          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Slice of Life, LLC and                  :
Val Kleyman,                            :
                   Appellants           :
                                        :
              v.                        :
                                        :
Hamilton Township Zoning Hearing        :   No. 941 C.D. 2016
Board and Hamilton Township             :   Argued: April 20, 2017


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE JOSEPH M. COSGROVE, Judge (P)
              HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION
BY JUDGE COSGROVE                           FILED: June 21, 2017


              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 Slice of 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 found 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

       1
         After the Board conducted the August 6, 2014 hearing, Appellants added a Substantive
Validity Challenge to their appeal on August 11, 2014. The Substantive Validity Challenge
argued that the term “family” as defined in the Ordinance violates the United States and
Pennsylvania Constitutions.
       2
           (Tr. Ct. Op. at 7.)



                                             2
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., 854 A.2d
                 401 (Pa. 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?

       3
           Id.
       4
         “When no additional evidence is taken following the determination of a zoning hearing
board, [this C]ourt's scope of review is limited to determining whether the zoning board
committed an error of law or a manifest abuse of discretion in rendering its decision.” Cottone v.
Zoning Hearing Bd. of Polk Twp., 954 A.2d 1271, 1275 n. 2 (Pa. Cmwlth. 2008). “An abuse of
discretion occurs when the findings are not supported by substantial evidence in the record.
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Coal Gas Recovery, L.P. v. Franklin Twp. Zoning Hearing Bd., 944 A.2d
832, 838 n. 9 (Pa. Cmwlth. 2008) (citation omitted).



                                                3
      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:
               Permitted 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


      5
          Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.



                                               4
                      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



       6
        Schedule I addresses three uses of land in the Township: permitted uses, special uses
and conditional uses. Permitted uses are the only uses at issue in this appeal.
       7
         Pursuant to Section 201 of the Ordinance, a “District” or “Zone” is defined as “[a]
portion of the territory of [the] Township, within which certain regulations and requirements or
various combinations thereof apply under the provisions of this Ordinance.” (R.R. at 46a.)



                                               5
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.)
              Appellees argue this matter is governed and controlled by Albert v.
Zoning Hearing Board of North Abington Township, 854 A.2d 401 (Pa. 2004),
particularly with regard to Appellants’ argument that their use of the Property is
consistent with a single family residential use. The Albert case focused the inquiry
on whether a single-family dwelling could be used as a halfway house for
recovering alcoholics and drug addicts in an R-1 low density residential zoning
district. The court in Albert was forced to examine the meaning of the term
“family” as the term was not defined in the ordinance in question. “In light of
these definitions [contained in the ordinance], the parties and the lower tribunals
agree that whether or not the Retreat qualified as a ‘single-family detached
dwelling’ ultimately turns on the meaning of ‘family’ which the [o]rdinance does

       8
          Single family use is the only permitted use in Zoning District “A” of the Ordinance at
issue in this appeal.



                                               6
not define.” Id. at 404. (Emphasis added.) This ambiguity allowed the court to
examine and incorporate the generally understood meaning of the term “family”
into the zoning ordinance in that case.
             Thus Appellees here assert that Appellants’ use of the Property as part
of a transient lodging enterprise is completely irreconcilable with the notion of a
single family residential zoning district.
             Appellants counter that the Township cannot read unspecified
requirements into the meaning and definition of “family,” which is set forth in the
Ordinance. See JALC Real Estate Corporation and Community Foundation for
Human Development v. Zoning Hearing Board of Lower Salford Twp., 522 A.2d
710, 713 (Pa. Cmwlth. 1987) (where the zoning ordinance provides an operative
definition of what constitutes ‘family,’ that definition controls); see also Mary A.
Reed v. The Zoning Hearing Board of West Deer Township, 377 A.2d 1020 (Pa.
Cmwlth. 1977).
             In Reed, the township suggested a single-family dwelling could be
more strictly interpreted and limited than the plain words of the definition itself.
This Court rejected the township's argument that the definition of “mobile home”
in the ordinance disqualified it from being a single-family detached dwelling,
because the definition did not explicitly describe it as such. In finding for the
property owner, the Court stated:

             Restrictions imposed by zoning ordinances must be strictly
             construed; they may not be construed so as to restrict the use of
             land by implication. The Township here asks us to infer from
             [the ordinance's] definition of a mobile home that a mobile
             home cannot be a single-family dwelling. Even if we were able
             to find support for such an inference in the definition, we could
             not have it prevail over a definition of a single-family dwelling
             [that] clearly include[es] a mobile home. (Emphasis added.)


                                             7
Reed, 377 A.2d at 1021 (citation omitted).
             In the matter before us, no evidence was presented that the guests of
the tenant under the lease were legal occupants or residents of the Property and
thus, part of the tenant’s family. Rather, the record here clearly supports that
guests were just that, simply guests of the tenant/family.

             Q [Atty. Riegel] Now in your [package, the Luxury Stay, LLC
                Welcome to Pensyl Creek packet] you indicate that the –
                that Luxury Stay is not responsible for the guest’s or their
                visitor’s drunk and disorderly behavior. Correct.

             A [Appellant Kleyman] Correct.

             …

             Q     Now in the package you have for tenants when they rent
                   from you, you point out that it does say that [Appellants
                   are] not responsible for the guest’s drunk and disorderly
                   behavior. Are there any other instructions in there about
                   that kind of behavior?

             A     In—that kind of behavior or the other behavior in the
                   assumption of risk?

             Q     Any other behavior in the assumption of risk, both.

             ...

             A The assumption of risk is part of the lease.
             …

             Q      So, the …[a]ssumption of [r]isk, which is the last two
                    pages of Exhibit A-7, is to be signed by the tenant.

             A      Yes.

             Q      …And the tenant is saying in Paragraph 5 [of the lease] –
                    just briefly read Paragraph 5.


                                          8
            A     “I also declare that neither I nor my guests and fellow
                  occupants, if applicable, are under the influence of any
                  chemicals substances…that may impair my mental
                  faculties and sound judgment at the time of the signing of
                  this release or at the time during my guests’ and fellow
                  occupants’ stay at [the Property].

            …

            Q     So...what you believe that says and what I’m hearing is
                  that the tenant is saying they will not be drunk…while
                  they are using your [P]roperty.

            A     Yeah, because if they were and they damaged themselves
                  or they hurt someone else it should be on them not us.

            …

(R.R. at 628a, 631a-634a.)

[Direct examination of neighboring homeowner of Property]

            Q     [Atty. Riegel] Any other items in [the Luxury Stay, LLC
                  Welcome to Pensyl Creek packet of] materials that you
                  wish to bring to the [B]oard’s attention?
            …

            A     [Leopold Zappler] May I read the full disclaimer?
            …

            A     The concern that I have here is that no – it says within the
                  disclaimer “Assuming—”“At all times, guests or in the
                  case of a person of 25 or over, assuming responsibility
                  for the guest by signing this [lease] agreement, but not
                  being present at the [P]roperty is responsible for all and
                  every action of other guests and visitors in and around
                  the [P]roperty.”

                  …

            Q     Any other specific items from the Luxury Stay guest
                  packet that cause you concern?

                                        9
             A     Maximum Occupancy. It specifically says that you may,
                   indeed, bring more than the occupancy limit although
                   [Appellants] must approve it.

(R.R. at 628a, 631a-634a, 722a-724a.)
             Also of relevance here, Appellants argue that the terms “transient
lodging” and “transient tenancies” do not exist in the Ordinance and therefore,
Appellees cannot improperly establish undefined permitted uses. See Borough of
Fleetwood v. Zoning Hearing Board of the Borough of Fleetwood, 649 A.2d 651
(Pa. 1994) (wherein the Pennsylvania Supreme Court held that the letter of the
zoning ordinance is not to be disregarded or ignored under the pretext of pursuing
the spirit); see also JALC Real Estate Corporation.
             Appellants assert the Enforcement Notice cited them for “[u]se of [the
Property] as Hotel and/or other types of transient lodging, Rental of Single Family
Residential Dwelling for transient tenancies.” (R.R. at 257a.) Appellants argue
that the Enforcement Notice improperly established certain uses but refers to terms
for which there is no definition in the Ordinance.
             Thomas J. Shepstone (Shepstone) testified for Appellants as an expert
in the field of planning and zoning:

             Q    [Atty. Higgs] Tom [Shepstone], now, you made the
                  statement that you wouldn’t have recommended the
                  [Enforcement Notice] be sent. In your report there are a
                  number of reasons you give for that position. Could you
                  briefly go through them one at a time?

             A    [Shepstone] Right….I wouldn’t have – I certainly wouldn’t
                  have drafted [the Enforcement Notice] that way, let’s put it
                  that way, because I don’t believe that the basis is there for
                  what is said.



                                         10
                 For example, the [O]rdinance – the [E]nforcement [N]otice
                 says, refers to “use of premises as a hotel and/or types of
                 transient lodging and rental of single family dwellings for
                 transient tenancies,” and I would note…these terms are
                 terms that are defined – some of them are defined in the
                 [O]rdinance….there’s a very specific definition of hotel.
                 That hotel definition requires that you have 10 rooms that
                 you rent – so, [the Property] clearly is not a hotel. That
                 does not require a lawyer interpretation, that is – you
                 know, we put those definitions in for a reason, so that
                 somebody can refer to them and understand. A person
                 coming into a township to do business is entitled to know
                 what things mean and the definition of a hotel in one
                 township may be different than another….

                 Likewise, there is no definition in the [O]rdinance for
                 transient lodging. There is nothing that talks about, that
                 defines transient tenancy, transient lodging. None of those
                 things are defined nor is there a use called rental of single
                 family dwelling for transient tenancy. That’s a use that
                 doesn’t exist….to say that [the Property is] a hotel, when it
                 clearly isn’t, and to say that it’s a use that’s not even
                 defined in the [O]rdinance…that’s not a proper way to go
                 about it.

            Q    I notice in Paragraph B [of Shepstone Expert Report] you
                 quote the [Ordinance] as saying, “A hotel is a building
                 designed for use primarily as a temporary abiding place
                 which lodging is provided for compensation with or
                 without meals containing 10 or more guest rooms and
                 having an outside common entrance.”

            A    That’s correct.

            Q    So, a hotel has to have an outside common entrance with a
                 bunch of rooms off of it.

            A    That’s correct, and it does not exist, that’s not what’s [in
                 the Ordinance], so it cannot be a hotel.

(R.R. at 380a-382a.)



                                        11
             Where a statute or ordinance defines a word or phrase, the court is
bound thereby although such definitions may be different from ordinary usage.
Hughes v. School District of Pittsburgh, 108 A.2d 698 (Pa. 1954).             Zoning
ordinances are presumptively constitutional and valid, but “[r]estrictions imposed
by zoning ordinances are, however, in derogation of the common law and (at
times) of the liberties, rights and privileges guaranteed by the Constitution of the
United States and the Constitution of Pennsylvania and therefore must be strictly
construed.” Medinger Appeal, 104 A.2d 118, 120 (Pa. 1954). (Internal citations
omitted.) As such, restrictions as to what a landowner may/may not do with his
land must not be construed as to fetter the use of that land by implication. Fidler v.
Zoning Bd. of Adjustment of Upper Macungie Twp., 182 A.2d 692 (Pa. 1962).
“The permissive widest use of the land is the rule and not the exception, unless
specifically restrained in a valid and reasonable exercise of the police power.” Id.
             Appellants' further argument suggests that under Section 603.1 of the
MPC, this permissiveness is likewise the rule unless specifically restrained in a
valid and reasonable exercise of police power.
             Section 603.1 of the MPC provides:

             [i]n 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.

Added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10603.1.

             Where doubt exists, or when there is an ambiguity in the ordinance,
“the language of a zoning ordinance should be interpreted in favor of the


                                         12
landowner and against any implied extension of restrictions on the use of one’s
property.” Adams Outdoor Advertising, L.P. v. Zoning Hearing Bd. of Smithfield
Twp., 909 A.2d 469, 484 (Pa. Cmwlth. 2006). 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); see also Riverfront
Development Group, LLC v. City of Harrisburg Zoning Hearing Board, 109 A.3d
358 (Pa. Cmwlth. 2015). “The [zoning] Board has an obligation to construe the
words of an ordinance as broadly as possible to give the landowner the benefit of
the least restrictive use when interpreting its own zoning ordinance.” Id. at 366.
             A zoning board is not a legislative body, and it lacks authority to
modify or amend the terms of a zoning ordinance. Hill v. Zoning Hearing Board
of Maxatawny Township, 597 A.2d 1245, 1251 (Pa. Cmwlth. 1991). “[Z]oning
boards...must not impose their concept of what the zoning ordinance should be, but
rather their function is only to enforce the zoning ordinance in accordance with the
applicable law.” Ludwig v. Zoning Hearing Board of Earl Township, 658 A.2d
836, 838 (Pa. Cmwlth.1995) (quoting Appeal of Kline, 148 A.2d 915, 916 (Pa.
1959)). It is the legislative body of the city, town, borough, or township that
possesses the authority to promulgate legislative acts of that governing body, and
the promulgation of a zoning ordinance is just such a legislative act. Ludwig.
Ergo, only the governing body may enact, modify, or amend the terms of a zoning
ordinance.
             The trial court's order stands in contrast to this Court's recent
decisions in Shvekh v. Zoning Hearing Board of Stroud Township, 154 A.3d 408
(Pa. Cmwlth. 2017) and Marchenko v. Zoning Hearing Board of Pocono
Township, 147 A.3d 947 (Pa. Cmwlth. 2016). In Marchenko, this Court held that a



                                         13
property owner, who rented her property on a short-term basis in a residential
district permitting single-family dwellings, did not violate the concept of a single-
family residential district. In Shvekh, the owners rented out the property but
occupied it approximately one week per month. Presently, Mr. Kleyman does not
live at the Property at all. In fact, Mr. Kleyman lives over 100 miles from the
Property in a different state.            Unlike the property owners in Shvekh and
Marchenko, the Property at issue is one of numerous properties owned by
Appellants as part of a business enterprise and never occupied by Mr. Kleyman.9
                While the facts in Shvekh and Marchenko are distinguishable because
the owners occupied the homes a portion of the time, the controlling law is not. In
Marchenko, the zoning ordinance did not prohibit the owner of a "single family
dwelling" from renting it out. Marchenko, 147 A.3d at 950-51. In Shvekh, the
zoning board sought to expand the definition of "tourist home" to include any short
term rental, without any support in the language of the zoning ordinance. This
Court held that a vacation rental of homeowner's single-family home did not meet
the definition of an improper "tourist home" contained in the township's zoning
ordinance. Shvekh v. Zoning Hearing Bd. of Stroud Twp., 154 A.3d at 408, 410-
11, 413. Referencing Marchenko, we noted that occupation of the premises was an
important but not controlling factor. Id. at 413. Enterprises such as AirBnB have
expanded the possible uses of single-family dwellings and a township can address
such uses in the zoning ordinance. Id. at 415. Amendments, however, "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.


      9
          (R.R. at 486a. See also R.R. at 483a, 555a.)



                                                14
             Consequently, 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. The Board’s function is only to
enforce the zoning ordinance in accordance with the law.            Ludwig; see also
Shvekh. Appellants have proven that ambiguity exists in the language of the
Ordinance. Because of that ambiguity, we are required to interpret the language of
the Ordinance in favor of the landowner and against any implied extension of
restrictions on the use of one’s property. Shvekh; Marchenko; Adams Outdoor
Advertising, L.P.

                        C. Health, Safety & Welfare of the Public

             The Trial Court also found that even if Appellants could establish
their use of the Property as a legitimate business use, the Township satisfied its
initial production burden and demonstrated a ‘substantial relationship’ between a
ban on using single family dwellings for short-term transient tenancies and the
health, safety, and welfare of the public. (Tr. Ct., Slip Op. 4/20/16 at 11.)
             The Board identified three areas of issue regarding the Property as
pertains to the health, safety and welfare of the public: occupancy limit (in relation
to number of bedrooms), the septic system, and disruptive tenant actions.
             The Trial Court indicated that the Board’s decision notes that “the
Property includes the placement of mattresses and/or sleep sofas [in areas] not
typically used for bedroom use.” Id. at 10. The Court further noted that Appellant
Kleyman testified he has not tested the septic system to determine if it has the
capacity to accommodate the sewage and waste water use generated by multiple
occupants of the property. Id. at 11.



                                          15
             Testimony by Appellant Kleyman on cross-examination at one point
identifies that the Property has six bedrooms and sleeps 12, while current
advertising states that the Property “sleeps 17.”      (R.R. at 521a-523a.)      Upon
recross-examination Appellant Kleyman testified that the Property has three
bedrooms but the Property sleeps “twelve to 14.”           Id. at 622a-623a.     When
questioned about any failure of the septic system at the Property, Appellant
Kleyman testified there was never a failure of the septic system. Id. at 629a.
             Regarding septic systems, testimony by the Zoning Officer indicates
that a township property has a septic permit for a septic system of a size to
accommodate the number of bedrooms at the property. (R.R. 671a.) The Zoning
Officer also testified that if a property owner were to add an additional bedroom,
but failed to obtain a permit for a septic system to accommodate the additional
bedroom “they would be in violation and if [the Zoning Officer] were to become
aware of it he would…write a citation or an enforcement notice….” Id. at 672a.
The Zoning Officer also testified that the Township has never issued a citation or
enforcement notice for a visual violation pertaining to the number of bedrooms at a
property in relation to the size of the septic system permit issued. Id.
             The Zoning Officer also testified that he has, however, used his
sensory perceptions (visual and smell) to identify septic system issues and as a
result, issued an “automatic notice from my office that [a property owner is] in
violation of the zoning ordinance…because that’s the only way [violation notices
are] going to happen….” Id. at 673a. However, the Zoning Officer also testified
that a violation has never occurred with the Property in issue. Id. at 674a.
             Appellees identify that while the Property “has many of the trappings”
of a hotel or motel type use, there is no on-site supervision or direct control or



                                          16
observation of any sort of the occupants. (Appellees’ Br. at 13.) Appellees assert
that short-term occupancy of the Property does not engender a sense of
community, shared commitment to the common good of the community, level of
stability and permanence, or other characteristics identified as inherent in a single-
family residential district. See id. at 14.
                In support, the adjoining neighbor of the Property10 testified before the
Board that his experience with the individuals on the Property as:

                [V]ery loud music, people screaming, often obscenities, people
                running in various states of undress back and forth. My
                daughter’s bedroom faces the direction of that house [on the
                Property] and during weekends when that house is leased, my
                daughter needs to sleep elsewhere because it is simply too loud
                for her to even contemplate sleeping in any way. Fireworks,
                bonfire.

(R.R. at 713a-714a.)

                Appellants, however, assert the Trial Court erred in finding “[t]here is
an identified, protected public interest at issue: the health, safety, and welfare of
the public. There is a substantial relationship between this identified, protected
public interest and a ban on using single family dwellings for short-term transient
tenancies.”11
                On the issue of tenant actions, Appellants argue there is nothing about
their use of the Property for short-term rentals that necessarily violates or
endangers the health, safety, and welfare of the public “anymore than the same

      10
           The adjoining property to the Property in issue is separated by a right-of-way.
      11
           (Tr. Ct., Slip Op. 4/20/16 at 10.)




                                                17
occurrences cited by the [Trial Court] occurring at an owner occupied single-
family residence rented for a long-term such as one year.”12 See Exton Quarries,
Inc. v. Zoning Bd. of Adjustment of W. Whiteland Twp., 228 A.2d 169, 181 (Pa.
1967).

                 In light of our previous discussion of traffic, dust and vibration,
                 we believe that the consultant's testimony consisted in reality of
                 no more than a series of epithets based solidly on only one
                 objection relevant to West Whiteland Township as a whole-that
                 this quarry was unaesthetic and conflicted with his projected
                 plans. Such an objection, as this Court has stated, is not
                 sufficient in and of itself to sustain the constitutionality of a
                 zoning restriction on the use of private property.

Exton Quarries, Inc., 228 A.2d at 181.
                 Appellants assert the alleged problems the Township sought to
address through enforcement of the Ordinance (“noise and other disturbances”) are
not problems appropriately addressed through enforcement of the Ordinance.
Rather, they argue these are issues which occur in all zoning districts distinct from
the regulation of particular uses of the property.                  Appellants assert “these
problems”13 can occur anywhere people gather, whether it is at a home, business,
tourist attraction, industrial facility or other places. (Appellants’ Br. at 65-66.)
                 Consequently, Appellants argue that the Township must address
issues of this nature by “clear and unambiguous general municipal ordinances

       12
            (Appellants’ Br. at 65.)

       13
          The problems as identified in the Trial Court’s opinion include the placement of
mattresses and/or sleep sofas not typically utilized for bedroom use; lack of testing of the septic
system to determine whether it has the capacity to accommodate the sewage and wastewater use
generated by multiple occupancies; and testimony regarding loud and boisterous activity with
fireworks, obvious signs of public intoxication, public urination, loud noise, loud music, and
lewd conduct on a regular basis. (Tr. Ct. Slip Op., 4/20/16 at 11-12; see also R.R. at 690a.)



                                               18
enacted pursuant to the general police power of [municipalities] and not through
zoning ordinances.” Id. at 66.
             As the court in Exton Quarries, Inc. noted on the issue of public
health, safety, and welfare as applicable to deprivation of the use of property via
zoning:
             Zoning ordinances are valid whenever ‘they are necessary for
             the preservation of public health, safety, morals or general
             welfare,’ but ‘the power to thus regulate does not extend to an
             arbitrary, unnecessary or unreasonable intermeddling with the
             private ownership of property, even though such acts be labeled
             for the preservation of health, safety, and general welfare.’
             Moreover, it should be borne in mind that although ‘(z)oning is
             a means by which a governmental body can plan for the future-
             it may not be used as a means to deny the future’ and that
             courts must determine ‘the reasonableness of the regulation as it
             applies to conditions [n]ow existent.’ (Internal citations
             omitted.)

Exton Quarries, Inc., 228 A.2d at 178-179.

             Here, the Trial Court held that the Board demonstrated a substantial
relationship between a ban on using single family dwellings for short-term
transient tenancies and the health, safety, and welfare of the public. Our scope of
review when no additional evidence is taken following the determination of a
zoning hearing board, is limited to determining whether the Board committed a
manifest abuse of discretion or an error of law. Cottone. We may conclude that
the Board abused its discretion only if its findings are not supported by substantial
evidence. Coal Gas Recovery, L.P. Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion. Id. If the
record indicates that the findings are supported by substantial evidence, we may
not disturb the Board's findings. Boundary Drive Assoc. v. Shrewsbury Township


                                         19
Board of Supervisors, 491 A.2d 86 (Pa. 1985). The Board, when presenting
evidence, must “raise specific issues concerning the proposal's general detrimental
effect on the community before the applicant is required to persuade the fact finder
that the use would not violate the health, safety and welfare of the community.”
Appeal of R.C. Maxwell Co., 548 A.2d 1300, 1303 (Pa. Cmwlth. 1988); see also
Tuckfelt v. Zoning Bd. of Adjustment of the City of Pittsburgh, 471 A.2d 1311 (Pa.
Cmwlth. 1984).
            Here, the Board did not meet its burden when it speculated as to
possible harm by the actions of Appellants’ tenants and their guests, since that
burden requires “a high degree of probability that [the alleged actions] will
[substantially] affect the health and safety of the community.” Appeal of O’Hara,
131 A.2d 587, 596 (Pa. 1957); Tuckfelt.
            Although conflicting testimony exists as to the number of bedrooms at
the Property, the record is devoid of evidence of any violation pertaining to
occupancy at the Property. The record identifies there was never a septic system
problem or violation at the Property. Regarding the actions of tenants and their
guests at the Property, the adjoining neighbor testified he witnessed improper and
indecent conduct emanating from some guests. (See R.R. at 713a-714a.) The
adjoining neighbor also testified the Pennsylvania State Police (PSP) were called in
November 2013. However, when questioned as to what actions the PSP took in
response to the calls around that time, the adjoining neighbor testified that “[t]he
[PSP] felt that because the [T]ownship had not, as yet, determined there to be a
violation that they would prefer to attend to these issues subsequent to a[n
Enforcement Notice] decision made by the [T]ownship.”            Id. at 695a-696a.
Although the PSP came to the Property on at least five separate occasions after the



                                          20
Township gave Appellants the Enforcement Notice, examination of the PSP
reports evidence that citations were not issued by the PSP for any of the reported
activities taking place on the Property. (See Certified Record, Township Exhibit
#4 at pp. 5, 7, 9, 11, 13.)
              Another resident of the Township also testified with regard to the
Property that “[t]hese are some really bad neighbors.” Id. at 727a. Yet, that
resident went on to testify:

              Unfortunately, this can also happen with any neighbor. If
              somebody moves in and rents the house out to somebody else,
              the exact kind of thing can happen. In fact, they do all the time.
              I’m concerned about it happening with my next door
              neighbor….[My neighbor] could do the exact same things and
              my only recourse would be – I have no recourse, basically,
              because we don’t have any ordinances here [in the Township]
              that address the kind of things that they’re dealing with.
              …
              [W]hen there is a property issue the approach within
              Pennsylvania…is to find in favor of the property owner. When
              there is uncertainty in wording or meaning or interpretation it’s
              to find for the property owner unless it can be proved
              otherwise. And basically, to try to find some sort of little twist
              or reinterpretation…just to enforce a rule and limit somebody’s
              use of their property not only is – speaks to the way we’re
              supposed to be interpreting the law is incorrect, but also from
              an ethical perspective.
              …
              If our [B]oard decides they want to find…this unusual way to
              interpret our zoning to disapprove this use [of the Property,] it’s
              like using a screwdriver on nails. It’ll work, but it destroys the
              screwdriver and every time we bend the rules to make them do
              something they’re not supposed to do we damage the rule itself
              and we lose respect for the rule….
Id. at 728a-730a. (Emphasis added.)




                                          21
             Upon review, we conclude that the Trial Court’s findings are not
supported by substantial competent evidence. The Township did not show a high
probability that the use of the Property will generate actions not normally
generated by this type of use and that the use posed a substantial threat to the
health and safety of the community. Appeal of O'Hara; Tuckfelt.
             There is no specific indication Appellants violated any occupancy
limits under the Ordinance; nor were they cited for any septic system violations.
While loud music, use of obscenities, people screaming and running in various
states of undress may not be the type of conduct one would expect nor want from a
neighbor, absent anything more, these actions do not rise to the level of a
substantial threat to the health and safety of the community. Further, we find that
the testimony, although indicative of extremely disrespectful tenants inuring to a
disrespectful landlord, did not establish a high degree of probability of specific
detrimental consequence to the public welfare. Appeal of O'Hara. This is not to
excuse Appellants. The conduct described is certainly subject to redress in any
number of ways, and one would expect law enforcement to be vigilant in
responding to neighbors' complaints. Likewise, there is nothing to constrain the
Township from enacting amendments to the Ordinance which would protect
property owners' constitutional rights while providing the specific definitional
guidelines where they are now lacking. Yet as currently enacted, the Ordinance
cannot be interpreted in a manner the Trial Court suggests nor as the Board found.
             We do not agree there was a substantial relationship between using
the Property for short-term tenancies and the health, safety, and welfare of the
public. Substantial evidence does not exist to support the Board's findings.




                                        22
                                 IV. Conclusion

            In sum, the Township’s interpretation of the Ordinance, as currently
written, is counter to the purpose of the Ordinance “as established in accordance
with the objectives of [Section 603.1] of the MPC.”         (R.R. at 31a.)   Those
objectives of Section 603.1 of the MPC interpret the language of zoning ordinances
in favor of the property owner and against any implied extension of the restriction,
where doubt exists as to the intended meaning of the language written. 53 P.S.
§10603.1; Borough of Fleetwood; Fidler; Appeal of O'Hara; Adams Outdoor
Advertising, L.P.
            The current language of the Ordinance does not specifically bar
Appellants’ use of the Property. To use the current language of the Ordinance, to
prevent use of the Property as a rental property, places doubt in the mind of this
Court as to the intended meaning of the Ordinance. Such an interpretation would,
indeed, be analogous to using a screwdriver on nails.
            Accordingly, we reverse.




                                       ___________________________
                                       JOSEPH M. COSGROVE, Judge




                                        23
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Slice of Life, LLC and               :
Val Kleyman,                         :
                   Appellants        :
                                     :
            v.                       :
                                     :
Hamilton Township Zoning Hearing     :   No. 941 C.D. 2016
Board and Hamilton Township          :



                                ORDER


            AND NOW, this 21st day of June, 2017, the order of the Court of
Common Pleas of Monroe County is REVERSED.




                                   ___________________________
                                   JOSEPH M. COSGROVE, Judge
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Slice of Life, LLC and                     :
Val Kleyman,                               :
                   Appellants              :
                                           :
             v.                            :   No. 941 C.D. 2016
                                           :   Argued: April 20, 2017
Hamilton Township Zoning Hearing           :
Board and Hamilton Township                :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE JOSEPH M. COSGROVE, Judge (P)
             HONORABLE JAMES GARDNER COLINS, Senior Judge


DISSENTING OPINION BY
SENIOR JUDGE COLINS                                       FILED: June 21, 2017


             I respectfully dissent from the well-written, scholarly opinion of the
majority.
             However, I feel that all of the evidence of record supports the trial
court’s affirmance of the Board’s decision that appellants are using the property,
not as a single-family dwelling, but rather are conducting a short-term transient
lodging business. No doubt can exist that the intended meaning of the ordinance
was not to allow the property to be used as a short-term rental unit for multiple
families and/or individuals. Transient short-term rentals for multiple families or
groups were not included within the drafters’ intentions when restricting the zoning
use to that of single-family properties.



                                      __________ ___________________________
                                      JAMES GARDNER COLINS, Senior Judge
