G.A. Reihner and J.A. Reihner v. The City of Scranton ZHB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

George A. Reihner and :

Judith A. Reihner, his wife, :

:

Appellants :

: No. 256 C.D. 2017

v. : Argued: September 11, 2017

:

The City of Scranton Zoning :

Hearing Board :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY

SENIOR JUDGE COLINS FILED: December 8, 2017

George and Judith Reihner appeal from an order of the Court of

Common Pleas of Lackawanna County that affirmed a decision of the City of

Scranton (City) Zoning Hearing Board (Board). In its decision, the Board denied

the Reihners’ appeal of a Notice of Violation (NOV) issued by the City’s Zoning

Code Enforcement Officer for illegal operation of a Bed and Breakfast (B&B) at the

Reihners’ home in violation of the City’s Zoning Ordinance (Ordinance). We

conclude that the Reihners have demonstrated that ambiguity exists in the definition

of “Bed and Breakfast Use” in the Ordinance such that we must interpret the

language of the Ordinance in favor of the landowners. We therefore reverse the

order of the Court of Common Pleas.

The Reihners are husband and wife who own and reside in a single-

family home located at 1010 Electric Avenue in the City (Property), which is in the

R-1A district, the “Medium Low Density Residential District.” (Board Decision

Finding of Fact (F.F.) ¶3; Ordinance § 301.A, Reproduced Record (R.R.) 228a.) The

R-1A district permits various residential uses, including Single Family Detached and

Semi-Detached Dwellings and Group Homes, and certain agricultural and

commercial uses, but does not permit the “Bed and Breakfast Use.” (Ordinance §

306 (Table of Permitted Uses).) The “Bed and Breakfast Use” is defined in Section

202 of the Ordinance as follows:

The use of a single family detached dwelling and/or

accessory structure which includes the rental of overnight

sleeping accommodations and bathroom access for a

maximum of 10 temporary guests at any one time (except

as otherwise provided for in this Ordinance), and which

does not provide any cooking facilities or provision of

meals for guests other than breakfast. This use shall only

include a use renting facilities for a maximum of 14

consecutive days to any person(s) and shall be restricted

to transient visitors of the area.

(Ordinance § 202, R.R. 201a.)

On or about May 18, 2016, Jack Sweeney, the Zoning Code

Enforcement Officer, issued the NOV to the Reihners following the receipt of

complaints from several of the Reihners’ neighbors. (Board Decision F.F. ¶1; Aug.

10, 2016 Board Hearing Transcript (H.T.) at 26-27, R.R. 34a-35a; Joint Ex. 1, R.R.

141a.) The NOV stated that the Reihners were operating a B&B in the R-1A district

in violation of Section 306 of the Ordinance and they were required to eliminate the

offending activity within ten days of receipt of the order. (Joint Ex. 1, R.R. 141a.)

The Reihners promptly appealed the NOV, and a hearing was held before the Board

on August 10, 2016. At the hearing, Sweeney testified that he spoke to the Reihners

after receiving the complaints and they admitted that they were receiving guests at

2

their house who had booked through the Airbnb website,1 but they maintained that

they were not offering breakfast to the guests. (H.T. at 26-27, R.R. 34a-35a.)

Judith Reihner testified that she and her husband, along with the

youngest of their four children, live in a three-story Victorian house on the Property.

(H.T. at 36, R.R. 44a.) Mrs. Reihner testified that she started using Airbnb for

lodging when visiting her son while he attended Stanford University and continued

using it for her visits to California over the course of several years. (Id. at 38-39,

R.R 46a-47a.) After renovating the third floor of their house, the Reihners began

offering rooms for rent on Airbnb in March 2016. (Id. at 39-40, R.R. 47a-48a.) The

Reihners offer three bedrooms on the third floor for rent through Airbnb; the third

floor has three bedrooms and one shared bathroom with a door separating the second

and third floors that can be closed to offer privacy. (Id. at 36-37, 53, R.R. 44a-45a,

61a.) The Reihners also occasionally offer one bedroom for rent on the second floor

to return guests whom they already know well. (Id. at 53, R.R. 61a.) All bedrooms

are offered for a maximum four-night stay. (Id. at 72, R.R. 80a.) Mrs. Reihner stated

that she does not serve food and she does not consider her home to be a B&B. (Id.

at 63-64, 80, R.R. 71a-72a, 88a.) Mrs. Reihner testified that an occupancy tax is

deducted from each one of her guests’ bills and is remitted directly to the

Commonwealth pursuant to a policy that went into effect on July 1, 2016. (Id. at 51-

52, R.R. 59a-60a; Appellants Ex. 3, R.R. 148a.) Mrs. Reihner testified that the City

has not enacted a tax applicable to Airbnb stays and therefore she does not pay a tax

to the city, nor has she registered with Lackawanna County as a hotel. (H.T. at 53-

54, 86-87, R.R. 61a-62a, 94a-95a.)

1

https://www.airbnb.com (last visited, October 11, 2017).

3

At the hearing, several neighbors, including members of the Greenridge

Neighborhood Association (Greenridge), which intervened below and filed a brief

in this appeal, testified in opposition to the Reihners’ use of the Property as an

Airbnb establishment. The neighbors cited concerns related to the presence of

strangers in the neighborhood, parking in front of neighbors’ houses, a potential

reduction in the value of nearby homes, and the safety of the children who play in

the neighborhood. (H.T. at 90-127, R.R. 98a-135a.)

At the conclusion of the hearing, the Board voted to uphold the NOV.

In an undated decision, the Board stated its conclusion that “the activities described

by Judith Reihner as to what was taking place at her house through AIRBNB fit the

Ordinance definition of a Bed and Breakfast Use.” (Board Decision, Conclusion of

Law ¶17.) The Reihners appealed the Board’s decision to the Court of Common

Pleas, which heard the appeal without taking additional evidence. The lower court

determined that the testimony that the Reihners use their single-family dwelling to

rent accommodations to overnight guests for a maximum four-night stay clearly

meets the definition of a “Bed and Breakfast Use.” (Court of Common Pleas

Opinion at 4-5.) Though the testimony was uncontroverted that the Reihners do not

offer breakfast at their house, the lower court concluded that there is no requirement

in the Ordinance that breakfast be served and instead the definition of “Bed and

Breakfast Use” states only that no other meal can be provided besides breakfast. (Id.

at 4.)

Where, as here, the trial court has not taken additional evidence, this

Court’s scope of review is limited to determining whether the zoning hearing board

committed an error of law or abused its discretion. Larsen v. Zoning Board of

Adjustment of the City of Pittsburgh, 672 A.2d 286, 288-89 (Pa. 1996); Nowicki v.

4

Zoning Hearing Board of Borough of Monaca, 91 A.3d 287, 291 n.1 (Pa. Cmwlth.

2014). When construing local zoning ordinances, courts are guided by the principles

of the Statutory Construction Act of 1972, 1 Pa. C.S. §§ 1501-1991, which provides

that “[w]ords and phrases shall be construed according to rules of grammar and

according to their common and approved usage.” Patricca v. Zoning Board of

Adjustment of the City of Pittsburgh, 590 A.2d 744, 747-48 (Pa. 1991) (citing 1 Pa.

C.S. § 1903(a)).

The traditional rule of deference to zoning hearing board interpretations

of their ordinances, however, is balanced by the principle that any ambiguity and

conflict in the language of the ordinance must be resolved in favor of the landowner

and the least restrictive use of the land. Latimore Township v. Latimore Township

Zoning Hearing Board, 58 A.3d 883, 888 (Pa. Cmwlth. 2013); see also Section

603.1 of the Municipalities Planning Code, Act of July 31, 1968, P.L. 805, added by

the Act of Dec. 21, 1988, P.L. 1329, 53 P.S. § 10603.1 (“In 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 and against any implied extension of the restriction.”). Moreover,

“[w]hile the legislative intent of the governing body which enacted the ordinance is

of primary concern when interpreting a zoning ordinance, the letter of the ordinance

is not to be disregarded under the pretext of pursuing its spirit.” Borough of

Fleetwood v. Zoning Hearing Board of the Borough of Fleetwood, 649 A.2d 651,

656 (Pa. 1994); see also Riverfront Development Group, LLC v. City of Harrisburg

Zoning Hearing Board, 109 A.3d 358, 366 (Pa. Cmwlth. 2015). This Court has held

that it is an abuse of discretion for a zoning hearing board to narrow the terms of an

5

ordinance and further restrict the use of a property. Riverfront Development Group,

109 A.3d at 366; Church of the Saviour v. Tredyffrin Township Zoning Hearing

Board, 568 A.2d 1336, 1338 (Pa. Cmwlth. 1989).

The Reihners argue that the Board and the Court of Common Pleas

determined that the Reihners operate a B&B simply based on the name of the Airbnb

website.2 The Reihners argue that the lower tribunals ignored the language in the

definition that the establishment “does not provide any cooking facilities or

provision of meals for guests other than breakfast.” (Ordinance § 202, R.R. 201a.)

The Reihners contend that the holding by the Court of Common Pleas that the

Ordinance does not require that breakfast be served to fall under the “Bed and

Breakfast Use” definition ignores the conjunctive “and” in “Bed and Breakfast Use”

which signifies that the two nouns “bed” and “breakfast” must both be present in

order for an establishment to be considered a B&B. The Reihners assert that their

guests had access to their kitchen to prepare any meal or snack at any time of day

and that the Reihners did not prepare breakfast, or any other meal, for their guests.

Because they did not serve breakfast and instead offered cooking facilities to their

guests throughout the day, the Reihners maintain that they did not engage in a “Bed

and Breakfast Use” on their Property and therefore the NOV was issued in error.

The Board argues that the Reihners’ interpretation of the Ordinance to

require that the purveyor of a B&B serve breakfast is contrary to the definition of a

“Bed and Breakfast Use” which does not mandate that breakfast is served to guests

and instead only permits the service of breakfast but not any other meals. The Board

further disputes the Reihners’ argument that it is not a B&B under the Ordinance,

2

The original name of the company was “AirBed & Breakfast.” Walter Isaacson, Resistance is

Futile, New York Times, June 25, 2017, at BR1.

6

contending that the fact that rooms are booked through the Airbnb website shows

that the Property is a B&B since Airbnb website was designed to market B&Bs.

As noted in the parties’ briefs, this Court has ruled in several recent

decisions that a zoning hearing board misconstrued the terms of its zoning ordinance

to prohibit property owners from using online platforms to offer their homes as

vacation or short-term rentals. In Marchenko v. Zoning Hearing Board of Pocono

Township, 147 A.3d 947 (Pa. Cmwlth. 2016), the owner of a single-family dwelling

in a low density residential district offered her entire home for rent on the

HomeAway website3; during the rental periods, which constituted 71 of the first 185

days that the house was listed on the website, the owner would stay at a friend’s

house in New Jersey. 147 A.3d at 948-49; id. at 952 (Pelligrini, J., dissenting). The

zoning hearing board found that the house was being used for commercial purposes

as a “lodge” in violation of the zoning ordinance. Id. at 949. This Court held that

the primary use of the property was as a single-family residence for the owner, and

the ordinance’s definition of “single-family residence” did not prohibit the type of

rental activity on the property. Id. at 950. As the zoning ordinance did not prohibit

short-term rentals in the definition of single-family dwelling and the property did

not satisfy the dictionary definition of a “lodge,” which required that the purpose of

the lodge was as a base for outdoor activities, the Court reversed the notice of

violation. Id. at 950-51.

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

(Pa. Cmwlth. 2017), the property owner bought a single-family home with the

intention of using it as a primary residence but was unable to because she could not

sell her other house; other than the approximately one week per month that the owner

3

https://www.homeaway.com (last visited October 11, 2017).

7

stayed at the house and visits by other family members, she offered out the entire

house for rent through websites for minimum stays of two nights. 154 A.3d at 410-

11. The zoning hearing board determined that the property was a “tourist home”

under the zoning ordinance, which was not permitted within the special and

recreational district in which the property was located. Id. at 411. This Court held

that the property was not being used as a “tourist home,” defined to include rentals

of individual rooms on a nightly basis, because the owner was periodically renting

out the entire home, which “bears no relation to the bedroom-by-bedroom rental that

is the hallmark of the tourist home.” Id. at 414-15. The Court explained that

AirBnB has expanded the possible uses of a single-family

dwelling, and the Township can address these new uses in

the Zoning Ordinance. However, amendments cannot be

effected by shoe-horning a use that involves renting an

entire single-family home to vacationers into the definition

of “tourist home.”

Id. at 415. Furthermore, the Court concluded that the property fell within the

definition of a “single-family dwelling” of “a detached building designed for or

occupied exclusively by one family” – though the property was not exclusively

occupied by one family, the property did satisfy the alternative condition of having

been designed for one family. Id. Thus, the Court reversed the zoning hearing

board’s affirmance of the enforcement notice against the property owner.

In Slice of Life, LLC v. Hamilton Township Zoning Hearing Board, 164

A.3d 633 (Pa. Cmwlth. 2017), the property owner, who lived in New York City,

owned the subject property through a limited liability company and rented the

property for short-term stays as part of a larger business enterprise involving

multiple other properties. Id. at 635, 641. The property was located in a zoning

district that only permitted single-family residential uses, and the property owner

8

was issued an enforcement notice for use of the property as a “Hotel and/or other

types of transient lodging, Rental of Single Family Residential Dwelling for transient

tenancies.” Id. at 635-37. The “hotel” use was defined in the ordinance but was

ruled inapplicable because it required that at least ten rooms were offered for rent

and the property only contained six rooms, while the terms “transient lodging” and

“transient tenancies” were undefined in the ordinance. Id. at 637, 640, 642. This

Court followed the “controlling law” of Shvekh and Marchenko, and the bar on

zoning hearing boards “shoe-horning” a new, unanticipated use into an existing

defined term of the ordinance, stating that “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.” Id. at 641-42

(quoting Shvekh, 154 A.3d at 415) (emphasis in original). Because the property

owner demonstrated that ambiguity existed in the language of the ordinance, the

Court concluded that it was required to interpret the language of the ordinance in

favor of the landowner and against any implied extension of a restriction on the use

of the landowner’s property. Id. at 642.

This case is factually distinguishable from Marchenko, Shvekh and

Slice of Life. In those three cases, the property owners rented out the entirety of their

home, either during periods when they were not present at the house or exclusively

as in Slice of Life, while here the Reihners continually reside in their home during

Airbnb guest stays. Furthermore, unlike Marchenko, Shvekh and Slice of Life, only

the present matter before this Court presents the issue of whether the property owners

have engaged in a “Bed and Breakfast Use.” Nevertheless, the controlling law in

this trio of cases also applies here. Like the present case, each of Marchenko, Shvekh

and Slice of Life concerns an attempt by a zoning hearing board to apply the zoning

9

ordinance to a new form of economic activity occurring in single-family homes that

was facilitated and expanded by internet services like Airbnb. However, in each of

those cases, this Court ruled that the zoning board overstepped its authority under its

ordinance, “advance[ing] a new and strained interpretation of its zoning ordinance

in order to effect what it would like the ordinance to say,” “shoe-horning” the use in

question into an unsuitable existing category of uses in the ordinance. Shvekh, 154

A.3d at 414-15.

Our review of the present case accordingly requires that we determine

whether the Ordinance unambiguously prohibits the type of rental activity occurring

on the Property that would allow the City to constrain the Reihners’ use of their

Property. We conclude that it does not. Pursuant to the definition of a “Bed and

Breakfast Use” in the Ordinance it is clear that the Property is a single-family

dwelling in which the Reihners rent out rooms, with bathroom access, to no more

than 10 overnight guests at a time. Therefore, the sole question is whether the

Reihners’ use of the Property satisfies the remaining requirement of the “Bed and

Breakfast Use” that the Property “does not provide any cooking facilities or

provision of meals for guests other than breakfast.” (Ordinance § 202, R.R. 201a.)

The Reihners assert that this statement means that the establishment must provide

either breakfast or access to cooking facilities at which the guest can prepare her

own breakfast. The Board argues that the interpretation of this definition by the

Court of Common Pleas is correct that a “Bed and Breakfast Use” does not require

service of breakfast or access to cooking facilities to prepare breakfast, but instead

only prohibits the purveyor of a B&B from serving any other meal besides breakfast.

We conclude that the Reihners’ interpretation of the Ordinance is more reasonable

than that of the Board. Quite simply, the Court of Common Pleas reads the term

10

“breakfast” out of the Ordinance. Moreover, we disagree with the argument by the

Board that the Reihners’ use of a website called “Airbnb” supports the case that they

were operating a B&B. As this Court explained in Shvekh, Airbnb and similar

“sharing economy” websites have expanded the possible uses of a single-family

dwelling and have created new types of economic activity that bear similarities to

but do not entirely fit within traditional categories of lodging uses set forth in zoning

ordinances. Furthermore, Mrs. Reihner testified at the Board hearing that Airbnb is

different than a normal hotel or lodging reservation website that does not permit

anonymous listings but instead requires that each user is verified by Airbnb with

driver’s license, passports, credit cards or other identifying documents. (H.T. at 41-

42, 67-68, R.R. 49a-50a, 75a-76a; Appellants Ex. 1, R.R. 142a.) In addition, Mrs.

Reihner explained that Airbnb users have created a welcoming community focused

on “building relationships” and “exchange,” established on a “system of trust” and

reinforced by the reviews that guests and hosts leave for each other on the website.

(H.T. at 39, 41-42, 84, R.R. 47a, 49a-50a, 92a.)

Because the Reihners have proven that ambiguity exists in the language

in the Ordinance, we are required to interpret the language of the Ordinance in favor

of the landowner’s “widest use of the land” and against any implied extension of the

Ordinance’s restrictions on the use of property based on the policy preferences of

the Board. Fidler v. Zoning Board of Adjustment of Upper Macungie Township, 182

A.2d 692, 695 (Pa. 1962); see also Slice of Life, 164 A.3d at 640. The record is

devoid of any indication that the Reihners served breakfast to any of their guests or

did not provide cooking facilities for them to prepare their own breakfast and

therefore we must conclude that the NOV alleging that the Reihners operated an

illegal B&B was issued in error. Despite our ruling here, we note that the City may,

11

through its legislative authority, fill in the gap in the Ordinance to address the

complained of activity occurring on the Reihners’ property. As the Court cautioned

in Slice of Life, “there is nothing to constrain the [City] from enacting amendments

to the Ordinance which would protect property owners’ constitutional rights while

providing the specific definitional guidelines where they are now lacking.” 164 A.3d

at 646.

The Board and Greenridge present several additional arguments in this

appeal to support the validity of the NOV apart from the conclusion that the Reihners

were operating a B&B under the Ordinance. The Board argues that, even accepting

that Airbnb rental does not qualify as operation of a B&B, the Reihners would still

be operating a prohibited use in the R-1A district pursuant to Section 105.B of the

Ordinance, which provides:

If a use clearly is not permitted by right, by condition or

by special exception by this Ordinance within any Zoning

District in the City, the use is prohibited in the City, except

the applicant may apply to the Zoning Hearing Board [for

a permit to engage in such use].

(Ordinance § 105.B (emphasis in original).) Greenridge argues that the Reihners’

rental of rooms through Airbnb is an economic activity which is an “incompatible

intrusion[]” in a desirable residential neighborhood of the City, contrary to the stated

purposes and objectives of the Ordinance.4 Greenridge further argues that the use of

the Property as an Airbnb does not fall within the definition of a “Single Family

Detached Dwelling” under the Ordinance, which is a permitted use in the R-1A

district, because the Reihners are continually renting out rooms to other individuals

4

Section 101 of the Ordinance provides that “[t]his Ordinance is hereby adopted...to protect

property values and protect existing residential neighborhoods from incompatible intrusions.”

(Ordinance § 101.)

12

who are not a part of their family unit so more than one family resides at the Property

any time a room is rented.5

None of these other provisions of the Ordinance, however, was cited as

being the basis for the NOV, and neither the Board nor the Court of Common Pleas

ruled that the Reihners violated any other portion of the Ordinance except the

prohibition on the operation of a B&B in the R-1A district. Indeed, while there was

discussion at the Board hearing regarding whether the Reihners would be permitted

under the Ordinance to rent out rooms as a lodging house for up-to-four students at

a nearby university as some other residents in the neighborhood have done, the City

Solicitor made clear that the only issue to be addressed at the hearing was whether

the activities occurring at the Property qualified it as a B&B under the Ordinance.

(H.T. at 55-57, 77-78, R.R. 63a-65a, 85a-86a.) Accordingly, the additional

arguments made by the Board and Greenridge are outside of the scope of this appeal.

The order of the Court of Common Pleas is reversed.

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge

5

A “Single Family Detached Dwelling” is defined as “[o]ne dwelling unit in 1 building

accommodating only 1 family and having open areas on all sides.” (Ordinance § 202, R.R. 206a.)

A “Family” is defined as “[o]ne or more persons living in a single dwelling unit and functioning

as a common household unit sharing household expenses and sharing joint use of the entire

dwelling unit... A family shall not include more than 4 persons who are not ‘related’ to each

other....” (Id., R.R. 207a.)

13

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

George A. Reihner and :

Judith A. Reihner, his wife, :

:

Appellants : No. 256 C.D. 2017

:

v. :

:

The City of Scranton Zoning :

Hearing Board :

ORDER

AND NOW, this 8th day of December, 2017, the order of the Court of

Common Pleas of Lackawanna County is hereby REVERSED.

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge