IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Slice of Life, LLC and :

Val Kleyman, :

Appellants :

:

v. :

:

Hamilton Township Zoning Hearing : No. 941 C.D. 2016

Board and Hamilton Township : A rgued: April 20, 2017

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE JOSEPH M. COSGROVE, Judge ( P )

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION

BY JUDGE COSGROVE FILED: June 21, 2017

Slice of Life, LLC and Val Kleyman (Appellants) appeal from an

Or der of the Court of Common Pleas of Monroe County ( Trial C ourt ), which

upheld the decision of the Hamilton Township (Township) Zoning Hearing Board

(Board or Appellees). The Board’s decision denied Appellants’ land use request

with respect to the use of a single

- family dwelling as part of a transient lodging

busines s. Upon review, we reverse.

I. Background

Appellants own a property located at 473 Pensyl Creek Road,

Stroudsburg, Pennsylvania, 18360, Monroe County PIN No. #07

- 6279

- 02

- 13

- 7188

(Property). (R.R. 1112a.) Slice of Life, LLC is a limited liability company2

formed, organized, and existing under the laws of the Commonwealth of

Pennsylvania and is the record owner of the Property. Val Kleyman is the sole

member of Slice of Life, LLC and resides in Brooklyn, New York. (R.R. at 483a.)

On May 22, 2014, the Township Zoning Officer (Zoning Officer)

issue d an Enforcement Notice to Appellants charging them with violations of

Article IV, Section 402.1 of the Township Zoning Ordinance (Ordinance) with

respect to the Property. The Enforcement Notice charged Appellants with “[u]se

of [the Property] as Hotel an d/or other types of transient lodging, Rental of Single

Family Residential Dwelling for transient tenancies.” The Enforcement Notice

required Appellants to cease this activity by May 31, 2014. ( Tr. Ct. Op., 4/20/16 at

2. )

Appellants appealed the Enforce ment Notice to the Board, which held

hearings on August 6, September 2, October 7, November 12, and December 9,

2014, as well as on March 31, May 5, and June 2, 2015. 1 Id.

On June 12, 2015, the Board issued its decision, denying Appellants’

appeal of the Enforcement Notice. (R.R. at 6a.) Thereafter, on July 1, 2015,

Appellants filed their appeal with the Trial Court

. Id.

On April 20, 2016, the Trial Court denied the appeal, thereby

affirming the decision of the Board

. Id. at 13a. The Court found the Board did

not abuse its discretion when it upheld the violation under the Enforcement Notice

because of the “extensive evidence” 2 that “the profit motive is the entire basis for

1 After the Board conducted the August 6, 2014 hearing, Appellants added a Substantive

Validity Challenge to their appeal on August 11, 2014. The Substantive Validity Challenge

argued that the term “family” as defined in the Ordinance violates the United S tates and

Pennsylvania Constitutions.

2 ( Tr. Ct. Op. at 7. )3

the relationship” 3 of the property as a commercial enterprise. Con sequently, it

found that based upon the totality of the circumstances, Appellants are not

operating a single family dwelling, but rather conducting a short

- term, transient

lodging business, using the Property as part of that business enterprise, with a cle ar

profit motive at the Property. This appeal followed. 4

II. Issues

The issues as set forth in Appellants’ brief are:

1. [ Did the Trial Court err ] in holding that Section 402.1 of the

Ordinance does not permit the use of the Property as part of a

short

- ter m transient lodging enterprise?

2. [ Did the Trial Court err ] in holding that: “ ...while this

Ordinance has a definition for ‘family

, ’ the principle behind

Albert v. Zoning Hearing Bd. of N. Abington Twp.

, 854 A.2d

401 (Pa. 2004)[”] still applies?

3. [ Did the Trial Court err ] in holding that “it is clear there is no

substantial evidence that Appellants’ use of the Property does

not [sic] qualify as a permitted use in that zoning district under

the Ordinance ?”

4. [ Is ] the Ordinance unconstitutionally vague becaus e it prohibits

Appellants’ use of the Property?

3 Id.

4

“ When no additional evidence is taken following the determination of a zoning hearing

board, [this C]ourt's scope of review is limited to determining whether the zoning board

committed an error of law or a manifest abuse of discretion in rendering its decision.” Cottone v.

Zoning Hearing Bd. of Polk Twp., 954 A.2d 1271, 1275 n. 2 (Pa. Cmwlth. 2008). “An abuse of

discretion occurs when the findings are not supported by substantial evid ence in the record.

Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Coal Gas Recovery, L.P. v. Franklin Twp. Zoning Hearing Bd., 944 A.2d

832, 838 n. 9 (Pa. Cmwlth. 2008) (citation omi tted).4

5. Does the Ordinance unconstitutionally exclude the use of a

detached single

- family dwelling for short

- term rental?

6. [ Did the Trial Court err ] in finding that “there is an identified,

protected public interest at issue: the health, safety, and welfare

of the public ?”

7. [ Did the Trial Court err ] when if [sic] failed to recognize that

the U.S. Constitution is based on individual ownership of land

and zoning regulations are in derogation of the common law,

and, therefore, are to be strictly construed and interpreted to

allow the widest use of land and, as a result the Trial Court ’s

interpretation of the Ordinance is an unconstitutional taking of

real estate?

( Appellants’ Br. at 15

- 17. )

III. Discussion

A. The Ordinance

To begin, a thorough examination of the relevant parts of the

Ordinance is necessary. Article I, Section 103 states, in pertinent part: “ Purpose

of Ordinance This [Ordinance], ...was established in accordance with the

objectives of the ‘Pennsylvania Municipalities Planning Code’ [(MPC) 5 ]....”

Article IV, Section 402.1 further states in part:

Permitted Uses (Use Class 1 through 8)

“Permitted Uses” listed in Schedule I [of the Ordinance] shall

require no special action by the Zoning Hearing Board or by the

Planning Commission before a Zoning Permit is granted by the

Zoning Officer.

Use Class 1

– Single Family Residential

5 Act of July 31, 1968, P.L. 805, as amended

, 53 P.S. § §10101

- 11202

.5 Permitted uses include:

(a) Single family detached dwellings

(R.R. at 49a (emphasis in original).)

“Dwelling” is defined in the Ordinance as: “[a] building or structure

designed, arranged, intended, or used as the living quarters for one or more

families living independantly [sic] of each other upon the premises. The term

‘dwelling’ shall not be construed to include hotel, motel, rooming house or tourist

home.” (R.R. at 37a.)

“Family” is defined in the Ordinance as: “[o]ne or more person,

occupying a dwelling unit, related by blood, marriage, or adopt ion, living together

as a single housekeeping unit and using cooking facilities and certain rooms in

common.” ( R.R. at 38a. )

“Hotel” is defined in the Ordinance as: “[a] building designed or used

primarily as a temporary abiding place in which lodging is provided for

compensation, with or without meals, containing ten (10) or more guest rooms, and

having an outside entrance in common.” (R.R. at 40a.)

Schedule I lists the Regulations Governing The Use Of Land 6 in the

Township based upon zoning districts. 7 Id. at 46a. Pursuant to Schedule I, the

Property is located in Zoning District “A,” a residential zoning district in which

6 Schedule I addresses three uses of land in the Township: permitted uses, special uses

and conditional uses. Permitted uses are the only uses at issue in this appeal.

7 Pursuant to Section 201 of the Ordinance, a “District” or “Zone” is defined as “[a]

portion of the territory of [the] Township, within which certain regulations and requirements or

various combinations thereof apply under the provisions of this Ordinance. ” ( R.R. at 46a. )6

only single

- family residential use is permitted. 8 Id. at 189a; 646a

- 647a; Bd. Hr’g,

Notes of Testimony (N.T.), 12/9/14, at 364

- 65

.

The terms “single family,” “tourist home,” “transient lodging,” and

“transient tenancies” are not defined in the Ordinance.

B. Permitted Use

Based upon the language of the Ordinance, Appellees assert that the

use of the Property did not meet any of the permitted uses set forth in Zoning

District A. They argue that a “transient lodging business” is not listed as a

permitted use in any of the Zoning District A Use Classes. Appellees assert

“[Appellants] are collectively conducting a transient lodging business and using

the [Property] as part of that business enterprise. ” (Appellees’ Br. at 10.)

Appellees argue this matter is governed and controlled by Albert v.

Zoning Hearing Board of North Abington T o w nship

, 854 A.2d 401 (Pa. 2004),

particularly wi th regard to Appellants’ argument that their use of the Property is

consistent with a single family residential use. The Albert case focused the inquiry

on whether a single

- family dwelling could be used as a halfway house for

recovering alcoholics and dru g addicts in an R

- 1 low density residential zoning

district. The court in Albert was forced to examine the meaning of the term

“family” as the term was not defined in the ordinance in question. “In light of

these definitions [contained in the ordinance], the parties and the lower tribunals

agree that whether or not the Retreat qualified as a ‘single

- family detached

dwelling’ ultimately turns on the meaning of ‘family’ which the [o]rdinance does

8 Single family use is the only permitted use in Zoning District “A” of the Ordinance at

issue in this appeal.7

not define .” Id. at 404. (Emphasis added.) This ambiguity allowed the court to

examine and incorporate the generally understood meaning of the term “family”

into the zoning ordinance in that case.

Thus Appellees here assert that Appellants’ use of the Property as part

of a transient lodging enterprise is complete ly irreconcilable with the notion of a

single family residential zoning district.

Appellants counter that the Township cannot read unspecified

requirements into the meaning and definition of “family,” which is set forth in the

Ordinance. See JALC Real Est ate Corporation and Community Foundation for

Human Development v. Zoning Hearing Board of Lower Salford Twp.

, 522 A.2d

710, 713 (Pa. Cmwlth. 1987) (where the zoning ordinance provides an operative

defini tion of what constitutes ‘family,’ that definition co ntrols); see also Mary A.

Reed v. The Zoning Hearing Board of West Deer Township

, 377 A.2d 1020 (Pa.

Cmwlth. 1977).

In Reed

, the township suggested a single

- family dwelling could be

more strictly interpreted and limited than the plain words of the definiti on itself.

This Court rejected the township's argument that the definition of “mobile home”

in the ordinance disqualified it from being a single

- family detached dwelling,

because the definition did not explicitly describe it as such. In finding for the

p roperty owner, the Court stated:

Restrictions imposed by zoning ordinances must be strictly

construed; they may not be construed so as to restrict the use of

land by implication. The Township here asks us to infer from

[the ordinance's] definition of a m obile home that a mobile

home cannot be a single

- family dwelling. Even if we were able

to find support for such an inference in the definition, we could

not have it prevail over a definition of a single

- family dwelling

[that] clearly include[es] a mobile home. (Emphasis added.)8

Reed, 377 A.2d at 1021 (citation omitted).

In the matter before us, no evidence was presented that the guests of

the tenant under the lease were legal occupants or residents of the Property and

thus, part of the tenant’s family. Rather, the record here clearly supports that

guests were just that, simply guests of the tenant/family.

Q [Atty. Riegel] Now in your [package, the Luxury Stay, LLC

Welcome to Pensyl Creek packet] you indicate that the

– that Luxury Stay is not respons ible for the guest’s or their

visitor’s drunk and disorderly behavior. Correct.

A [Appellant Kleyman ] Correct.

...

Q Now in the package you have for tenants when they rent

from you, you point out that it does say that [Appellants

are] not responsible for the guest’s drunk and disorderly

behavior. Are there any other instructions in there about

that kind of behavior?

A In

— that kind of behavior or the other behavior in the

assumption of risk?

Q Any other behavior in the assumption of risk, both.

...

A The assumption of risk is part of the lease.

...

Q So, the ...[a]ssumption of [r]isk, which is the last two

pages of Exhibit A

- 7, is to be signed by the tenant.

A Yes.

Q ...And the tenant is saying in Paragraph 5 [of the lease]

– just briefl y read Paragraph 5.9 A “I also declare that neither I nor my guests and fellow

occupants, if applicable, are under the influence of any

chemicals substances...that may impair my mental

faculties and sound judgment at the time of the signing of

this release or at the time during my guests’ and fellow

occupants’ stay at [the Property].

...

Q So...what you believe that says and what I’m hearing is

that the tenant is saying they will not be drunk...while

they are using your [P]roperty.

A Yeah, because if they were and they damaged themselves

or they hurt someone else it should be on them not us.

...

(R.R. at 628a, 631a

- 634a.)

[Direct examination of neighboring homeowner of Property]

Q [Atty. Riegel] Any other items in [the Luxury Stay, LLC

Welcome to Pensyl C reek packet of] materials that you

wish to bring to the [B]oard’s attention?

...

A [Leopold Zappler] May I read the full disclaimer?

...

A The concern that I have here is that no

– it says within the

disclaimer “ Assuming

— ”“ At all times, guests or in the

case of a person of 25 or over, assuming responsibility

for the guest by signing this [lease] agreement, but not

being present at the [P]roperty is responsible for all and

every action of other guests and visitors in and around

the [P]roperty.”

...

Q Any other specific items from the Luxury Stay guest

packet that cause you concern?10 A Maximum Occupancy. It specifically says that you may,

indeed, bring more than the occupancy limit although

[Appellants] must approve it.

(R.R. at 628a, 631a

- 634a, 722a

- 7 24a.)

Also of relevance here, Appellants argue that the terms “transient

lodging” and “transient tenancies” do not exist in the Ordinance and therefore,

Appellees cannot improperly establish undefined permitted uses. See Borough of

Fleetwood v. Zoning Hea ring Board of the Borough of Fleetw o od

, 649 A.2d 651

(Pa. 1994) (wherein t he Pennsylvania Supreme Court held that t he letter of the

zoning ordinance is not to be disregarded or ignored under the pretext of pursuing

the spirit); see also JALC Real Estate Co rporation.

Appellants assert the Enforcement Notice cited them for “[u]se of [the

Property] as Hotel and/or other types of transient lodging, Rental of Single Family

Residential Dwelling for transient tenancies.” ( R.R. at 257a. ) Appellants argue

that the Enforcement Notice improperly established certain uses but refers to terms

for which there is no definition in the Ordinance.

Thomas J. Shepstone (Shepstone) testified for Appellants as an expert

in the field of planning and zoning:

Q [Atty. Higgs] Tom [Shepstone], now, you made the

statement that you wouldn’t have recommended the

[Enforcement Notice] be sent. In your report there are a

number of reasons you give for that position. Could you briefly go through them one at a time?

A [Shepstone] Ri ght....I wouldn’t have

– I certainly wouldn’t

have drafted [the Enforcement Notice] that way, let’s put it

that way, because I don’t believe that the basis is there for

what is said.11 For example, the [O]rdinance

– the [E]nforcement [N]otice

says, refers to “use of premises as a hotel and/or types of

transient lodging and rental of single family dwellings for

transient tenancies,” and I would note...these terms are

terms that are defined

– some of them are defined in the

[O]rdinance....there’s a very specific definition of hotel.

That hotel definition requires that you have 10 rooms that

you rent

– so, [the Property] clearly is not a hotel. That

does not require a lawyer interpretation, that is

– you

know, we put those definitions in for a reason, so that

so mebody can refer to them and understand. A person coming into a township to do business is entitled to know

what things mean and the definition of a hotel in one township may be different than another....

Likewise, there is no definition in the [O]rdinan ce for

transient lodging. There is nothing that talks about, that

defines transient tenancy, transient lodging. None of those

things are defined nor is there a use called rental of single

family dwelling for transient tenancy. That’s a use that

doesn’t exist....to say that [the Property is] a hotel, when it

clearly isn’t, and to say that it’s a use that’s not even

defined in the [O]rdinance...that’s not a proper way to go

about it.

Q I notice in Paragraph B [of Shepstone Expert Report] you

quote the [Ordin ance] as saying, “A hotel is a building

designed for use primarily as a temporary abiding place

which lodging is provided for compensation with or

without meals containing 10 or more guest rooms and

having an outside common entrance.”

A That’s correct.

Q So, a hotel has to have an outside common entrance with a

bunch of rooms off of it.

A That’s correct, and it does not exist, that’s not what’s [in

the Ordinance], so it cannot be a hotel.

(R.R. at 380a

- 382a.)12 Where a statute or ordinance defines a wo rd or phrase, the court is

bound thereby although such definitions may be different from ordinary usage.

Hughes v. School District of Pittsburgh

, 108 A.2d 698 (Pa. 1954). Zoning

ordinances are presumptively constitutional and valid, but “[r]estrictions i mposed

by zoning ordinances are, however, in derogation of the common law and (at

times) of the liberties, rights and privileges guaranteed by the Constitution of the

United States and the Constitution of Pennsylvania and therefore must be strictly

constru ed.” Medinger Appeal

, 104 A.2d 118, 120 (Pa. 1954). (Internal citations

omitted.) As such, restrictions as to what a landowner may/may not do with his

land must not be construed as to fetter the use of that land by implication. Fidler v.

Zoning Bd. of Adjustment of Upper Macungie Twp.

, 182 A.2d 692 (Pa. 1962).

“ The permissive widest use of the land is the rule and not the exception, unless

specifically restrained in a valid and reasonable exercise of the police power.” Id.

Appellants' further argume nt suggests that under Section 603.1 of the

MPC, this permissiveness is likewise the rule unless specifically restrained in a

valid and reasonable exercise of police power.

Section 603.1 of the MPC provides:

[i]n 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 a nd against any implied extension of the restriction.

Added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10603.1

.

Where doubt exists, or when there is an ambiguity in the ordinance,

“the language of a zoning ordinance should be interpreted in fav or of the13

landowner and against any implied extension of restrictions on the use of one’s

property.” Adams Outdoor Advertising, L.P. v. Zoning Hearing Bd. of Smithfield

Twp.

, 909 A.2d 469, 484 (Pa. Cmwlth. 2006). Further, “zoning ordinances are to

be lib erally construed to allow the broadest possible use of land.” Ligo v. Slippery

Rock Twp.

, 936 A.2d 1236, 1238 (Pa. Cmwlth. 2007); see also Riverfront

Development Group, LLC v. City of Harrisburg Zoning Hearing Board, 109 A.3d

358 (Pa. Cmwlth. 2015 ). “The [zoning] 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 ordinance.” Id. at 366.

A zoning board is not a legisl ative body, and it lacks authority to

modify or amend the terms of a zoning ordinance. Hill v. Zoning Hearing Board

of Maxatawny Township, 597 A.2d 1245, 1251 (Pa. Cmwlth. 1991). “[Z]oning

boards...must not impose their concept of what the zoning ordinan ce should be, but

rather their function is only to enforce the zoning ordinance in accordance with the

applicable law.” Ludwig v. Zoning Hearing Board of Earl Township, 658 A.2d

836, 838 (Pa. Cmwlth.1995) (quoting Appeal of Kline, 148 A.2d 915, 916 (Pa.

1 959)). It is the legislative body of the city, town, borough, or township that

possesses the authority to promulgate legislative acts of that governing body, and

the promulgation of a zoning ordinance is just such a legislative act. Ludwig

.

Ergo, only t he governing body may enact, modify, or amend th e terms of a zoning

ordinance.

The trial court's order stands in contrast to this Court's recent

decisions in Shvekh v. Zoning Hearing Board of Stroud Township , 154 A.3d 408

(Pa. Cmwlth. 2017) and Marchenko v. Zoning Hearing Board of Pocono

Township , 147 A.3d 947 (Pa. Cmwlth. 2016). In Marchenko , this Court held that a14

property owner, who rented her property on a short

- term basis in a residential

district permitting single

- family dwellings, did not violate the concept of a single

family residential district. In Shvekh , the owners rented out the property but

occupied it approximately one week per month. Presently, Mr. Kl e yman does not

live at the Property at all. In fact, Mr. Kl e yman lives over 100 miles f rom the

Property in a different state. Unlike the property owners in Shvekh and

Marchenko , the Property at issue is one of numerous properties owned by

Appellants as part of a business enterprise an d never occupied by Mr. Kl e yman. 9

While the facts in Shv e kh and Marchenko are distinguishable because

the owners occupied the homes a portion of the time, the controlling law is not. In

Marchenko , the zoning ordinance did not prohibit the owner of a "single family

dwelling" from renting it out. Marchenko

, 147 A.3d at 950

- 51. In Shv e kh , the

zoning board sought to expand the definition of "tourist home" to include any short

term rental, without any support in the language of the zoning ordinance. This

Court held that a vacation rental of homeowner's single

- family home did not meet

the definition of an improper "tourist home" contained in the township's zoning

ordinance. Shvekh v. Zoning Hearing Bd. of Stroud Twp ., 154 A.3d at 408, 410

-

11, 413. Referencing Marchenko , we noted that occupation of the premises was an

important but not controlling factor. Id. at 413. Enterprises such as AirBnB have

expanded the possible uses of single

- family dwellings and a township can address

such uses in the zoning ordinance. Id. at 415. Amendments, however, "cannot be

ef fected by shoe

- horning a use that involves renting an entire single

- family home

to vacationers into the definition of 'tourist home.'" Id.

9 ( R.R. at 486a. See also R.R. at 483a, 555a

. )15 Consequently, the Board here 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. Ludwig; see also

Shvek h

. Appellants have proven that ambiguity exists in the l anguage of the

Ordinance. Because of that ambiguity, we are required to interpret the language of

the Ordinance in favor of the landowner and against any implied extension of

restrictions on the use of one’s property. Shvek h ; Marchenko; Adams Outdoor

Advertising, L.P.

C. Health, Safety & Welfare of the Public

The Trial Court also found that even if Appellants could establish

their use of the Property as a legitimate business use, the Township satisfied its

initial production burden and demons trated a ‘substantial relationship’ between a

ban on using single family dwellings for short

- term transient tenancies and the

health, safety, and welfare of the public. ( Tr. Ct., Slip Op. 4/20/16 at 11. )

The Board identified three areas of issue regarding the Property as

pertains to the health, safety and welfare of the public: occupancy limit (in relation

to number of bedrooms )

, the septic system

, and disruptive tenant actions

.

The Trial Court indicated that the Board’s decision notes that “the

Property includes the placement of mattresses and/or sleep sofas [in areas] not

typically used for bedroom use.” Id. at 10. The Court further noted that Appellant

Kleyman testified he has not tested the septic system to determine if it has the

capacity to accommo date the sewage and waste water use generated by multiple

occupants of the property. Id. at 11.16 Testimony by Appellant Kleyman on cross

- examination at one point

identifies that the Property has six bedrooms and sleeps 12, while current

advertising states that the Property “sleeps 17.” (R.R. at 521a

- 523a.) Upon

recross

- examination Appellant Kl e yman testified that the Property ha s three

bedrooms but the Property sleeps “twelve to 14

. ” Id. at 622a

- 623a. When

questioned about any failure of the septic system at the Property, Appellant

Kl e yman testified there was never a failure of the septic system. Id. at 629a.

Regarding septic systems, testimony by the Zoning Officer indicates

that a township property has a septic permit for a septic system of a size to

accommodate the number of bedrooms at the property. (R.R. 671a.) The Zoning

Officer also testified that if a property owner were to add an additional bedroom,

but failed to obtain a permit for a septic system to accommodate the additional

bedroom “they would be in violation and if [the Zoning Officer ] were to become

aware of it he would...write a citation or an en forcement notice....” Id. at 672a.

The Zoning Officer also testified that the Township has never issued a citation or

enforcement notice for a visual violation pertaining to the number of bedrooms at a

property in relation to the size of the septic system permit issued. Id.

The Zoning Officer also testified that he has, however, used his

sensory perceptions (visual and smell) to identify septic system issues and as a

result, issued an “automatic notice from my office that [a property owner is] in

violati on of the zoning ordinance...because that’s the only way [violation notices

are] going to happen....” Id. at 673a. However, the Zoning Officer also testified

that a violation has never occurred with the Property in issue. Id. at 674a.

Appellees identify tha t while the Property “has many of the trappings”

of a hotel or motel type use, there is no on

- site supervision or direct control or17

observation of any sort of the occupants. ( Appellees’ Br. at 13. ) Appellees assert

that short

- term occupancy of the Proper ty does not engender a sense of

community, shared commitment to the common good of the community, level of

stability and permanence, or other characteristics identified as inherent in a single

family residential district. See i d. at 14.

In support, the a djoining neighbor of the Property 10 testified before the

Board that his experience with the individuals on the Property as:

[V]ery loud music, people screaming, often obscenities, people

running in various states of undress back and forth. My

daughter’s bedroom faces the direction of that house [on the

Property] and during weekends when that house is leased, my

daughter needs to sleep elsewhere because it is simply too loud

for her to even contemplate sleeping in any way. Fireworks,

bonfire.

(R.R. at 71 3a

- 714a.)

Appellants

, however, assert the T rial C ourt erred in finding “[t]here is

an identified, protected public interest at issue: the health, safety, and welfare of

the public. There is a substantial relationship between this identified, protected

public interest and a ban on using single family dwelli ngs for short

- term transient

tenancies.” 11

On the issue of tenant actions, Appellants argue there is nothing about

their use of the Property for short

- term rentals that necessarily violates or

endangers the health, safety, and welfare of the public “anym ore than the same

10 The adjoining property to the Property in issue is separated by a right

- of

- wa y.

11 ( Tr. Ct., Slip Op. 4/20/16 at 10. )18

occurrences cited by the [ T rial C ourt ] occurring at an owner occupied single

family residence rented for a long

- term such as one year.” 12 See Exton Quarries,

Inc. v. Zoning Bd. of Adjustment of W. Whiteland Twp.

, 228 A.2d 169

, 181 (Pa.

19 67).

In light of our previous discussion of traffic, dust and vibration,

we believe that the consultant's testimony consisted in reality of

no more than a series of epithets based solidly on only one

objection relevant to West Whiteland Township as a whol e

- that

this quarry was unaesthetic and conflicted with his projected

plans. Such an objection, as this Court has stated, is not

sufficient in and of itself to sustain the constitutionality of a

zoning restriction on the use of private property.

Exton Quar ries, Inc.

, 228 A.2d at 181.

Appellants assert the alleged problems the Township sought to

address through enforcement of the Ordinance (“noise and other disturbances”) are

not problems appropriately addressed through enforcement of the Ordinance.

Rathe r, they argue these are issues which occur in all zoning districts distinct from

the regulation of particular uses of the property. Appellants assert “these

problems” 13 can occur anywhere people gather, whether it is at a home, business,

tourist attraction

, industrial facility or other places. ( Appellant s ’ Br. at 65

- 66.)

Consequently, Appellants argue that the Township must address

issues of this nature by “clear and unambiguous general municipal ordinances

12 ( Appellant s ’ Br. at 65. )

13 The problems as identified in the Trial Court ’s opinion include the placement of

mattresses and/or sleep sofas not typically utilized for bedroom use; lack of testing of the septic

system to determine whether it has the capacity to accommodate the sewage and wastewater use

generated by multiple occup ancies; and testimony regarding loud and boisterous activity with

fireworks, obvious signs of public intoxication, public urination, loud noise, loud music, and

lewd conduct on a regular basis. ( Tr. Ct. Slip Op., 4/20/16 at 11

- 12; see also R.R. at 690a. )19

enacted pursuant to the general police power of [municipalities] and not through

zoning ordinances.” Id. at 66.

As the court in Exton Quarries, Inc. noted on the issue of public

health, safety, and welfare as applicable to deprivation of the use of prope rty via

zoning:

Zoning ordinances are valid whenever ‘ they are necessary for

the preservation of public health, safety, morals or general

welfare ,’ but ‘ the power to thus regulate does not extend to an

arbitrary, unnecessary or unreasonable intermeddling w ith the

private ownership of property, even though such acts be labeled

for the preservation of health, safety, and general welfare. ’

Moreover, it should be borne in mind that although ‘ (z)oning is

a means by which a governmental body can plan for the futu re

it may not be used as a means to deny the future’ and that

courts must determine ‘ the reasonableness of the regulation as it

applie s to conditions [n]ow existent.’ (Internal citations

omitted.)

Exton Quarries, Inc.

, 228 A.2d at 178

- 179.

Here, the Tria l Court held that the Board demonstrated a substantial

relationship between a ban on using single family dwellings for short

- term

transient tenancies and the health, safety, and welfare of the public. Our scope of

review when no additional evidence is ta ken following the determination of a

zoning hearing board, is limited to determining whether the Board committed a

manifest abuse of discretion or an error of law. Cottone

. We may conclude that

the Board abused its discretion only if its findings are not supported by substantial

evidence. Coal Gas Recovery, L.P. Substantial evidence is such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion. Id. If the

record indicates that the findings are supported by substantial evidence, we may

not disturb the Board's findings. Boundary Drive Assoc. v. Shrewsbury Township20

Board of Supervisors, 491 A.2d 86 (Pa. 1985). The Board, when presenting

evidence, must “raise specific issues concerning the proposal's general detrimental

effect on the community before the applicant is required to persuade the fact finder

that the use would not violate the health, safety and welfare of the community.”

Appeal of R.C. Maxwell Co., 548 A.2d 1300, 1303 (Pa. Cmwlth. 1988); see also

Tuckfelt v. Zoning Bd. of Adjustment of the City of Pittsburgh

, 471 A.2d 1311 (Pa.

Cmwlth. 1984).

Here, the Board did not meet its burden when it speculated as to

possible harm by the actions of Appellants’ tenants and their guests, since that

burden requires “a hig h degree of probability that [the alleged actions] will

[substantially] affect the health and safety of the community.” Appeal of O’Hara,

131 A.2d 587, 596 (Pa. 1957); Tuckfelt

.

Although conflicting testimony exists as to the number of bedrooms at

the Property, the record is devoid of evidence of any violation pertaining to

occupancy at the Property. The record identifies there was never a septic system

problem or violation at the Property. Regarding the actions of tenants and their

guests at the Prop erty, the adjoining neighbor testified he witnessed improper and

indecent conduct emanating from some guests

. ( See R.R. at 713a

- 714a. ) The

adjoining neighbor also testified the Pennsylvania State Police (PSP) were called in

November 2013. However, when questioned as to what actions the PSP took in

response to the calls around that time, the adjoining neighbor testified that “[t]he

[PSP] felt that because the [T]ownship had not, as yet, determined there to be a

violation that they would prefer to attend t o these issues subsequent to a[n

Enforcement Notice] decision made by the [T]ownship.” Id. at 695a

- 696a.

Although the PSP came to the Property on at least five separate occasions after the21

Township gave Appellants the Enforcement Notice, examination of the PSP

reports evidence that citations were not issued by the PSP for any of the reported

activities taking place on the Property. ( See Certified Record, Township Exhibit

#4 at pp. 5, 7, 9, 11, 13. )

Another resident of the Township also testified with r egard to the

Property that “[t]hese are some really bad neighbors.” Id. at 727a. Yet, that

resident went on to testify:

Unfortunately, this can also happen with any neighbor. If

somebody moves in and rents the house out to somebody else,

the exact kin d of thing can happen. In fact, they do all the time.

I’m concerned about it happening with my next door

neighbor....[My neighbor] could do the exact same things and

my only recourse would be

– I have no recourse, basically,

because we don’t have any ordin ances here [in the Township]

that address the kind of things that they’re dealing with.

...

[W]hen there is a property issue the approach within

Pennsylvania...is to find in favor of the property owner. When

there is uncertainty in wording or meaning or int erpretation it’s

to find for the property owner unless it can be proved

otherwise. And basically, to try to find some sort of little twist

or reinterpretation...just to enforce a rule and limit somebody’s

use of their property not only is

– speaks to the wa y we’re

supposed to be interpreting the law is incorrect, but also from

an ethical perspective.

...

If our [B]oard decides they want to find...this unusual way to

interpret our zoning to disapprove this use [of the Property,] it’s

like using a screwdriver o n nails. It’ll work, but it destroys the

screwdriver and every time we bend the rules to make them do

something they’re not supposed to do we damage the rule itself

and we lose respect for the rule....

Id. at 728a

- 730a. (Emphasis added.)22 Upon review, we conclude that the Trial Court ’s findings are not

supported by substantial competent evidence. The Township did not show a high

probability that the use of the Property will generate actions not normally

generated by this type of use and th at the use posed a substantial threat to the

health and safety of the community. Appeal of O'Hara ; Tuckfelt

.

There is no specific indication Appellants violated any occup ancy

limits under the Ordinance; nor were they cited for any septic system violations.

While loud music, use of obscenities, people screaming and running in various

states of undress may not be the type of conduct one would expect nor want from a

neighbor, absent anything more, these ac tions do not rise to the level of a

substantial threat to the health and safety of the community. Further, we find that

the testimony, although indicative of extremely disrespectful tenants inuring to a

disrespectful landlord, did not establish a high de gree of probability of specific

detrimental consequence to the public welfare. Appeal of O'Hara. This is not to

excuse Appellants. The conduct described is certainly subject to redress in any

number of ways, and one would expect law enforcement to be vi gilant in

responding to neighbors' complaints. Likewise, there is nothing to constrain the

Township from enacting amendments to the Ordinance which would protect

property owners' constitutional rights while providing the specific definitional

guidelines where they are now lacking. Yet as currently enacted, the Ordinance

cannot be interpreted in a manner the Trial Court suggests nor as the Board found.

We do not agree there was a substantial relationship between using

the Property for short

- term tenancie s and the health, safety, and welfare of the

public. Substantial evidence does not exist to support the Board's findings.23 IV. Conclusion

In sum, the Township’s interpretation of the Ordinance, as currently

written, is counter to the purpose of the Ord inance “as established in accordance

with the objectives of [Section 603.1] of the MPC.” (R.R. at 31a.) Those

objectives of Section 603.1 of the MPC interpret the language of zoning ordinances

in favor of the property owner and against any implied extens ion of the restriction,

where doubt exists as to the intended meaning of the language written. 53 P.S.

§10603.1; Borough of Fleetwood ; Fidler ; Appeal of O'Hara ; Adams Outdoor

Advertising, L.P.

The current language of the Ordinance does not specifically bar

Appellants’ use of the Property. To use the current language of the Ordinance, to

prevent use of the Property as a rental property, places doubt in the mind of this

Court as to the intended m eaning of the Ordinance. Such an interpretation would,

indeed, be analogous to using a screwdriver on nails.

Accordingly, we reverse.

___________________________ JOSEPH M. COSGROVE, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Slice of Life, LLC and :

Val Kleyman, :

Appellants :

:

v. :

:

Hamilton Township Zoning Hearing : No. 941 C.D. 2016

Board and Hamilton Township :

O R D E R

AND NOW, this 21 st day of June

, 2017, the order of the Court of

Common Pleas of Monroe County is REVERSED.

___________________________ JOSEPH M. COSGROVE, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Slice of Life, LLC and : Val Kleyman, :

Appellants :

:

v. : No. 941 C.D. 2016

: Argued: April 20, 2017

Hamilton Township Zoning Hearing : Board and Hamilton Township :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE JOSEPH M. COSGROVE, Judge (P)

HONORABLE JAMES GARDNER COLINS, Senior Judge

DISSENTING OPINION BY

SENIOR JUDGE COLINS FILED: June 21, 2017

I respectfully dissent from the well

- written, scholarly opinio n of the

majority

.

However, I feel that a ll of the evidence of record supports the trial

court ’ s affirmance of the Board ’s decision that appellant s are using the property

,

not as a single

- family dwelling, but rather are conducting a short

- term transient

lodging business. No doubt can exist that the intended meaning of the ordinance

was not to allow the property to be used as a short

- term rental unit for multiple

families and/or individuals. Transient short

- term rentals for multiple families or

groups we re not included within the drafters ’ intentions when restricting the zoning

use to that of single

- family properties.

__________ ___________________________ JAMES GARDNER COLINS, Senior Judge