Posted by: Patricia Salkin | October 18, 2016

PA Appeals Court Finds Zoning Board Erred in Concluding that Short-Term Rentals of Property Were Prohibited in R-1 District and Not Consistent with the Single-Family Dwelling Use

Tatiana Marchenko owned a single-family dwelling located at 122 Nicholl Lane in the Township’s R–1 Low Density Residential Zoning District. Michael Tripus, the Township’s zoning officer, issued Marchenko a Notice due to Marchenko’s use of the Property for commercial purposes, vacation rentals, in violation of section 402 of the Pocono Township Zoning Ordinance. The ZHB denied Marchenko’s appeal of a notice of violation, and the trial court affirmed.

Marchenko used the Property as her primary residence, resided at the Property a majority of the time, and was the only family occupying the Property when she resided there. 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, was prohibited in the R-1 District. However, the Ordinance’s definition of “single-family dwelling” did not prohibit this type of rental activity, nor was the rental activity encompassed by any other use defined by the Ordinance. Under these circumstances, the court found 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 did not define. Therefore, the ZHB erred in concluding that Marchenko’s short-term rentals of the Property were prohibited in the R-1 District.

Next, Marchenko argued that the ZHB erred in concluding that her short-term rentals of the Property constituted use as a lodge, which was not permitted in the R-1 District. Here, the ZHB concluded that three definitions of “lodge” in the Merriam-Webster Online Dictionary accurately described Marchenko’s rentals of the Property. The Ordinance used the term “lodge” as a noun, citing it as an example of a transient dwelling accommodation. 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,” was inapplicable, because the ZHB did not find that Marchenko’s renters use the Property as a base for outdoor activities. Additionally, this definition indicated that providing short-term accommodations was the purpose of a lodge. Instead, Marchenko used the Property as her primary residence and rented it out a minority of the time in order to defray her housing expenses. Therefore, the court reversed, finding the ZHB erred in concluding that Marchenko’s short-term rentals of the Property constituted use as a lodge.

Marchenko v. Zoning Hrg. Bd. of Pocono Township, 2021 C.D. 2015, 2016 WL 4978459 (Pa. Cmmw. 9/19/2016)


Responses

  1. Regulation – or more accurately, the LACK of existing regulation – of “vacation rentals” or “transient accommodations” is breaking out as one of the biggest zoning issues in this current, adolescent-like development stage of internet commerce and info exchange. Particularly so in rural and attractive portions of suburbia across our nation. 10 – 20 years ago it was cell tower placements; now, it’s vacation rentals in residential-like areas.

    It’s a classic case of the “Tragedy of the Commons” at work; individual sell-outs of the neighborliness of a neighborhood in return for individual gain at the group expense of having a nice neighborhood, resulting in the gradual erosion of character and social bonds (however casual, they are still “seams of certainty” from neighbor to neighbor) throughout that neighborhood. It will continue until a nice neighborhood looks and feels like a low density resort, maybe 15 – 20 years from today. UNLESS municipalities act quickly to amend their zoning ordinances to pre-empt this from spreading.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Categories

%d bloggers like this: