Slice of Life, LLC and v. Kleyman v. Hamilton Twp. ZHB and Hamilton Twp.

164 A.3d 633, 2017 WL 2664815, 2017 Pa. Commw. LEXIS 375
CourtCommonwealth Court of Pennsylvania
DecidedJune 21, 2017
DocketSlice of Life, LLC and v. Kleyman v. Hamilton Twp. ZHB and Hamilton Twp. - 941 C.D. 2016
StatusPublished
Cited by11 cases

This text of 164 A.3d 633 (Slice of Life, LLC and v. Kleyman v. Hamilton Twp. ZHB and Hamilton Twp.) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Slice of Life, LLC and v. Kleyman v. Hamilton Twp. ZHB and Hamilton Twp., 164 A.3d 633, 2017 WL 2664815, 2017 Pa. Commw. LEXIS 375 (Pa. Ct. App. 2017).

Opinions

OPINION BY

JUDGE COSGROVE

Slice of Life, LLC and Val Kleyman (Appellants) appeal from an Order of-the Court of Common Pleas of Monroe County (Trial Court), which upheld the decision of the Hamilton Township (Township) Zoning Hearing Board (Board or Appellees). The Board’s decision denied Appellants’ land use request with respect to the use of a single-family dwelling as part of a transient lodging business. Upon review, we reverse. ’

I. Background

Appellants own a property located at 473 Pensyl Creek Road, Stroudsburg, Pennsylvania, 18360, Monroe County PIN No. # 07-6279-02-13-7188 (Property). (R.R. 1112a.) Slice of Life, LLC is a limited liability company formed, organized, and existing under the laws of the Commonwealth of Pennsylvania and is the record-owner of the Property; Val Kleyman is the sole member of Slice5of Life, LLC and resides in Brooklyn, New York. (R.R. at 483a.) - :

On May 22, 2014, the Township Zoning Officer (Zoning Officer) issued an Enforcement Notice to Appellants charging them with violations of Article IV, Section 402.1 of the Township Zoning Ordinance (Ordinance) with respect to the'Property. The Enforcement Notice charged Appellants with “[u]se of [the Property] as Hotel and/or other types of transient lodging, Rental of Single Family Residential Dwelling for transient tenancies.” The Enforcement Notice required Appellants to cease this activity by May 31, 2014. (Tr. Ct. Op., 4/20/16 at 2.)

Appellants appealed the Enforcement Notice to the Board, which held- hearings on August 6, September 2, October 7, November 12, and December 9, 2014, as well as on March 31, May 5, and June 2, 2015.1 Id.

On June 12, 2015, the Board issued its decision, denying Appellants’ appeal of the Enforcement Notice. (R.R. at 6a.) Thereafter, on July 1, 2015, Appellants filed their appeal with the Trial Court. Id.

On April 20, ,2016, the Trial Court denied the appeal, thereby affirming the decision of the Board. Id. at 13a. The Court [636]*636found the Board did not abuse its discretion when it upheld the violation under the Enforcement Notice because of the “extensive evidence”2 that “the profit motive is the entire basis for the relationship”3 of the property as a commercial enterprise. Consequently, it found that based upon the totality of the circumstances, Appellants are not operating a single family dwelling, but rather conducting a short-term, transient lodging business, using the Property as part of that business enterprise, with a clear profit motive at the Property. This appeal followed.4

II. Issues

The issues as set forth in Appellants’ brief are:

1. [Did the Trial Court err] in holding that Section 402.1 of the Ordinance does not permit the use of the Property as part of a short-term transient lodging enterprise?
2. [Did the Trial Court err] in holding that: “.. .while this Ordinance has a definition for ‘family,’ the principle behind Albert v. Zoning Hearing Bd. of N. Abington Twp., 578 Pa. 439, 854 A.2d 401 (2004)[”] still applies?
3. [Did the Trial Court err] in holding that “it is clear there is no substantial evidence that Appellants’ use of the Property does not [sic] qualify as a permitted use in that zoning district under the Ordinance?”
4. [Is] the Ordinance unconstitutionally vague because it prohibits Appellants’ use of the Property?
5. Does the Ordinance unconstitutionally exclude the use of a detached single-family dwelling for short-term rental?
6. [Did the Trial Court err] in finding that “there is an identified, protected public interest at issue: the health, safety, and welfare of the public?”
7. [Did the Trial Court err] when if [sic] failed to recognize that the U.S. Constitution is based on individual ownership of land and zoning regulations are in derogation of the common law, and, therefore, are to be strictly construed and interpreted to allow the widest use of land and, as a result the Trial Court’s interpretation of the Ordinance is an unconstitutional taking of real estate?

(Appellants’ Br. at 15-17.)

III. Discussion

A. The Ordinance

To begin, a thorough examination of the relevant parts of the Ordinance is necessary. Article I, Section 103 states, in pertinent part: “Purpose of Ordinance This [Ordinance],.. .was established in accordance with the objectives of the ‘Pennsylvania Municipalities Planning Code’ [ (MPC)5].... ”

Article IV, Section 402.1 further states in part:

[637]*637Permitted Uses (Use Class 1 through 8) “Permitted Uses” listed in Schedule I [of the Ordinance] shall require no special action by the Zoning Hearing Board or by the Planning Commission before a Zoning Permit is granted by the Zoning Officer.
Use Class 1—Single Family Residential Permitted uses include:
(a) Single family detached dwellings

(R.R. at 49a (emphasis in original).)

“Dwelling” is defined in the Ordinance as: “[a] building or structure designed, arranged, intended, or used as the living quarters for one or more families living independantly [sic] of each other upon the premises. The term ‘dwelling’ shall not be construed to include hotel, motel, rooming house or tourist home.” (R.R. at 37a.)

“Family” is defined in the Ordinance as: “[o]ne or more person, occupying a dwelling unit, related by blood, marriage, or adoption, living together as a single housekeeping unit and using cooking facilities and certain rooms in common.” (R.R. at 38a.)

“Hotel” is defined in the Ordinance as: “[a] building designed or used primarily as a temporary abiding place in which lodging is provided for compensation, with or without meals, containing ten (10) or more guest rooms, and having an outside entrance in common.” (R.R. at 40a.)

Schedule I lists the Regulations Governing The Use Of Land6 in the Township based upon zoning districts.7 Id. at 46a. Pursuant to Schedule I, the Property is located in Zoning District “A,” a residential zoning district in which only single-family residential use is permitted.8 Id. at 189a; 646a-647a; Bd. Hr’g, Notes of Testimony (N.T.), 12/9/14, at 364-65.

The terms “single family,” “tourist home,” “transient lodging,” and “transient tenancies” are not defined in the Ordinance.

B. Permitted Use

Based upon the language of the Ordinance, Appellees assert that the use of the Property did not meet any of the permitted uses set forth in Zoning District A. They argue that a “transient lodging business” is not listed as a permitted use in any of the Zoning District A Use Classes. Appellees assert “[Appellants] are collectively conducting a transient lodging business and using the [Property] as part of that business enterprise.” (Appellees’ Br. at 10.)

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164 A.3d 633, 2017 WL 2664815, 2017 Pa. Commw. LEXIS 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/slice-of-life-llc-and-v-kleyman-v-hamilton-twp-zhb-and-hamilton-twp-pacommwct-2017.