IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tatiana Marchenko, :

: No. 2021 C.D. 2015

Appellant : Argued: June 6, 2016

:

v. :

:

The Zoning Hearing Board of :

Pocono Township, Monroe :

County, Pennsylvania, and :

Pocono Township :

:

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY 

SENIOR JUDGE FRIEDMAN FILED: September 19, 2016

Tatiana Marchenko appeals from the September 14, 2015, order of the 

Court of Common Pleas of Monroe County (trial court) affirming the decision of the 

Zoning Hearing Board (ZHB) of Pocono Township (Township). The ZHB denied 

Marchenko’s appeal of a notice of violation (Notice). We reverse.

Marchenko owns a single-family dwelling (Property) located at 122 

Nicholl Lane in the Township’s R-1 Low Density Residential Zoning District (R-1 

District). (ZHB’s Findings of Fact, Nos. 1-2; Notice at 2.) On September 26, 2014, 

Michael Tripus, the Township’s zoning officer, issued Marchenko the Notice due to 

Marchenko’s use of the Property for commercial purposes in violation of section 402 
2

of the Pocono Township Zoning Ordinance (Ordinance).1 (ZHB’s Findings of Fact, 

No. 3.) The Notice described Marchenko’s use of the Property as vacation rentals. 

(Id.) 

Marchenko appealed the Notice to the ZHB, which held public hearings 

on December 23, 2014, and January 27, 2015. (Id., Nos. 4, 8.) Tripus testified that 

Kim Cortright, a neighboring property owner, complained to Tripus that Marchenko 

was renting out the Property on a nightly or weekly basis. (Id., Nos. 11-12.) Tripus 

testified that he investigated Cortright’s complaint and observed several out-of-state 

 

1

Section 402 of the Ordinance governs R-1 Districts. Section 402(B)(1) of the Ordinance 

lists the following as uses permitted by right:

a. Single-family detached dwellings.

b. Essential services buildings and structures (see Section 535).

c. Customary accessory uses and buildings incidental to the above permitted 

uses (see Section 531).

d. Accessory buildings and uses customarily incidental to Conditional Uses 

approved under Number (2) below.

e. Home occupations (see Section 541).

f. Antennas and communication equipment buildings (see Section 522).

g. Churches and related uses (see Section 528).

h. Clubhouses for use by homeowners associations (see Section 536).

i. Open space.

j. Forestry (see Section 536).

k. Keeping of equine animals (see Section 543).
3

vehicles in the Property’s driveway on the weekend. (Id., No. 13.) Tripus testified 

that he did not have first-hand knowledge of whether the people who rented the 

Property from Marchenko were considered “families” under the Ordinance. (Id., No.

15.)

Marchenko testified that she acquired the Property in June 2014 and 

plans to live there with her extended family after they move from Russia. (Id., No. 

17.) Marchenko currently considers the Property to be her primary residence because 

she receives mail at the Property, does not own other property, and lists the 

Property’s address on her driver’s license. (Id., Nos. 16, 18-20.) Marchenko rents 

out the Property to help defray her housing expenses. (Id., No. 21.) Marchenko 

usually rents out the Property on weekends, which is when she works. (Id., No. 24.) 

During the rental periods, Marchenko stays with a friend in West Orange, New 

Jersey, and locks her personal effects in one of the Property’s bedrooms. (Id., Nos. 

22-23.) In the first 185 days that Marchenko owned the Property, she resided at the 

Property 114 days (62% of the time) and rented out the Property 71 days (38% of the 

time). (Id., No. 26.)

The ZHB also heard testimony from four of Marchenko’s neighbors: 

Cortright, Karen Perkowski, Roger Perkowski, and Joseph Nellegar. (Id., No. 27.) 

The neighbors all testified that the people who rented the Property have created noise 

and other disturbances in the neighborhood. (Id., No. 28.)

On February 25, 2015, the ZHB denied Marchenko’s appeal. The ZHB 

noted that although section 202 of the Ordinance defines “single-family dwelling,” 
4

neither that term nor any specifically-defined term in the Ordinance addresses the 

short-term renting of a single-family dwelling to a series of different families, where 

only one family lives at the single-family dwelling during a rental period.

2

 (ZHB’s 

Decision at 5-7.) The ZHB stated that although it agreed with Tripus’ description of 

this use as a vacation rental, the Ordinance does not reference or define “vacation 

rental.” (Id. at 7.) 

The ZHB concluded that Marchenko’s rental activity constituted a lodge

use. (ZHB’s Conclusions of Law, No. 3.) Although the Ordinance does not 

specifically define “lodge,” the ZHB noted that section 404.B.1 of the Ordinance lists 

“lodge” as an example of a “transient dwelling accommodation,” an undefined use 

that is only permitted in the RD Recreational District. (Id., Nos. 5-6.) The ZHB 

determined that the Merriam-Webster Online Dictionary definitions of “lodge”

accurately describe the use of the Property for short-term rentals.3 (Id., No. 4; ZHB’s 

Decision at 8.) Therefore, the ZHB concluded that the rentals constituted use as a 

lodge and, thus, were prohibited in the R-1 District. (ZHB’s Conclusions of Law, 

Nos. 7-8.)

 

2

Specifically, the ZHB distinguished Marchenko’s rentals from the uses of “bed and 

breakfast,” “boarding house,” and “rooming house or lodging house,” as defined in section 202 of 

the Ordinance.

3

The ZHB cited the following definitions of lodge as a verb: “to provide temporary 

quarters for . . . to rent lodgings to.” (ZHB’s Decision at 8 (citation omitted).) The ZHB also cited 

the following definition of lodge as a noun: “a house or hotel in the country or mountains for 

people who are doing some outdoor activity.” (Id.)
5

Marchenko appealed to the trial court, which affirmed the ZHB. The 

trial court held that the ZHB did not err in declining to interpret the term “singlefamily dwelling” to include successive, short-term occupancies by different families, 

stating that the Pennsylvania Supreme Court’s decision in Albert v. Zoning Hearing 

Board of North Abington Township, 854 A.2d 401 (Pa. 2004), established a policy 

against transient uses in districts zoned for single-family dwellings. (Trial Ct. Op. at 

5-7.) The trial court also determined that the ZHB did not err in concluding that 

Marchenko used the Property as a lodge, stating that this designation was supported 

by both the common and approved definition of “lodge” and the Ordinance’s 

inclusion of “lodge” as an example of a transient dwelling accommodation. (Id. at 8-

9.) Marchenko timely appealed to this court.4

First, Marchenko argues that the ZHB erred in concluding that her shortterm rentals of the Property are prohibited in the R-1 District and not consistent with 

the single-family dwelling use. We agree.

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). Section 202 of the Ordinance defines “single-family dwelling” as 

“[a] detached building designed for and occupied exclusively by one family.” 

Section 202 of the Ordinance defines “family” as:

 

4 Where, as here, the trial court takes no additional evidence, this court’s review is limited to 

determining whether the zoning hearing board committed an error of law or abused its discretion. 

Segal v. Zoning Hearing Board of Buckingham Township, 771 A.2d 90, 94 n.6 (Pa. Cmwlth. 2001). 
6

One or more persons, related by blood, adoption or 

marriage, living and cooking together in a dwelling unit as a 

single housekeeping unit or a number of persons living and 

cooking together in a dwelling unit as a single 

housekeeping unit though not related by blood, adoption or 

marriage, provided that they live together in a manner 

similar to a traditional nuclear family.

In order for a group of people to constitute a “family” for purposes of a single-family 

dwelling use, the group “must not only function as a family within that household, 

but in addition, the composition of the group must be sufficiently stable and 

permanent so as not to be fairly characterized as purely transient.” Albert, 854 A.2d

at 410 (emphasis added).

Here, Marchenko uses the Property as her primary residence, resides at 

the Property a majority of the time, and is the only family occupying the Property

when she resides there.

5

 Thus, 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. The ZHB did not address Marchenko’s personal use of the Property,

concluding only that Marchenko’s rental activity, wherein only one family occupies 

the Property at a time, is prohibited in the R-1 District. However, the Ordinance’s 

definition of “single-family dwelling” does not prohibit this type of rental activity, 

nor is the rental activity encompassed by any other use defined by the Ordinance. 

 

5

These facts distinguish the present case from Albert, where all of the residents of a 

proposed halfway home would reside there for an average of two to six months, and the entire 

population of the halfway house would turn over up to six times per year. 854 A.2d at 410. Under 

these circumstances, the Pennsylvania Supreme Court concluded that the residents would be purely 

transient and, thus, could not constitute a “family” for purposes of a single-family dwelling use. Id.

at 410-11.
7

Under these circumstances, the ZHB 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 concluding that Marchenko’s short-term rentals of the 

Property are prohibited in the R-1 District.

Next, Marchenko argues that the ZHB erred in concluding that her shortterm rentals of the Property constitute use as a lodge, which is not permitted in the R1 District. We agree.

In construing local zoning ordinances, courts apply the principles of the 

Statutory Construction Act of 1972, 1 Pa. C.S. §§1501-1991. Patricca v. Zoning 

Board of Adjustment of the City of Pittsburgh, 590 A.2d 744, 747 (Pa. 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.’” Id. at 747-48 (citation omitted). Any doubt as to undefined words or terms 

in a local zoning ordinance “must be resolved in favor of the landowner and the least 

restrictive use of the land.” Header v. Schuylkill County Zoning Hearing Board, 841 

A.2d 641, 645 (Pa. Cmwlth. 2004). 

Here, the ZHB concluded that three definitions of “lodge” in the 

Merriam-Webster Online Dictionary accurately describe Marchenko’s rentals of the 

Property. Two of the cited definitions relate to the term’s use as a verb, and one 

relates to the term’s use as a noun. The Ordinance uses the term “lodge” as a noun, 

citing it as an example of a transient dwelling accommodation; thus, the definitions of 
8

lodge as a verb are inapplicable here. The cited definition of lodge as a noun, “a 

house or hotel in the country or mountains for people who are doing some outdoor 

activity,” is also inapplicable. First, the ZHB did not find that Marchenko’s renters 

use the Property as a base for outdoor activities. Second, this definition indicates that 

providing short-term accommodations is the purpose of a lodge. Here, Marchenko 

uses the Property as her primary residence and rents it out a minority of the time in 

order to defray her housing expenses. Therefore, the ZHB erred in concluding that

Marchenko’s short-term rentals of the Property constitute use as a lodge.

Accordingly, we reverse.

___________________________________

ROCHELLE S. FRIEDMAN, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tatiana Marchenko, :

: No. 2021 C.D. 2015

Appellant : 

:

v. :

:

The Zoning Hearing Board of :

Pocono Township, Monroe :

County, Pennsylvania, and :

Pocono Township :

:

O R D E R

AND NOW, this 19

th day of September, 2016, we hereby reverse the

September 14, 2015, order of the Court of Common Pleas of Monroe County.

__________________________________

ROCHELLE S. FRIEDMAN, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tatiana Marchenko, :

Appellant :

:

v. :

:

The Zoning Hearing Board of :

Pocono Township, Monroe County, : No. 2021 C.D. 2015

Pennsylvania, and Pocono Township : Argued: June 6, 2016

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

HONORABLE DAN PELLEGRINI, Senior Judge

DISSENTING OPINION BY 

SENIOR JUDGE PELLEGRINI FILED: September 19, 2016

A quiet place where yards are wide, people few, and 

motor vehicles restricted are legitimate guidelines in a 

land-use project addressed to family needs. This goal is a 

permissible one. . . . . It is ample to lay out zones where 

family values, youth values, and the blessings of quiet 

seclusion and clean air make the area a sanctuary for 

people. Village of Belle Terre v. Boraas, 416 U.S. 1, 9 

(1974).

Ignoring that expression of what is the objective of single-family 

zoning, the majority incorrectly equates the term “family” in “single-family 

dwelling” with successive groups of people who happen to share a house for 

several days, as well as being in conflict with our Supreme Court’s decision in 

Albert v. Zoning Hearing Board of North Abington Township, 854 A.2d 401 (Pa. 
DRP - 2

2004). Therefore, I respectfully dissent. I, like the Board and the trial court, 

would hold that someone who offers a property for rent on a transient business 

basis is not occupying the home as a single-family dwelling, but instead is 

operating a business of renting out the property.

On June 24, 2014, Tatiana Marchenko (Marchenko) purchased a 

residential dwelling and property located in an R-1 Low Density Residential 

Zoning District (R-1 District) in Pocono Township (Township). To assist with 

paying taxes and other expenses1, Marchenko advertised the property for shortterm rental on the internet, specifically on a website known as “HomeAway,” 

www.homeaway.com. Between June 24, 2014, and December 23, 2014, 

approximately five months, Marchenko rented the property to third parties on 18

separate occasions for a total of 71 days. She would have rented it for more times 

or days if more people wanted to rent the property as, based on experience, the 

house could be rented to third parties approximately 170 days on a full year’s 

basis. Marchenko purportedly lives in the house even though she works over an 

hour away from the property in East Orange, New Jersey.

A Township zoning officer issued a Notice of Violation to Marchenko 

for using the property as a short-term rental and she appealed to the Board. 

 

1

The term “vacation rental” is neither found within nor defined by the Ordinance. 

Single-family dwellings are permitted by right in the R-1 District, and this term is defined in the 

Ordinance as “[a] detached building designed for and occupied exclusively by one family, except 

for a mobile home, as defined below.” (Reproduced Record (R.R.) at 168a.) “Transient 

dwelling accommodations” such as “hotels, motels, resorts and lodges” are not permitted within 

the R-1 District; however, the term “lodge” is not specifically defined. (Board’s February 25, 

2015 Decision at p. 8.)
DRP - 3

Neighbors testified that the renters caused noise, traffic and other disturbances in 

the neighborhood. The Board found that use of the property was not as a “singlefamily dwelling” as that term is defined but rather, due to the transient nature of 

the ever-changing short-term rentals to third parties, was more akin to a transient 

dwelling accommodation such as a lodge. Because transient dwelling 

accommodations are not permitted in the R-1 District, the Board affirmed the 

Notice of Violation. On appeal, the trial court affirmed, noting that in Albert, the 

Supreme Court of Pennsylvania “established an explicit policy regarding transient 

uses in districts zoned for single-family dwellings.” (Trial Court’s September 14, 

2015 Opinion at p. 5.)

Relying on the principle that we are 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, the majority reverses the 

Board and the trial court in determining that Marchenko’s use of the property 

constituted a “lodge” rather than broadly interpreting the term “single-family 

dwelling” to include renting property out on a short-term basis. It arrives at the 

conclusion by finding that with each successive rental of the property, the renters 

somehow function as a “family” allowing transient uses in a single-family 

dwelling. This would seem to hold true even if Marchenko did not purportedly 

reside at the property when it was not rented. Under the majority’s analysis, if the 

house was rented out every day of the year to a different group of occupants, each 

of those groups of occupants would be a “family.”

I respectfully dissent because no matter how much you stretch that 

definition of family to benefit Marchenko, it cannot be stretched to include renting 
DRP - 4

to multiple parties for short-term stays because, as the trial court noted, our 

Supreme Court in Albert held that for a group of individuals to be a family for 

zoning purposes, some level of permanence is required.

In Albert, the property owner filed a zoning application to operate a 

halfway house on a 30-acre tract of land within a residential zoning district. The 

property owner intended to accommodate between six and 15 women at the 

halfway house with an average stay ranging between two and six months, meaning 

that the entire population could turn over as many as six times a year. The halfway 

house would also employ a supervisor or “housemother” to act as head of the 

household. The zoning officer denied the property owner’s application; however, 

the zoning hearing board reversed this decision, concluding that the proposed use 

of the property was permitted under the local zoning ordinance because it qualified 

as a single-family detached dwelling. The trial court affirmed the granting of the 

application, and this Court affirmed on the basis of the trial court opinion.

Our Supreme Court reversed, holding that the halfway house could 

not qualify as a single-family dwelling under the ordinance because of the transient 

nature of its residents. In so doing, it held:

While this Court has never before explicitly stated that 

transiency is incompatible with the notion of a singlefamily household, it is undeniable 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. See, e.g., Open Door Alcoholism 

Program, Inc. v. Bd. of Adjustment of City of New 

Brunswick, 200 N.J.Super. 191, 491 A.2d 17, 21-22 
DRP - 5

(1985) (“[I]n order for a group of unrelated persons 

living together as a single housekeeping unit to constitute 

a single family in terms of a zoning regulation, they must 

exhibit a kind of stability, permanency and functional 

lifestyle which is equivalent to that of the traditional 

family unit.”); see also City of White Plains v. Ferraioli, 

34 N.Y.2d 300, 357 N.Y.S.2d 449, 313 N.E.2d 756, 758 

(1974) (“So long as a group home bears the generic 

character of a family unit as a relatively permanent 

household, and is not a framework for transients or 

transient living, it conforms to the purpose of the 

ordinance.”); Planning and Zoning Comm’n of the Town 

of Westport v. Synanon Foundation, Inc., 153 Conn. 305, 

216 A.2d 442, 443 (1966) (concluding that “everchanging” group of individuals who slept, cooked, ate, 

worked, and carried on activities in a dwelling did not 

come within the meaning of the word “family.”) Indeed, 

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. . . . Accordingly, we conclude that in order to 

qualify as a “single housekeeping unit,” a group of 

individuals in a single household must not only function 

as a family within that household, but in addition, the 

composition of the group must be sufficiently stable and 

permanent so as not to be fairly characterized as purely 

transient.

854 A.2d at 452-53.

Our Supreme Court noted that with average stays of only two to six

months, the residents of the halfway house would change on a fairly regular basis, 

and that “[t]his level of instability and transience is simply incompatible with the 

single-family concept.” Id. at 454 (citing Open Door, 491 A.2d at 22; Act I, Inc. v. 
DRP - 6

Zoning Hearing Board of Bushkill Township, 704 A.2d 732, 735 (Pa. Cmwlth. 

1997); Lakeside Youth Service v. Zoning Hearing Board of Upper Moreland 

Township, 414 A.2d 1115, 1116 (Pa. Cmwlth. 1980)).

The level of instability and transience in the present case is even 

greater as Marchenko’s property was listed for rent on a daily basis. Over the 

course of five months, she admittedly rented the property 18 separate times. 

During the peak vacation period, the property was rented for up to 21 days per 

month. The issues created by this high level of transience and instability are borne 

out by the testimony of Marchenko’s neighbors that they had to call the police due 

to loud noise late at night, as many as 17 cars parked on the property at one time, 

and they had to ask the renters to quiet down on several occasions, once when 

individuals were setting off fireworks while intoxicated. These facts support the 

Board’s finding that Marchenko’s use of the property did not comply with that of a 

single-family dwelling and, therefore, was prohibited in the R-1 District.

Accordingly, for the foregoing reasons, I respectfully dissent.

 

DAN PELLEGRINI, Senior Judge