyne Zoning Ordinance, §550-12, Table 550-3-2 (hereinafter Zoning Ordinance, §__).
The zoning ordinance has not been included in the certified record filed with the court, and for purposes
of this opinion its contents have been retrieved from the internet.
3
The application was supplemented
Zoning Hearing Application S
Variance from Section 550-12 (Permitted Uses
SUMMARY OF PROPOSED USE:
Applicant is requesting use of a portion of the residence on the subject property as a short
term rental. The subject property is located \[on\] Cumberland Road and is in the Suburban
Residential zoning district.
* * * *
The rental area is approximately 700 square
ithin the structure used by Applicant as her
12
primary residence. . . .
RESERVATION OF RIGHTS AND STATUS OF LAW:
Appellant disputes the characterization of this
filing fee associated with her Application submittal. Under Pennsylvania law, dwelling
does not claim the rented property as a primary residence. In other words, a use is
residential if you live in your house and rent out rooms on occasion, but is considered
commercial if you are an absent owner renting rooms in an investment property (which is
the economic equivalent of a small hotel). This is an important legal distinction under
Pennsylvania law that is critical for determining whether or not a short term rental is
classified as a commercial or residential use. Since Applicant is renting a portion of her
primary dwelling, Applicant contends that the use is residential and permitted by right in
13
the Suburban Residential zoning district.
plication was held by Appellee zoning
14
hearing board on August 4, 2020. At the hearing, testimony was received from
151617
Appellant,
1819
Intervenor, and two members of the public. In addition, comments, pro and con, from
12
Supplemental Zoning Hearing Application.
13
Supplemental Zoning Hearing Application (emphasis added).
14
N.T. 1-81, Zoning Hearing Board Hearing.
15
N.T. 7-20, 25-43, 45-46, Zoning Hearing Board Hearing.
16
N.T. 24-25, 29, 31-32, Zoning Hearing Board Hearing.
17
N.T. 21-23, Zoning Hearing Board Hearing.
18
N.T. 47-55, Zoning Hearing Board Hearing.
19
N.T. 44-46, 56-60, Zoning Hearing Board Hearing.
4
20
members of the public were received,
zoning hearing application and supplement to the application, were incorporated into the
21
record.
plication was explained by her counsel at the
commencement of the hearing as follows:
The applicant has filed the present zoning application at the direction of the
zoning officer in order to resolve a civil action filed by the Borough against the applicant
in the local MDJ, the Magisterial District Justice Office, which is alleging coding
violations and that matter is currently continued pending the disposition of this zoning
matter this evening.
For this matter . . . the applicant is seeking zoning approval for the use of the
subject property, which is \[on\] Cumberland Road, as a short-term rental within the
suburban residential zoning district.
rentals are permitted by right in all residential zones pursuant to 550-12 of the Zoning
Ordinance as an accessory use subordinate to the principal use. The Borough Zoning
Ordinance is silent as to the permissibility of short-term rentals in particular and
ambiguities must be resolved in favor of the property owner.
Applicant is requesting the Zoning He
determination that Section 550-12 of the Zoning Ordinance prohibits short-term rental
use in the suburban residential zoning district.
22
request a use variance for the subject property as a short-term rental.
For his part, the zoning officer described the proceeding as follows:
This one, the application is filed for \[a property on\] Cumberland Road. They are
requesting a variance from permitted uses. The applicant is requesting use of a portion of
the residence on the subject property as a short-term rental. The property is in the
23
suburban residential zoning district where this is not permitted.
Following the expression of these less than congruent views as to the nature of the
proceeding, the hearing progressed with the testimony of Appellant, which may be
summarized as follows. The residence in question has three levels, one being the
20
N.T. 66-76, Zoning Hearing Board Hearing.
21
N.T. 13, Zoning Hearing Board Hearing.
22
N.T. 6-7, Zoning Hearing Board Hearing (emphasis added).
23
N.T. 4-5, Zoning Hearing Board Hearing.
5
24
basement, and each level has an outside entrance. She resides in the two upper levels,
25
and, following a renovation in 2018, undertaken, in part, to facilitate the endeavor, she
26
has utilized a portion of the basement for short-term rentals. The area could, in the
27
alternative, function as a den for the residence.
The average tenancy in such rentals involves one or two persons and lasts 1.4
28
days, with two weeks being the longest duration of a single rental. She provides
amenities in the form of drinks, snacks, a Keurig, microwave, two-burner stove, toaster,
29
toaster oven, mini refrigerator, and small sink, plus access to a washer and dryer.
30
However, no meals are provided.
31
a basic
Advertisements for the endeavor are placed on Airbnb and other sites,
32
price is $59, and over 350 reservations have been accommodated since its
3334
commencement. Guests park on the street, and she has never received a complaint
35
about the activity. At least two other Airbnbs are operating in the borough to her
36
knowledge.
Prior to initiating the use, she was a code enforcement
officer that rentals of fewer than 30 days were not permitted, but she was unable to find
24
N.T. 8, Zoning Hearing Board Hearing.
25
N.T. 9, 14, 36, Zoning Hearing Board Hearing.
26
N.T. 8-9, Zoning Hearing Board Hearing.
27
N.T. 25, 36, Zoning Hearing Board Hearing.
28
N.T. 10, Zoning Hearing Board Hearing.
29
N.T. 9, 14, 41, Zoning Hearing Board Hearing.
30
N.T. 9, Zoning Hearing Board Hearing.
31
N.T. 9, Zoning Hearing Board Hearing.
32
N.T. 29, Zoning Hearing Board Hearing.
33
N.T. 9, Zoning Hearing Board Hearing.
34
N.T. 10-11, 33-34, Zoning Hearing Board Hearing.
35
N.T. 12, Zoning Hearing Board Hearing.
36
N.T. 25-26, Zoning Hearing Board Hearing.
6
37
any support for that proposition in the zoning ordinance. A review of minutes of a
borough council-related meeting in 2017 revealed that the issue had been discussed, but
38
without result in the form of a change in the ordinance.
The background of the case was provided at the hearing by testimony of the
of 2017. \[Appellant\] did talk to me. I was
codes officer at the time. She did ask if it was permitted to have a short-term rental at her
minimum for rentals and I had that information from the borough manager at the time.
The information did go to the Codes and Zoning Committee of Borough Council.
They did discuss it and they looked at some caselaw out of Philadelphia and Pittsburgh,
some different college towns and they tabled it.
And then \[Appellant\] came back with a building permit to remodel the lower
ea . . . that she does rent out as the Airbnb.
And at that time, when the permit was issued, she was told that that cannot be rented.
I was under the understanding that that property was being renovated, because
her and her sister own it, and that they w
notifications from Thomas Yerkinson, who is the codes officer after me, telling her she
was in violation of our section.
There were some e-mails back and fort
Tom sent back answers. She sent back other
eventually Tom left our employ in October and I got to be both the codes officer as well
as the maintenance superintendent, so then I picked up on the case. She was sent a
39
number of notices and then she was cited for failing to close down the facility.
* * * *
d have been November, October, December,
40
somewhere in there before the issue of \[the\] building permit.
e hearing indicated that, although Appellant had initially
41
e appropriateness of he
had not become involved in the matter until August of 2019, when she consulted him
37
N.T. 15, Zoning Hearing Board Hearing.
38
N.T 15, Zoning Hearing Board Hearing.
39
N.T. 21-22, Zoning Hearing Board Hearing.
40
N.T. 23, Zoning Hearing Board Hearing.
41
N.T. 15, Zoning Hearing Board Hearing.
7
42
with respect to certain notices she had received from the borough. These notices were
legally deficient, inasmuch as they contained no advice as
43
appeal, in his opinion. He testified that he had advised Appellant that the activity in
question was permitted by right under the bo
44
The Intervenor testified at the hearing that he owned the property next to
cupied due to renovation work for the past six or seven
45
years but which he visited frequently. He had seen five or six vehicles at a time parked
ce, which he associated with her rentals, according to his
4647
r a short-term rental operation, he noted
testimony.
that the area around his property consisted predominately of single-family residential
48
structures, and expressed the view that the proposed use would change the character of
49
the neighborhood and affect property values.
hearing argued, inter alia, as follows:
. . . A bed and breakfast is not allowed in the suburban residential district. A
boarding house is not allowed in the suburban residential district. A single family
attached dwelling is not allowed in the suburban residential district.
The only difference between what is ha
a bed and breakfast is that she is permitting cooking facilities in the unit where people
sleep. That is clearly not permissible under the Ordinance.
42
N.T. 17, 19-20, Zoning Hearing Board Hearing.
43
N.T. 17, Zoning Hearing Board Hearing. This view
argument before the court on February 11, 2021, w
zoning permit application, which is similarly not in the certified record. N.T. __, Oral Argument,
February 11, 2021. As of the filing of this opinion, the transcript of the oral argument had not been
prepared or filed.
44
N.T. 18, Zoning Hearing Board Hearing.
45
N.T. 47-48, Zoning Hearing Board Hearing.
46
N.T. 48, 52, Zoning Hearing Board Hearing.
47
N.T. 48-49, Zoning Hearing Board Hearing.
48
N.T. 49, Zoning Hearing Board Hearing.
49
N.T. 50, Zoning Hearing Board Hearing.
8
a portion of the home where she lives is a distinction without a difference. . . .
* * * *
And this is not an accessory use. Your definition of an accessory use is a use
customarily incidental to the principal use. Renting a basement is not customary for a
50
residential home. . . .
One member of the public provided testimony tending to support the integrity of
51
the Airbnb system of rentals. Another member of the public, who resided on
52
Cumberland Road, testified in opposition to the request, noting his observation of
vehicles with out-of-state license plates parked illegally at the site at 1:00 and 2:00 in the
53
morning,
and characterizing the use as involving an impermissible apartment
5455
conversion, an unauthorized bed-and-breakfast commercial activity, and an
56
unsanctioned boarding house.
As noted, other members of the public commented, favorably and unfavorably,
57
with respect to the use in question. That the scope of the hearing encompassed the
activity constituted a use permitted of right under the
ordinance was assumed in the summation of her counsel at the hearing as follows:
The applicant is requesting that the Zoning Hearing Board clarify the Zoning
Ordinance to not permit \[sic\] short-term rentals in cases where the property owner resides
term rentals be screened in some slippery slope argument for absentee owners so that
people can buy up properties in Lemoyne Borough and flip them and live somewhere in
New York or California and rent them out.
interest in this property, in keeping the neighborhood safe, as much as any other person,
50
N.T. 60-62, Zoning Hearing Board Hearing.
51
N.T. 44-46, Zoning Hearing Board Hearing.
52
N.T. 59, Zoning Hearing Board Hearing.
53
N.T. 58, Zoning Hearing Board Hearing.
54
N.T. 57, Zoning Hearing Board Hearing.
55
N.T. 59, Zoning Hearing Board Hearing.
56
N.T. 59, 76, Zoning Hearing Board Hearing.
57
See N.T. 66-76, Zoning Hearing Board Hearing.
9
\[Appellant\] was a developer coming in wanting to
the case.
lot of opinions about how bed and breakfasts are or are not permitted. The fact is this is
not a bed and breakfast. It does not fit that definition. The problem here is ambiguity in
the Ordinance, which has to be resolved pursuant to the Ordinance in favor of the
property owner.
Slice of
Life, LLC v. Hamilton Township Zoning Hearing Board, 652 Pa. 224, 207 A.3d 886
(2019) (upholding township zoning hearing board
short-term rentals by non-resident owner) is an important Pennsylvania Supreme Court
decision which makes this important distinction between commercial uses and residential
58
uses.
During the hearing, the issue of scope
59
use would be open to everybody, but noting that the board had no authority to write the
60
ordinance and that its power was limited to responding to the variance request, with a
61
determination as to whether there was sufficient cause to grant that variance. In
response to a witness who asked not been stopped earlier,
the chairperson suggested thataps the civil case will hash
62
At the conclusion of the hearing, a mo
63
failed.ed provided, inter alia, as follows:
FINDINGS OF FACT
6. The Applicant is requesting a waiver from the prohibition of short-term rentals
in the Suburban Residential Zoning District, so she can engage in short-term rentals of a
64
portion of the residence on the property.
58
N.T. 62-63, Zoning Hearing Board Hearing.
59
N.T. 67, Zoning Hearing Board Hearing.
60
N.T. 75, Zoning Hearing Board Hearing.
61
N.T. 75, Zoning Hearing Board Hearing.
62
N.T. 67, Zoning Hearing Board Hearing.
63
N.T. 79-80, Zoning Hearing Board Hearing.
64
Zoning Hearing Board Decision, Findings of Fact, ¶6.
10
* * * *
13. The Applicant presented no testimony showing that there are unique
circumstances of the property that would require zoning relief.
14. The Applicant presented no testimony that the subject property cannot be
used in strict conformity with the Zoning Ordinance. Rather, the Applicant testified that
if the relief was not granted, she would continue to reside in the subject property.
15. The Applicant presented no testimony that there is any unnecessary hardship
being created by not being permitted to have short-term rentals of a portion of the subject
Property. Applicant further acknowledged that she was aware that the short-terms rentals
were not permitted in the Zoning District. However, she proceeded with renovating the
basement apartment, in part, for purposes of engaging in short-terms rentals.
16. Testimony was presented by neighboring property owners that a waiver to
allow short-term rentals will alter the essential character of the neighborhood or Zoning
district. The testimony and presentation raised concerns with increased traffic flow,
65
increased activity and parking concerns in a residential area.
CONCLUSIONS OF LAW
2. The Applicant has failed to establish\[\] the need for a variance from the
Residential District Use Requirements at Section 550-12, Table 550-3-2.
3. The Applicant has failed to show that strict adherence to the Lemoyne
Borough Zoning Code will not be practical at the subject Property.
4. The Applicant has failed to show through credible testimony that the waiver
will not change the essential characteristi
5. The Applicant has failed to meet the requirements for a variance pursuant to
66
Section 910.2 of the Municipalities Planning Code.
ites a number of specifics concerning her
interaction with the borough which were not in evidence received by the board and are
67
In a brief in support of the appeal, Appellant
dehors the record certified to the court.
requests, in the absence of a reversal, that
whether the Zoning Ordinance prohibits short-term rentals in cases where the property
68
In this regard, the brief argues as follows:
65
Zoning Hearing Board Decision, Findings of Fact, ¶¶13-16.
66
Zoning Hearing Board Decision, Conclusions of Law, ¶¶2-5.
67
See Land Use Appeal of Alese Wooditch of the Zoning Hearing Board of Lemoyne Borough, ¶5, filed
September 25, 2020.
(Cruceta),749 A.2d 1021 (Pa. Cmwlth. 2000) (facts in briefs not evidence of record).
68
Brief in Support of Land Use Appeal of Alese Wooditch, from a Decision of the Lemoyne Borough
Zoning Hearing Board, at 8, filed November 13, 2020.
11
In order to resolve the civil action filed against Appellant by the Borough Zoning
Officer, the Zoning Officer directed Appellant to file a Zoning Application
e Application requesting a variance to use a
portion of the Property as a short-term rental, and contended that the Application was
unnecessary because the use was permitted by right, and reserving the right to
supplement the Application at the zoning hearing.
The Application was heard by the Board on August 4, 2020. At the hearing,
rm rentals are permitted by right in all
residential zones pursuant to 550-12 of the Zoning Ordinance as an accessory use
subordinate to the principal use. The Borough Zoning Ordinance is silent as to the
permissibility of short-term rentals in particular and ambiguities must be resolved in
r, Appellant asserted that no variance was
determination that Section 550-12 prohibits short-term rentals in the Suburban
Residential Zoning District (SR) . . . . Additionally, Appellant requested the Board clarify
whether the Zoning Ordinance specifically prohibits short-term rentals in cases where the
property owner resides at the rental property. . . .
At the conclusion of the hearing, the Board rendered an oral decision solely
denying the variance, but failed to address
determination or the Ordinance clarification question. . . . On August 28, 2020, the Board
issued their written decision denying the variance request. The written decision also
69
failed to address, or even mention, the additional relief sought by Appellant.
on her appeal focused exclusively on the
70
request for a remand. In their briefs and at oral argument, Appellee and Intervenor
maintain that the issue before the board was whether the requisites for a variance had
7172
been shown, and that they were not. They also argue that A
73
a permitted use in her zoning district;
69
Brief in Support of Land Use Appeal of Alese Wooditch, from a Decision of the Lemoyne Borough
Zoning Hearing Board, at 3, filed November 13, 2020 (citations to record omitted).
70
N.T. __, Oral Argument, February 11, 2021.
71
Brief in Support of Appellee Lemoyne Borough Zoning Hearing Board, at 3-4, filed December 9, 2020;
at 8, 10; N.T. __, Oral Argument, February 11,
2021.
72
Brief in Support of Appellee Lemoyne Borough Zoning Hearing Board, at 3-4, filed December 9, 2020;
at 10; N.T. __, Oral Argument, February 11, 2021.
73
Brief in Support of Appellee Lemoyne Borough Zoning Hearing Board, at 4, filed December 9, 2020;
, at 6-10; N.T. __, Oral Argument, February 11,
2021.
12
74
of the variance request in effect upheld the
while Intervenor contends that as of the pplication the time for
75
solution of the issue had expired.
STATEMENT OF LAW
Zoning law.
below \[takes\] no additional testimony, \[a c
determination of whether the \[zoning hearing board\] abused its discretion or committed
Radnor Township v. Falcone, 16 Pa. Cmwlth. 283, 286, 328 A.2d 216,
conclude that the \[b\]oard abused its
discretion only if its findings are not supported by substantial evidence. . . . By
nt evidence as a reasonable mind might accept
Valley View Civic Association v. Zoning Board of
Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983) (citations omitted).
Findings required for the grant of a variance are set forth
Municipalities Planning Code as follows:
(1) That there are unique physical circumstances or conditions, including
irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical
or other physical conditions peculiar to the particular property and that the unnecessary
hardship is due to such conditions and not the circumstances or conditions generally
created by the provisions of the zoning ordinance in the neighborhood or district in which
the property is located.
(2) That because of such physical circumstances or conditions, there is no
possibility that the property can be developed in strict conformity with the provisions of
the zoning ordinance and that the authorization of a variance is therefore necessary to
enable the reasonable use of the property.
(3) That such unnecessary hardship has not been created by the appellant.
(4) That the variance, if authorized, will not alter the essential character of the
neighborhood or district in which the property is located, nor substantially or
permanently impair the appropriate use or development of adjacent property, nor be
detrimental to the public welfare.
(5) That the variance, if authorized, will represent the minimum variance that will
afford relief and will represent the least modification possible of the regulation in issue.
74
Brief in Support of Appellee, Lemoyne Borough Zoning Hearing Board, at 4, filed December 9, 2020.
75
Use Appeal, at 5, filed December 11, 2020.
13
53 P.S. §10910.2.
Under Sections 617.2(a) and 617.1 of the act, a municipality may enforce the
provisions of a zoning ordinance by way of a civil proceeding before a magisterial district
judge:
Any person, partnership or corporation who or which has violated or permitted
the violation of the provisions of any zoning ordinance enacted under this act or prior
enabling laws shall, upon being found liable therefor in a civil enforcement proceeding
commenced by a municipality, pay a judgment of not more than $500 plus all court costs,
76
including reasonable attorney fees incurred by a municipality as a result thereof. . . .
* * * *
77
District justices shall have initial jurisdiction over \[such\] proceedings . . . .
In such a case, an interpretation of the ordinance by the m
hearing board would be binding upon that court. See Johnston v. Upper Macungie
Township, 162 Pa. Cmwlth 170, 638 A.2d 408 (199
zoning hearing board is experienced and therefore expert in interpreting its own
so that designating such a board as the sole determiner
of ordinance violation is Id. at 176, 638 A.2d 411.
Enforcement notices with respect to zoning ordinances must include notice of the
ng board. 53 P.S.
§10616.1(c)(5).
Lemoyne Borough Zoning Ordinance. Section 550-11 of the Lemoyne Borough
Zoning Ordinance expresses the purpose of the Suburban Residential Zoning District as
follows:
To encourage the continued use of land for low-density residential purposes and those
78
uses which are compatible to low-density residential uses.
Permitted uses in a Suburban Residential Zoning District are group homes, single-
family detached dwellings, municipal-owned uses, parks, playgrounds, and other
noncommercial outdoor recreational uses, places of worship, public or private schools,
76
53 P.S. §10617.2(a).
77
53 P.S. §10617.1.
78
Zoning Ordinance, §550-11, Table 550-3-1.
14
agricultural operations, community gardens, forestries, certain nontower WCF \[wireless
communications facilities\], and of community gardens,
accessory day cares, family day cares, home occupations, no-impact home occupations,
and accessory structures and uses incidental and subordinate to the principal uses
79
permitted in the district, other than specified elsewhere in the ordinance.
80
A single-family detached dwelling is de
81
containing one dwe
\[o\]ne or more persons related by blood, marriage, legal guardianship, licensed or court-
appointed foster care, or legal adoption who maintain one common household and reside
in one dwelling unit; or no more than four persons who are not related to each other by
blood, marriage, legal guardianship, licensed or court-appointed foster care, or legal
Housing Act (42 U.S.C. § 3602(h), or
successor legislation) who reside in one dwelling unit and live and cook together as a
82
oviding complete, independent living
facilities for one or more persons, including permanent provisions for living, sleeping,
83
84
incidental and subordinate to the principa
Slice of Life, LLC v. Hamilton Township Zoning Hearing Board. In Slice of Life,
LLC v. Hamilton Township Zoning Hearing Board, 652 Pa. 224, 207 A.3d 886 (2019),
the Pennsylvania Supreme Cour
79
Zoning Ordinance, §550-12, Table 550-3-2.
80
Zoning Ordinance, §550-12, Table 550-3-2.
81
82
83
84
15
85
prohibited \[in a zoning ordinance\] will be and held that the use of a
building exclusively for short-term rentals was not permitted in a residential zoning
district as a single-family dwelling, where
86
he 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 rent Id. at __, 207 A.3d at 897. Such
undoubtedly affect the essential character of a neighborhood
87
and it noted the advantages of permanence and
stability in restricted residential neighborhoods:
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 en
their homes.
Id. at __, 207 A.3d at 900 (citation omitted).
APPLICATION OF LAW TO FACTS
that the requisites for a variance had not
been shown by Appellant is clearly supported by the record, and will not be disturbed.
However, given that an understood purpose
hearing board was to obtain a clarification as to the permissibility of short-term rentals in
nce, this purpose was expressed by her
85
Slice of Life, LLC v. Hamilton Township Zoning Hearing Board, 652 Pa. 224, ___, 207 A.3d 886, 902
(2019).
86
Slice of Life, LLC v. Hamilton Township Zoning Hearing Board, 652 Pa. 224, ___, 207 A.3d 886, 899
(2019).
87
Slice of Life, LLC v. Hamilton Township Zoning Hearing Board, 652 Pa. 224, ___, 207 A.3d 886, 900
(2019) (citation omitted).
16
counsel at the hearing and much of the evidence and argument at the hearing was upon
that issue, the purpose was legally consistenttponement of its civil
action before a magisterial district judge while the issue was pending, the record is
insufficient to regard as final, in a legal sense, the zoning
retation, binding at the magisterial district
judge level, by the board of the ordinance in this evolving area of the law will further the
interests of all parties, the matter will be remanded to Appellee for an interpretation, as
requested by Appellant.
ORDER OF COURT
AND NOW, this day of March, 2021, upon consideration of the Land Use
Appeal of Alese Wooditch from a Decision of the Zoning Hearing Board of Lemoyne
Borough, filed September 25, 2020, and for the reasons stated in the accompanying
opinion, the matter is remanded to Appellee Lemoyne Borough Zoning Hearing Board
for an interpretative decision regarding th
BY THE COURT,
_______________
Carrie E. Hyams, J.
Susan P. Peipher, Esq.
BLAKINGER THOMAS, PC
28 Penn Square
P.O. Box 1889
Lancaster, PA 17608-1889
Attorney for Appellant
Steven P. Miner, Esq.
CALDWELL & KEARNS, P.C.
3631 North Front Street
Harrisburg, PA 17110
Attorney for Appellee
17
Claudia N. Shank, Esq.
Peter Wertz, Esq.
McNEES WALLACE & NURICK, LLC
Suite 200
570 Lausch Lane
Lancaster, PA 17601-3057
Attorneys for Intervenor
Keith O. Brenneman, Esq.
LAW OFFICE OF KEITH O. BRENNEMAN, PC
44 West main Street
Mechanicsburg, PA 17055-6249
Supporting Counsel for Intervenor
18