C.A. Leinberger v. A.G. Stellar, as Trustee of the D.E. Stellar Revocable Trust

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