IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cheri Ann Leinberger, Matthew S. :
Leinberger, Daniel P. Seneca, :
Kathleen A. Seneca and :
William J. Necker, :
Appellants :
:
v. : No. 1620 C.D. 2017
: Argued: May 12, 2020
Anthony G. Stellar, as Trustee :
of the Deborah E. Stellar :
Revocable Trust :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: September 25, 2020
Following remand from the Supreme Court, we reconsider our decision
in Leinberger v. Stellar as Trustee of Deborah E. Stellar Revocable Trust (Pa. Cmwlth.,
No. 1620 C.D. 2017, filed October 11, 2018), 2018 WL 4924786 (unreported)
(Leinberger I), in light of intervening precedent Slice of Life, LLC v. Hamilton
Township Zoning Hearing Board, 207 A.3d 886 (Pa. 2019) (Slice of Life II),
regarding the short-term rental use of single-family dwellings. In Leinberger I, this
Court affirmed the Lehigh County Court of Common Pleas’ (Trial Court) order
deeming short-term rentals of a family cabin located in a preservation zoning district
permissible under the Lynn Township Zoning Ordinance of 1982 (Ordinance).
Based on the compatibility of the use with the Ordinance and the facts found below,
we affirm the Trial Court’s order allowing short-term rentals of a single-family
dwelling located in a preservation zoning district.
I. Procedural Overview
In 2015, individuals owning nearby property (collectively, Neighbors)1
filed a complaint2 in the Trial Court against Anthony G. Stellar, as Trustee of the
Deborah E. Stellar Revocable Trust (Trustee), to enjoin the short-term rental use of a
dwelling on property owned by the Stellar Family Trust (Trust) under Section 617 of
the Pennsylvania Municipalities Planning Code (MPC).3 Initially, the Trial Court
enjoined Trustee’s short-term rentals as inconsistent with the Ordinance. However,
on post-trial motions, the Trial Court ruled in Trustee’s favor based on this Court’s
decisions allowing such use of a single-family dwelling. See Shvekh v. Zoning Hr’g
Bd. of Stroud Twp., 154 A.3d 408 (Pa. Cmwlth. 2017), overruled by Slice of Life II;
Marchenko v. Zoning Hr’g Bd. of Pocono Twp., 147 A.3d 947 (Pa. Cmwlth. 2016),
overruled by Slice of Life II. In 2017, Neighbors appealed to this Court, which affirmed
in Leinberger I. Neighbors then appealed to the Supreme Court, which vacated our
order and remanded the matter for review under its 2019 decision in Slice of Life II.
1
Cheri Ann Leinberger, Matthew S. Leinberger, Daniel P. Seneca, Kathleen A. Seneca and
William J. Necker, referred to as Neighbors in Leinberger I, own property proximate, but not
necessarily adjacent, to the subject property.
2
The complaint also included a public nuisance claim, on which Neighbors prevailed, and
which is not at issue on appeal.
3
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10617. Section 617 of the MPC,
entitled “Causes of action,” provides in relevant part:
In case any building, structure, landscaping or land is, or is proposed to be,
erected, constructed, reconstructed, altered, converted, maintained or used
in violation of any ordinance enacted under this act or prior enabling laws,
the governing body or, with the approval of the governing body, an officer
of the municipality, or any aggrieved owner or tenant of real property who
shows that his property or person will be substantially affected by the
alleged violation, in addition to other remedies, may institute any
appropriate action or proceeding to prevent, restrain, correct or abate such
building, structure, landscaping or land, or to prevent, in or about such
premises, any act, conduct, business or use constituting a violation.
53 P.S. §10617 (emphasis added).
2
II. Background
A. Material Facts
The Trust owns a 48.1-acre property located at 7963 Springhouse Road,
New Tripoli, Lynn Township (Township), Pennsylvania (Property). The Property
lies within two different zoning districts, the Blue Mountain Preservation (BM)
zoning district and the Agriculture Preservation (AP) zoning district. Both zones
permit a limited number of uses, including use as a single-family detached dwelling.
In the AP zoning district, the Property is improved with a luxury cabin
(Cabin) that is designed as a single-family detached dwelling. Reproduced Record
(R.R.) 593a (“The [C]abin is in AP.”). Relevant here, the purposes of the AP zone
are to promote the continued use of the area for agricultural
purposes and to protect the integrity of the area for agricultural
uses. Although limited non-agriculturally related residential
development is permitted, this district is not intended to serve as
an area for widespread suburban/exurban development.
Lynn Twp., Pa., Zoning Ordinance §341 (1982) (Intent of AP Zone) (emphasis added).
Since 2010, Trustee rented the Cabin to third parties for various lengths
of time, ranging from two nights to a few weeks. Trustee rented the entire Cabin to
a single group at a time. Trustee’s family occasionally reserved the Cabin for events,
but did not use it as a primary residence. Also, Trustee’s family and friends visited
the Cabin when it was not reserved for renters or a family event. For approximately
30% of the year, the Cabin is rented to third parties, whereas for the remainder of
the year, the Cabin is used by or available for use by Trustee’s friends and family.
See R.R. at 475a-76a, 480a-84a.
3
Starting in 2015, Neighbors complained Trustee’s short-term rental use
of the Property impaired their enjoyment of their homes and enlisted the Township
to prohibit rental of the Cabin and related recreational use of its environs. When the
Township declined, and advised the short-term rentals did not violate the Ordinance,
Neighbors filed a private enforcement action pursuant to Section 617 of the MPC,
seeking to enjoin Trustee’s use of the Property for short-term rentals as inconsistent
with the permitted use as a single-family dwelling under the Ordinance.4
Neighbors’ suit proceeded to a two-day bench trial in February 2017,
where the parties, manager of the Property and the Township zoning officer testified.
After trial, the Trial Court issued an order enjoining Trustee from short-term rental
use of the Cabin. In so doing, the Trial Court concluded that Trustee’s short-term
rentals violated the Ordinance because the use of the Cabin did not meet the definition
of a “single-family detached dwelling as set forth in the Ordinance.” Tr. Ct., Slip
Op., 6/7/17, at 22 (Original Op.). It acknowledged “[Neighbors] did not appear to
challenge all of the components of [Section 925.3]” except for “use of the word
‘family.’” Id. at 15. However, recognizing “the groups of people who use [the
Cabin] periodically, whether they are the family of [Trustee] or renters, appear to
function as a group or family,” the Trial Court noted “there is no permanency to their
residing [i]n the [Cabin].” Id. at 22 (emphasis added). Relying on Albert v. Zoning
Hearing Board of North Abington Township, 854 A.2d 401 (Pa. 2004), and Appeal of
Miller, 515 A.2d 904 (Pa. 1986), the Trial Court concluded the meaning of “family”
necessarily included components of stability and permanency. Original Op. at 22.
4
Section 925.3 of the Ordinance defines “Dwelling unit – single[-]family detached,” in
relevant part, as: “[a] dwelling unit on a permanent foundation … designed and occupied as a
residence for one (1) family . . . .” Reproduced Record (R.R.) at 173a.
4
In analyzing the use of the Cabin generally, the Trial Court noted that
because the Trust was the owner, there was no permanent resident. As a result, it
classified all users of the Cabin as tenants of the Trust, whether for profit, as with
third parties, or for free, as with Trustee’s family and friends. Building on these two
classes of tenants, the Trial Court concluded, to the extent Trustee rented the Cabin
to third parties, a profit motive underlay the use, which was inconsistent with the
permitted use of a single-family dwelling. Thus, based on the composition of the
group occupying the Cabin not qualifying as a “family,” the Trial Court determined
Trustee’s use of the Cabin did not meet the Ordinance’s definition of a “single[-]
family detached dwelling.” Id. Therefore, the Trial Court ruled in Neighbors’ favor
and granted their requested injunctive relief.5
Trustee then filed post-trial motions,6 challenging the Trial Court’s
decision to the extent that it enjoined the rental of the Cabin based on the incongruity
of short-term vacation rentals with the permitted single-family dwelling use.
The Trial Court reconsidered its decision in light of this Court’s then
recently published decision in Shvekh. There, we held that where a zoning ordinance
did not prohibit use of single-family dwellings for short-term vacation rentals, the
zoning hearing board erred in upholding an enforcement notice against the landowner.
Relying on this Court’s rationale in Shvekh and Marchenko, the Trial Court reached
the opposite result, concluding the Ordinance did not prohibit short-term rentals as
5
The Trial Court also determined Neighbors met the other two elements for injunctive
relief under Section 617 of the MPC, in that they: (1) provided 30 days’ advance written notice to
the Township prior to instituting the enforcement action; and (2) established the Ordinance
violation (i.e., allowing short-term rentals) affected their enjoyment of their property.
6
Though Trustee raised other issues in post-trial motions, they are not germane to this appeal.
5
incompatible with a single-family dwelling use. See Tr. Ct., Slip Op., 10/12/17 (Post-
Trial Op.), R.R. at 142a-50a. Essentially, the Trial Court determined Trustee’s short-
term rental use was permissible under the Ordinance based on this Court’s precedent
at the time. As a result, it denied Neighbors’ request for injunctive relief under Section
617 of the MPC, stating: “specifically, [Trustee] is not enjoined from allowing anyone
to use the [Property] for short term rentals, whether paid or unpaid . . . .” R.R. at 141a.
Neighbors subsequently appealed the Trial Court’s order granting partial post-trial
relief to Trustee to this Court.
B. Leinberger I
In Leinberger I, this Court addressed whether the Trial Court erred in
denying Neighbors’ request to enjoin short-term rentals as inconsistent with use as a
single-family dwelling under the Ordinance. Based on then-current precedent,
including Slice of Life, LLC v. Hamilton Twp. Zoning Hearing Board, 164 A.3d 633
(Pa. Cmwlth. 2017) (Slice of Life I), in October 2018, this Court affirmed the Trial
Court’s order, thus allowing Trustee’s short-term rental use. Id.
Critically, at that time, the Supreme Court undertook review of our
decision in Slice of Life I. The Court granted review on the following question:
Whether the Commonwealth Court disregarded the binding
precedent of this Court, set forth in the case [of] Albert . . . by
finding that the purely transient use of a property as part of a
commercial short-term vacation rental business was a permitted
use in a residential zoning district?
Slice of Life II, 207 A.3d at 896 (quoting February 21, 2018 Order Granting Appeal)
(emphasis added). In 2017, this Court decided Slice of Life I based on our decisions in
6
Shvekh and Marchenko permitting short-term rentals of single-family dwellings.
Pursuant to that precedent, Leinberger I held the Ordinance allowed Trustee’s short-
term rental use of the Cabin.
C. Subsequent History
Neighbors petitioned the Supreme Court for review of Leinberger I,
which the Court granted. In the interim, the Court decided Slice of Life II, reversing
this Court’s decision holding the short-term rental of a residentially zoned property
was consistent with use as a single-family dwelling, thus calling into question the
jurisprudence underlying Leinberger I. Then, the Supreme Court vacated the
decision in Leinberger I and remanded the matter to this Court for further review.
Following briefing and argument, we reexamine the matter under current law.
III. Issue on Remand
In light of Slice of Life II, this Court reconsiders the Trial Court’s order
on post-trial motions that declined to enjoin Trustee’s short-term rentals of the Cabin,
thus deeming the short-term rental use consistent with single-family dwelling use
permitted in the preservation zones under the Ordinance.
IV. Discussion
Section 617 of the MPC provides a private enforcement mechanism to
landowners to enjoin a use in violation of an ordinance. See Smith v. Ivy Lee Real
Estate, LLC, 165 A.3d 93 (Pa. Cmwlth. 2017). Therefore, Neighbors are entitled to
injunctive relief and reversal of the Trial Court’s order only if they establish Trustee’s
short-term rental use of the Cabin in the AP zoning district violates the Ordinance.
7
On appeal from an order issued pursuant to Section 617 of the MPC, “[our review]
. . . is severely restricted . . . . We will not reverse if apparently reasonable grounds
exist for the relief ordered and no errors or inapplicable rules of law were relied on.”
Siegmond v. Duschak, 714 A.2d 489, 491 n.1 (Pa. Cmwlth. 1998) (noting deferential
review to trial court when applying Section 617 of the MPC).
In their brief, Neighbors argue the holding of Slice of Life II compels
reversal of the Trial Court’s order granting post-trial relief to Trustee. They assert,
under current precedent, Trustee’s short-term rental use, with stays as short as a few
days as found here, is inconsistent with use as a single-family dwelling. They
maintain that the rental of the Cabin 30% of the time, and its potential availability
for rent 90% of the time, shows a transient use. Neighbors contend the record does
not support Trustee’s assertion that friends or family used the Cabin 70% of the time.
Trustee counters that Slice of Life II does not prohibit short-term rental
use in an area zoned for single-family dwelling use on a per se basis. Rather, the
Court was limited to the question presented to it, which was predicated on the use of
property as “purely transient” and as part of a commercial short-term rental business.
Appellee’s Br. at 4. Trustee emphasizes the distinguishing facts in the instant case.
Although the Cabin is rented for approximately 30% of the year, Trustee does not
operate a commercial business through which it rents other properties. Also, for a
substantial portion of the year, Trustee’s friends and family use the Cabin rent free.
Because the use is not primarily commercial and Slice of Life II was based on the facts
presented, Trustee asks this Court to uphold the Trial Court’s ruling in his favor.
8
A. Slice of Life II
In April 2019, our Supreme Court reversed this Court’s 2017 decision
in Slice of Life I, and thus called into question our case law deeming short-term rental
use consistent with residential single-family dwelling use. See Slice of Life II
(holding corporate owner’s web-based rental of single-family dwelling was not
permitted use in residential district; overruling Shvekh and Marchenko). There,
corporate owner Slice of Life (SoL) used and marketed its six-bedroom dwelling as
an investment property engaged in tourism in the Pocono Mountains. Ownership by
SoL was completely separate from occupancy or use of the dwelling.
The Supreme Court’s decision was bound by the facts set forth in the
question on which the Court granted appeal. These predicate facts were: “purely
transient use”; “as part of a commercial short-term vacation rental business”; and
located “in a residential zoning district.” See Order Granting Appeal.
Additionally, the Court was bound by the findings of the zoning board.
The zoning board concluded SoL’s short-term rental use was inconsistent with the
ordinance. Slice of Life II. Specifically, it determined the “short[-]term transient lodging
rental business and use of the [property] is the operation of a business in the Single[-]
Family Residential District contrary to the provisions of the [o]rdinance resulting in
a purely transitory occupancy of the [property].” Id. at 894 (emphasis added). The
zoning board also found the dwelling was owned by a non-resident corporation.
In determining short-term rentals of property used on a purely transient
basis as a commercial business was inconsistent with single-family dwelling use, the
9
Court started with the relevant ordinance. It noted the ordinance defined “family”
narrowly as occupants of a dwelling, “related by blood, marriage, or adoption, living
together as a single housekeeping unit.” Id. at 892 (emphasis added). It reasoned a
single housekeeping unit may be established when occupants of a home “lived and
cooked together[,] . . . attended social and religious functions together and celebrated
holidays jointly . . . and the activities of the home were shared in by all occupants .
. . .” Id. at 890. In that regard, the Court noted that “neither [the property manager]
nor [SoL] is aware of (or makes any effort to ascertain) the relationship, if any
between the individuals occupying the [p]roperty at any given time . . . [and] collects
no information regarding the [occupants].” Id. at 893. Thus, there was no evidence
that occupants functioned as a single housekeeping unit. Indeed, the Court pointed
out that sometimes more than one group or family rented the dwelling at the same
time because it could accommodate 17 people.
Building on its decisions in Albert and Miller, the Court emphasized
the importance of permanent residency in a residential zoning district. It explained
“the composition of the group must be sufficiently stable and permanent so as not to
be fairly characterized as purely transient.” Id. at 891. While the Court did not
define “purely transient,” it described the phrase in terms of duration of stay/resident
turnover. In its analysis, the Court compared the duration of residence by group home
members in Miller with that of recovering addicts in a halfway house in Albert. It
deemed the residence in Miller stable, as one member lived in the group home for
eight years, whereas the residence in Albert was transient because there was consistent
turnover of program participants, who lived in the recovery house only temporarily,
with two- to six-month stays.
10
In holding that “purely transient” residence is incompatible with the
definition of family, the Court relied on its decision in Albert, which involved the
operation of a recovery house in a residential district. Applying Albert to SoL, the
Court reasoned a residence designed for use on a temporary basis, such that there
was regular turnover of occupants, was inconsistent with the inherent stability of a
single-family dwelling use in a residential zone. Slice of Life II.
In Slice of Life II, ultimately, the Supreme Court did not impose an
absolute prohibition on a short-term rental use in a single-family dwelling. Rather,
the Court’s decision reflects the importance the Court places on certain concepts for
discerning the quintessential characteristics of a “Single-Family Residential use.”
Id. at 898. The Court reviewed the relevant definitions of family, dwelling and one-
family dwelling in the Slice of Life ordinance, which required occupation of the
dwelling as a residence for one family exclusively, and specifically “[did] not
include a hotel, motel, rooming houses or other tourist home.” Id. at 899. Thus, its
holding was compelled by the predicate facts and those found by the fact-finder, and
the language of the zoning ordinance as applied to those facts.
Significantly, Slice of Life II did not alter a fundamental precept of
zoning jurisprudence that the language of the ordinance crafted by the locality
governs. The Court emphasized that zoning is a valid exercise of police power,
insulating areas intended for residential living. It is in that context of a residential
zoning district that the Supreme Court held that the exclusively for-profit use of the
dwelling in Slice of Life II was incompatible with single-family dwelling use.
11
B. Analysis
Zoning is inherently local, involving a multiplicity of factors affecting
the permissible uses of property. See Rice Family Tr. v. City of St. Marys, 51 A.3d
913 (Pa. Cmwlth. 2012) (noting stated purpose of a particular zoning district is a
significant factor in analyzing use under ordinance). In reviewing the permissibility
of uses, we consider the purpose of particular districts and local concerns:
Zoning accounts for the “natural, scenic, historic and esthetic
values of the environment” . . . by placing compatible uses in the
same zoning district; by establishing minimum lot sizes and
dimensional requirements; providing parking and signage
controls; and requiring landscape and screening controls. This
list goes on. It is axiomatic that a zoning ordinance must balance
the public interests of the community with the due process rights
of private property owners.
Frederick v. Allegheny Twp. Zoning Hr’g Bd., 196 A.3d 677, 695 (Pa. Cmwlth.
2018) (en banc) (citation omitted). Here, the issue is whether Trustee’s short-term
rental of the Cabin is a permissible use of a single-family dwelling in the AP zone.
The issue of whether a proposed use “falls within a given category [of
use] specified in a zoning ordinance is a question of law.” Southco, Inc. v. Concord
Twp., 713 A.2d 607, 609 (Pa. 1998). As such, appellate review is limited to whether
the lower court committed legal error. Id. “We are bound by the facts as found by
the [fact-finder] that are supported by substantial evidence, which [is] defined as
‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Slice of Life II, 207 A.3d at 898-99 (citation omitted).
12
Traditional principles for construing a zoning ordinance apply. An
ordinance is construed pursuant to the principles in the Statutory Construction Act
of 1972, 1 Pa. C.S. §§1501-1991. Terms that are not defined in the ordinance must
be construed in accordance with their plain language. See 1 Pa. C.S. §1903(a).
Further, “zoning ordinances are to be liberally construed to allow the
broadest possible use of land.” Ligo v. Slippery Rock Twp., 936 A.2d 1236, 1238
(Pa. Cmwlth. 2007). The “language of a zoning ordinance should be interpreted in
favor of the landowner and against any implied extension of restrictions on the use
of one’s property.” Adams Outdoor Advert., LP. v. Zoning Hr’g Bd. of Smithfield
Twp., 909 A.2d 469, 484 (Pa. Cmwlth. 2006); see also Section 603.1 of the MPC, 53
P.S. §10603.17 (stating restrictions on use of property “shall be [so] interpreted, where
doubt exists as to [its] intended meaning . . . ”).
1. Compatibility of Use with Ordinance
The above principles guide our analysis of the Ordinance. It defines
the pertinent terms as follows: “Dwelling unit” - “Any structure or part thereof,
designed to be occupied as living quarters as a single housekeeping unit” (§925);
“Dwelling unit; single[-]family detached” - “A dwelling unit on a permanent
foundation . . . designed and occupied[8] as a residence for one (1) family . . . ”
7
Section 603.1 was added by the Act of December 21, 1988, P.L. 1329.
8
In its Original and Post-Trial Opinions, the Trial Court misquotes Section 925.3 of the
Ordinance, where it defines “Dwelling unit – single[-]family detached” in that it substituted the
word “constructed” for “occupied.” See Original Op. at 22, Finding of Fact No. 9; Post-Trial Op.
at 8. The parties did not note the discrepancy because the word “occupied” was not the focus of
Neighbors’ private action. Nonetheless, it is clear the Trial Court considered the term “occupied”
which is contained and accurately quoted in the umbrella definition of “Dwelling unit” in Section
13
(§925.3); and “family” - “one or more individuals living independently as a single
housekeeping unit and using cooking facilities and certain rooms in common . . . .”
(§926). Ordinance, §§925, 925.3, and 926 (emphasis added); R.R. at 172a-73a.
Based on the language of the Ordinance, we agree with the Trial Court
that the short-term rental use of the Cabin conforms to these definitions. The Cabin
qualifies as a “dwelling unit” under the plain language of the definition, and neither
party disputes that the Cabin was designed and occupied as a single-family dwelling.
Slice of Life II does not compel a different result on remand because that case was
factually and procedurally distinguishable and involved a materially different zoning
ordinance.
a. Legal Distinctions – Ordinances Compared
First, the Ordinance is clearly distinguishable from that in Slice of Life.
There, the definition of family was limited to a familial relationship, by blood,
adoption or marriage. Also, dwelling was defined in terms of residential use as “a
building or structure to be used as ‘living quarters for one or more families,’” but
does not include “hotel, motel, rooming houses or other tourist home.” Id. at 899.
The ordinance also defined “one-family dwelling” as “a building on a lot designed,
arranged or intended for and occupied exclusively as a residence for one family.” Id.
at 892 (emphasis added).
925. As the definition of single-family detached is a subset of “Dwelling unit,” and there is no
contention that the substitution affected the analysis or result in this case, we do not deem the
oversight material.
14
Significantly, the Ordinance does not mandate the use, residence or
occupation of a “dwelling unit” solely by one family in its definition. By contrast, the
Slice of Life ordinance required occupation of the single-family dwelling by one
qualifying family “exclusively.” Id. As such, the definition contemplated and rejected
use of a single-family dwelling by more than one family. The “single-family detached”
definition in Section 925.3 of the Ordinance includes the terms “designed and
occupied as a residence,” there is no qualifier for exclusive occupation by one family.
Also unlike Slice of Life, the Ordinance did not exclude from the definition of dwelling
a hotel, motel, rooming house or tourist home, which terms implicate rentals to
tourists, thus, barring such use in a dwelling. Here, the Ordinance does not prohibit
short-term rentals of a single-family dwelling.
In addition to the material distinctions in the ordinance definitions, the
type of zoning district and the character of the zone where the use occurred differs.
SoL’s property was located in Zoning District A, which provided for use class 1 –
single-family residential. Trustee uses the Cabin for periodic short-term rentals in a
preservation zone, not a residential zone. The intent of the preservation zones is land
preservation and reduced development. See Ordinance, §341. This starkly contrasts
with the purpose of residential community at the heart of residential zones.9
Second, and importantly, the rationale of the Court in Slice of Life II
focused on the compatibility of short-term rental use in a residential zoning district.
It connected the need for permanence and stability to the type of district, stating that
9
The Township also includes a “Rural Residential” district, the purpose of which is “to
permit the orderly development of residential neighborhoods of single[-]family detached and
cluster housing at a density equal to the Rural District, or a slightly greater density where public
sewer is available, as well as agriculture related operations and businesses.” Ordinance, §391.
15
upholding the zoning board was “entirely consistent with the long-recognized goals
of creating a residential zoning district.” Id. at 899; see Albert, 864 A.2d at 409
(explaining single-family zoning districts “create residential neighborhoods in
which the residents may develop a sense of community and a shared commitment to
the common good of that community”). From that foundation, it reasoned:
Non-family uses, including fraternity houses and boarding houses,
have been found to be antithetical to the “residential character,” as
“[m]ore people occupy a given space; more cars . . . continuously
pass by; more cars are parked; [and] noise travels with crowds.” . .
. 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 . . . . The
police power is not confined to elimination of filth, stench, and
unhealthy places. 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.
Slice of Life II, 207 A.3d at 889 (emphasis added) (quoting Vill. of Bell Terre v.
Boraas, 416 U.S. 1, 9 (1974) (citations omitted)).
This rationale precluding short-term rentals in a residential zone based
on homeowners’ rights to community and quiet enjoyment of their property is ill-
suited to a cabin located on a 48-acre tract in an AP zone.10 In this zoning context,
the need for retaining the essential character of a single-family residential zone is
lacking.
10
As to a right to quiet enjoyment of their homes, the Trial Court ruled in Neighbors’ favor
on the public nuisance claim and imposed limitations on the use of the Property to preclude those
that posed a nuisance. The disposition of that claim remains undisturbed.
16
Further, the procedural posture of this case is unique. Unlike Slice of
Life II, the instant case did not arise from a landowner’s challenge to a zoning
enforcement notice whereby the zoning officer made a determination that the
challenged use was inconsistent with the ordinance. See, e.g., Slice of Life I; Shvekh;
Marchenko.11 There was no such determination here. Rather, Neighbors notified
the Township of their intention to bring a private enforcement action under the MPC
to enjoin Trustee’s short-term rental use, and proceeded with their claim despite the
locality’s determination that the use challenged did not violate the Ordinance. See
R.R. at 79a-80a (Zoning Officer Letter); 576a-79a (Testimony of Zoning Officer).
In this alternate procedure, the Township zoning board did not render
findings or conclude the short-term rentals violated the Ordinance. To the contrary,
here, the Township zoning officer declined to find the short-term rentals of the Cabin
constituted a violation, despite Neighbors’ complaints. See R.R. at 79a-80a. In fact,
following an investigation, he concluded that “the [P]roperty and activities at 7963
Springhouse Road are in compliance with the [Ordinance].” R.R. at 79a. He advised
that under the Ordinance, “[t]here is no prohibition on renting residential property in
either the AP or the BM zoning district. Therefore, the rental of the [P]roperty, as a
residential use, does not violate any [Ordinance] provision.” Id. (emphasis added).
Additionally, after voir dire, the Trial Court accepted the Township
zoning officer as an expert able to opine regarding compliance with the Ordinance.
R.R. at 559a. The zoning officer was aware of the weekend rentals of the Cabin
when he determined the short-term rentals did not violate the Ordinance. R.R. at
11
In all three cases, this Court reversed the county courts of common pleas that upheld the
zoning hearing boards’ determinations deeming such use inconsistent with the governing ordinances.
17
579a. Thus, the record contains expert testimony that the short-term rentals were
consistent with use as a single-family detached dwelling. R.R. at 576a-80a.
Further, it bears emphasis that because Neighbors filed suit under
Section 617 of the MPC, Neighbors bore the burden of proving a violation of the
Ordinance. Siegmond. Trustee bore no burden to show compliance. In addition,
Neighbors set forth the purported Ordinance violation in their pleading, thus defining
the scope of the violation.12 Here, that was limited to whether the occupants of the
Cabin who used it on a short-term basis, whether for free (Trustee friends/family) or
for rent (third parties), qualified as a “family” under the definition in Section 926.
Mindful of the context of the zoning district and a locality’s prerogative
to create and enforce its zoning plan,13 this Court agrees with the Trial Court and the
zoning officer that Trustee’s short-term rentals of the Cabin, located on 48 acres in a
preservation zone, do not constitute a violation of the Ordinance’s intent or its terms.
12
At no point in this five-plus year litigation did Neighbors challenge any component of
the single-family detached dwelling unit definition other than that as “residence by one (1) family,”
focusing on the term “Family.” Neighbors did not notice the Trial Court substituted the word
“constructed” for “occupied” in the definition indicating it was not material to their allegations.
Had Neighbors drawn this Court’s attention to the difference, we may have noted it in Leinberger
I, but they did not. Regardless, because Neighbors did not argue that point in their briefs on post-
trial motions, the issue as to the meaning of “occupied” in “Dwelling unit – single[-]family
detached” (to the extent one exists) was not part of their MPC challenge. Siegmond v. Duschak,
714 A.2d 489 (Pa. Cmwlth. 1998) (holding issue not briefed in post-trial motions was waived).
13
Our Supreme Court acknowledged “the prevalence of short-term rentals in Pennsylvania
. . . requir[es] cities, townships and boroughs to make case-by-case determinations of whether and
where such rentals should be permitted.” Slice of Life II, 207 A.3d at 897. The Court thus
recognized the permissibility of short-term rentals is a highly fact-intensive inquiry appropriate for
determination by the locality.
18
b. Factual Distinctions
Also, based on the found facts, this case is factually distinguishable
from Slice of Life II. The holding in Slice of Life II applies as a matter of law to
“exclusive use of the [p]roperty as a short-term rental.” Id. at 898. However, the
instant case does not patently involve such exclusive use for a singular for-profit
purpose. In fact, both parties represent use by Trustee’s friends and family as a
percentage of the total use over a year, disagreeing only about the percentage of that
use.14 Indeed, the Trial Court found Trustee’s family used the Cabin a substantial
portion of the time. See Original Op. at 21; R.R. at 475a-76a. Also, Trustee rented the
entire dwelling for use by a single housekeeping unit. See R.R. at 177a-201a (Chart).
Turning to the analysis of “family,” the Trial Court found: “The
individuals who stay at the [Property] meet the definition of ‘family’ set forth in
Section 926 of the Ordinance.” Post-Trial Op. at 9; see also Original Op. at 15 (“the
people who use the [Property] meet the definition of ‘family’ under the Ordinance”).
Notably, the Trial Court ruled “[t]he evidence demonstrates that, whether the people
using it are the family and friends of [Trustee], or are strangers that pay rent, the
[Property] is used by individuals who live independently as a single housekeeping
unit and use cooking facilities and certain rooms in common.” Original Op. at 15.
In so concluding, the Trial Court recognized the “broad definition of ‘family’” under
the Ordinance. See Post-Tr. Op. at 8.
14
Compare Appellants’ Reply Br. at 3 (Trustee’s use is only 10% of the year when
reserved, and available for rent 90% of the year) with Appellee’s Br. at 4 (“The Property in
question is used by the Stellar family approximately 70% of the time.”).
19
The Trial Court’s legal analysis is also sound. As to owner use, it noted:
“The fact that the owner of the [Property] never lives on the [Property], since the
owner is a trust rather than an individual, is an important factor but is not the
controlling factor.” Post-Trial Op. at 8. It also recognized the Ordinance did not
prohibit rental of single-family dwellings or short-term rentals generally. See id. at
9. Thus, its ruling was consistent with the principle that an ordinance shall be
construed to permit the least restrictive use of land. See Adams Outdoor Advert.
We discern no violation of the Ordinance under these facts.15 The Cabin
meets the definition of a “single[-]family detached dwelling,” a permitted use in a
preservation zoning district. Because the Trial Court found the use of the Cabin was
by one single housekeeping unit at a time, and consistent with its design and
occupation as a single-family dwelling, the short-term rentals of the Cabin do not
violate the Ordinance.
To the extent Neighbors argue the record does not support the use by
Trustee’s family and friends for a substantial portion of time, our careful review of
the record shows the Trial Court’s finding in this regard is supported. Testimony by
Trustee and his witnesses reflects that Trustee’s family regularly used the Cabin when
it was not rented. R.R. at 468a-69a, 490a-92a, 514a (“hunting season, I live there . . .
it’s our home away from home”). The record, including exhibits containing details
on the renters, shows the Cabin was rented about one third of the year over a six-year
period. See R.R. at 475a-76a, 484a-86a; Original Record, Item No. 40 (Ex. 9).
15
We do not suggest the facts must be identical to those in Slice of Life II for a short-term
rental use to be incompatible with single-family dwelling use; indeed, such use, when inconsistent
with a zoning plan, may be precluded even when an ordinance is silent as to short-term rentals.
20
Also, as to local enforcement of the Ordinance, the record is clear that
the Township permits other short-term rentals of single-family dwelling units. The
Trial Court admitted testimony over Neighbors’ relevance objection that, at the time,
at least four other single-family dwellings were used for short-term rentals. See R.R.
at 470a-71a. Neighbors simply did not substantiate that short-term rental of a
“Dwelling unit – single[-]family detached” violates the Ordinance.
Under our highly deferential review of the order, when the Trial Court
served as the fact-finder under Section 617 of the MPC, and the record supports its
findings that the occupants of the Cabin qualified as a “Family,” we discern no error.
V. Conclusion
In sum, Slice of Life II offers no cause to alter our initial disposition
affirming the Trial Court’s order in Trustee’s favor. Slice of Life II reflects that the
zoning context remains critical, as is a locality’s determination of whether such use
constitutes a violation. Aside from the material differences in facts and ordinance
language, the rationale in Slice of Life II is inseparable from the zoning context, i.e.,
location of short-term rental use in a residential zone where retaining the residential
character of a community is key. Applying the lessons from Slice of Life II to these
circumstances, and based on our legal analysis of the Ordinance, we affirm the Trial
Court’s order determining that Trustee’s short-term rental use of the Cabin did not
constitute a violation of the Ordinance to afford injunctive relief under the MPC.
_________________________________
J. ANDREW CROMPTON, Judge
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cheri Ann Leinberger, Matthew S. :
Leinberger,Daniel P. Seneca, :
Kathleen A. Seneca and :
William J. Necker, :
Appellants :
:
v. : No. 1620 C.D. 2017
:
Anthony G. Stellar, as Trustee :
of the Deborah E. Stellar :
Revocable Trust :
ORDER
AND NOW, this 25th day of September 2020, the order of the Lehigh
County Court of Common Pleas is AFFIRMED.
_________________________________
J. ANDREW CROMPTON, Judge