Posted by: Patricia Salkin | April 16, 2019

PA Appeals Court Reverses Airbnb Zoning Violation Due to Ambiguous Zoning Definitions

This post was authored by Amy Lavine, Esq.

A Pennsylvania court held in April that a property owner was improperly cited in a zoning enforcement action for using his home as an “Airbnb rooming house.” The court emphasized that the ordinance didn’t specifically define or regulate Airbnbs, and in the absence of any unambiguous restrictions, the zoning ordinance should have been interpreted in the property owner’s favor.
Samar owned a nonconforming single-family dwelling in a commercial district and was issued an enforcement citation for renting his home as an Airbnb, which was an unlawful use in the commercial zone. Although the single-family residence was a valid nonconforming use, the zoning board concluded that the property was impermissibly expanded into a two-family “Airbnb rooming house” due to the addition of a second kitchen and the separation of the dwelling into two units. The zoning board also denied Samar’s request for a special exception because the property failed to meet the lot size requirements for two-family dwellings. With respect to his use variance request, the board determined that he failed to meet the necessary criteria for proving undue hardship.
The court reversed on appeal and held that the zoning board acted unreasonably in classifying Samar’s home as an illegal rooming house. In the absence of any specific regulations on “Airbnb” uses, it found that “Landowner’s use of his property as an Airbnb simply did not violate the Zoning Code in effect at the time of the purported violation.” The court noted in particular that “dwellings” and “rooming houses” were defined under the ordinance in such as manner as to be mutually exclusive, and thus “a dwelling cannot be a rooming house and a rooming house cannot be a dwelling under the Zoning Code.” This was an extremely literal interpretation and, to a certain extent, seemed to ignore both the plain meaning and ordinance’s intent, but the court nevertheless chose to emphasize the canon of construction calling for restrictions on property to be interpreted in favor of the landowner. This was particularly appropriate in this case, the court noted, where the lack of any specific “Airbnb” provisions resulted in an ambiguity under the zoning ordinance. The court also emphasized that Airbnbs have expanded the inherent uses of single-family dwellings and it cautioned that zoning board’s shouldn’t “shoe-horn a new, unanticipated use, particularly for a new form of economic activity occurring in a single-family home, into an existing defined term of a local zoning ordinance.”
On the issue of Samar’s request for a special exception, the court agreed with the zoning board that Samar failed to establish compliance with the ordinance’s criteria for conversion of a single-family dwelling into a two-family or multi-family dwelling. In particular, one of the criteria for this sort of conversion was that the property had to be twice the size of the minimum lot area, and Samar’s property was barely even half the size required in the commercial zone. The court also emphasized that Samar hadn’t requested a dimensional variance, which might have cured this substandard lot problem, nor had he submitted sufficient plans for parking and storage areas, as required under the residential conversion regulations.
The court also affirmed the zoning board’s denial of Samar’s application for a use variance, finding that Samar “failed to offer any testimony relating to a hardship, let alone the unnecessary hardship required for a variance.” Because Samar admitted to adding the second kitchen and renting out a separate unit within the house without obtaining the required permits, the court also found that whatever hardship he had was self-created. Moreover, there was no evidence that continued use of the property as a single-family dwelling would be economically unfeasible.

Samar v Zoning Board of Upper Merion Township, 2019 WL 1749038 (PA Cmwlth 4/16/2019).

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