Renting Your House out Online? Better Check the Zoning Ordinance First
Property owners should take care to review local ordinances before listing their homes and apartments as vacation rentals online. Over the past few years, the use of websites like Airbnb, VRBO and HomeAway, which allow users to offer short-term rentals of their property, has exploded. Prior to websites like these, owners did not have such easily accessible platforms to market their homes to out-of-town visitors. For this reason, many local zoning ordinances do not address where, and to what extent, these short-term vacation rentals are permitted within a municipality.
However, two recent Commonwealth Court opinions have shed light on the issue in Pennsylvania. First, in Marchenko v. Zoning Hearing Board of Pocono Township, No. 2021 C.D. 2015 (Pa. Commw. Ct. Sept. 19, 2016), the court considered whether short-term vacation rentals, like those offered by the websites above, constitute “single-family dwelling” uses, such that their use is permitted in single-family residential zoning districts.
Tatiana Marchenko (Marchenko) purchased a residential dwelling located in an R-1 Low Density Residential Zoning District in Pocono Township, Monroe County. To assist with paying taxes and other expenses, Marchenko advertised the property for short-term rental on HomeAway.com. Over approximately five months, Marchenko rented the property to third parties on 18 separate occasions for a total of 71 days. Alleging that Marchenko’s use of her property for commercial purposes in an R-1 District was in violation of the Pocono Township Zoning Ordinance (Zoning Ordinance), the zoning officer issued Marchenko a notice of violation. Marchenko appealed to the Pocono Township Zoning Hearing Board (ZHB), which upheld the notice of violation, finding that Marchenko’s use of her home was not a “single-family dwelling” use, but was rather more akin to a commercial “lodge” use, which was not permitted in the R-1 district.
Upon eventual appeal to the Commonwealth Court, the ZHB’s decision was reversed. The court held that Marchenko’s use of the property was a “single-family dwelling” use, despite its frequent use as a vacation rental. The Court noted that Marchenko resided at the property for a majority of the time and that the property was not used purely for transient visitors. The court also held that Marchenko’s use of her property as a short-term vacation rental did not constitute a “lodge” use under the Zoning Ordinance. Therefore, the notice of violation could not be upheld and Marchenko was permitted to continue short-term rentals of her property.
A second Commonwealth Court opinion, Shvekh v. Zoning Hearing Board of Stroud Township, No. 929 C.D. 2016 (Pa. Commw. Ct. Feb. 6, 2017), also addressed the issue. This time deciding whether short-term rentals constitute improper “tourist homes.”
Irina Shvekh (Shvekh) owned a property located in Stroud Township’s S-1 Special and Recreational District, where “tourist homes” were not permitted. Using AirBnB and VRBO, Shvekh rented the property out 20 to 25 times over a 12 month period, while occupying the residence approximately one week a month. Concluding that this pattern constituted a “tourist home” use under the Zoning Ordinance, the Stroud Township (also located in Monroe County) zoning officer issued Shvekh a notice of violation. Shvekh appealed to the Stroud Township ZHB, which upheld the violation, finding that “short-term, transient rentals [are] more typical of a hotel or tourist home, where vacationers or travelers would not be considered to be maintaining a residence in the ordinary meaning of the phrase.” Taking no additional evidence, the trial court upheld the ZHB’s decision.
Upon appeal to the Commonwealth Court, the ZHB’s decision was reversed. Citing to its earlier decision in Marchenko, the court found that no provision in the Zoning Ordinance specifically prohibited the owner of a single-family home from occasionally renting it out to vacationers. Additionally, the court noted that the amount of time a residence is occupied by the owner, though relevant to some extent, is not the determining factor. Rather, longstanding Pennsylvania precedent requires that any doubt in the interpretation of a zoning ordinance must be resolved in favor of the landowner and the least restrictive use of the land. Because the Zoning Ordinance was ambiguous, and did not specifically exclude short-term rentals from the zoning district in question, Shvekh was permitted to continue marketing her residence on rental websites.
It is important for property owners and municipal officials to be aware of the Marchenko and Shvekh decisions because they stand for the proposition that, in the absence of a zoning ordinance provision specifically addressing or limiting short-term vacation rentals in residential zoning districts, homeowners are permitted to freely market their properties on vacation rental websites. However, before purchasing property intended to be used as a short-term rental, prospective buyers should have an attorney review the applicable zoning ordinance to determine whether restrictions or limitations exist as to the use of the property. Similarly, converting a home to a short-term rental should only be done after a careful review of the zoning ordinance to avoid potential fines from the municipality or the possibility of having to terminate an already agreed upon rental contract with a third party, which might result in damages. In light of the cases above, municipalities will undoubtedly be amending their zoning ordinances to address short-term vacation rentals and it is essential that zoning requirements be reviewed regularly