The Legal Intelligencer
(by Krista-Ann Staley and Jenn Malik)
On April 26, the Pennsylvania Supreme Court announced its opinion in Slice of Life v. Hamilton Township Zoning Hearing Board, No. 7 MAP 2018 (Pa. 2019), addressing the permissibility of short-term vacation rentals in residential zoning districts. Specifically, the Supreme Court addressed “whether a zoning ordinance that defines ‘family’ as requiring ‘a single housekeeping unit’ permits the purely transient use of property located in a residential zoning district.”
The Slice of Life litigation arose from a notice of zoning violation issued to the owner of a short-term rental property, a limited liability company whose only member resided in Brooklyn, New York. The owner operated several other properties as short-term vacation rentals. The property in question in Slice of Life operated solely as a short-term vacation rental and was located in Hamilton Township’s single-family residential zoning district. The zoning district only permitted “single family detached dwellings and accessory uses and essential services.” The applicable provisions of the township’s zoning ordinance are as follows:
- “Dwelling” is defined as a building on a lot intended for and occupied exclusively as a residence for one family and specifically excludes hotels, motels, rooming houses or other tourist homes.
- “Family” is defined as a “single housekeeping unit.”
- “Single family housekeeping unit,” “rooming house” and “tourist home” are undefined by the zoning ordinance.
The subject property is a six-bedroom house that sleeps up to 17 people. One individual is responsible for signing the lease; however, no one associated with the property rental made any effort to ascertain the relationship between the individuals occupying the property. The rental company responsible for handling reservations collects no information concerning additional guests. Within 36 hours after a guest departs the property, a cleaning crew arrives to clean the property and fix anything that’s broken.
The property was the subject of numerous complaints from neighbors—in particular, noise complaints, complaints about the use of fireworks and bonfires, and complaints concerning public urination, loud music, nudity and lewd contact. In addition, the property’s septic system was inadequate to accommodate the number of people routinely utilizing the property.
In response, the township’s zoning officer issued a notice of violation identifying the owner’s short-term rental use as a “hotel or other type[s] of transient lodging, rental of single family residential dwelling for transient tenancies,” a use that was not permitted on the residentially zoned property. The property owner appealed the notice of violation. The issue was whether the property’s use as a short-term vacation rental was more consistent with a permitted residential use or a prohibited lodging use. The township zoning hearing board upheld the notice, finding that the subject property was “part of a transient lodging business enterprise” typical of a hotel or a motel and the trial court affirmed.
On appeal, the Commonwealth Court reversed, focusing its analysis on the plain language of the zoning ordinance and noting that a zoning hearing board is bound by the ordinance as-written and cannot attempt to amend the ordinance by shoe-horning a new use into an existing defined term, see Slice of Life v. Hamilton Township Zoning Hearing Board, 164 A.3d 633 (Pa. Cmwlth. 2017). Specifically, the Commonwealth Court held that the evidence established that the individual who signed the short-term lease for the property was the “family” for purposes of the ordinance and any remaining individuals were “guests” of the “family,” Finding that the ordinance did not prohibit the cited rental, the court overturned the notice of violation.
The Pennsylvania Supreme Court reversed the decision of the Commonwealth Court, holding that “the purely transient use of a house is not a permitted use in a residential zoning district limiting use to single-family homes by ‘a single housekeeping unit.’” Focusing its analysis on the undefined “single housekeeping unit” in the township’s zoning ordinance, the court adopted the common definition used by other courts throughout the country, which requires the person or persons residing in the home to function as a family and to be sufficiently stable and permanent and not purely transient. Citing its opinion in Albert, the court stated “the very benefit of and purpose behind the creation of residential zoning districts was to ‘create residential neighborhoods in which the residents may develop a sense of community and a shared commitment to the common good of that community’… In the absence of ‘stability and permanence’ of the individuals residing in those districts, ‘the goal is necessarily subverted.’” See Albert v. Zoning Hearing Board of North Abington Township, 854 A.2d 401 (Pa. 2004). The court held that by defining a “family” as a “single housekeeping unit,” the zoning ordinance excluded purely transient uses such as a short-term vacation rental.
Following Slice of Life, many municipalities may examine their zoning ordinances and maps to determine whether to limit the location of short-term vacation rentals to certain zoning districts within their boundaries. Factors to be considered when deciding where to permit short-term vacation rental uses within a municipality include potential increases in noise, the number of visitors occupying a limited space, and traffic, and the necessity for more parking associated with the use. It may be advisable to require a property owner who wishes to use her property as a short-term vacation rental to obtain conditional use or special exception approval from the appropriate governing body. Conditional use or special exception approval, as opposed to permitting the use by-right, would require the applicant to demonstrate compliance with enumerated criteria that are specific to short-term vacation rental use. (Permitting short-term vacation rentals as a use by-right would only require the applicant to obtain a zoning permit from the zoning officer and would not require public notice or a public hearing as mandated under the Municipalities Planning Code).
Before considering performance standards or criteria regulating short-term vacation rentals, municipalities should review their existing regulations and determine whether is necessary to distinguish short-term vacation rentals from other existing uses permitted by the applicable zoning ordinance. Specifically, short-term vacation rental uses can be quite similar to hotels, bed and breakfasts, and single-family dwellings (as was the case in Slice of Life). Defining “hotel,” “bed and breakfast” and “short-term vacation rental” to differentiate between the uses can be quite challenging; however, the municipality’s failure to do so may result in unexpected short-term vacation rentals in districts ill-equipped to handle the use.
Once the use is defined to meet the municipality’s needs, the municipality should consider potential standards and criteria that could apply to the use. Standards applicable to short-term vacation rental use could include those that regulate noise, signage, vibration, smoke, dust, electrical disturbance, odors, heat or glare. Ordinances can also require applicants to demonstrate that they can provide adequate off-street parking, given that short-term rentals often require additional parking for patrons. General requirements that the use will not cause an increase in the use of water, sewage, garbage, public safety or any other municipal services beyond that which is normal for the residences in the neighborhood is advisable. The municipality may also want to consider having the applicant demonstrate that the short-term vacation rental use will not significantly increase vehicular and pedestrian traffic.
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