Agenda - Planning Commission - 04/04/2019

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February 10, 2019 I Volume 13 I Issue 3 The court explained that "[w]hile a `building' or `structure' may be constructed for a use or purpose, the use or purpose is not the building or structure itself." The court found that, by its express terms, the vested right preserved by subsection (D) was "limited to a prohibition regarding the removal of a building or structure." Here, the court found that the Board had not at- tempted to have the structures of the garage or garden house removed or declared illegal. The NOV only concerned the use of those structures. The court concluded that Code § 15.2-2307(D)(ii) did not protect the Cohns' use of the garage and garden house as dwelling units and, therefore, did "not prevent the County from requiring the Cohns to cease their illegal use of the structures and to remove the kitchens and other accoutrements that sup- port[ed] the illegal use of the structures as dwelling units." Nonconforming Use/ Short-term rentals — Township says short- term rental of home violates zoning ordinance Homeowner claims short-term rental use was a legal, nonconforming use Citation: Donald Kintner and Michelle Kintner v. Zoning Hearing Board of Smithfield Township and Township of Smithfield Appeal of: Township of Smithfield, 2019 WL 178486 (Pa. Commw. Ct. 2019) PENNSYLVANIA (1/14/19)—This case ad- dressed the issue of whether the short-term rental of a portion of a home in a residential zone constituted a valid, nonconforming use under the township's zoning ordinance. The Background/Facts: Donald Kintner and Michelle Kintner (the "Kintners") owned a single- family home in an R-1 zoning district in the Town- ship of Smithfield (the "Township"). In 2008, the Kintners began advertising the rental of a portion of their home for short-teiui rental through Airbnb—an online hosting platform that matches guests with short-term rentals. At that time, the Township's zon- Zoning Bulletin ing ordinance permitted only the following uses in the R-1 zoning district: one -family detached dwell- ings; commercial seasonal camps; forestry and for- estry reserves; wildlife refuges; membership clubs, camps, and associations; municipal recreation and entertainment facilities on lots of five or more acres; and communications towers on municipal property. The Township became aware of the Kintners' rental listing and ordered the Kintners to cease and desist "all vacation rental operations." Nonetheless, the Kintners continued to rent their home through Airbnb. In December 2016, the Township amended its zoning ordinance to add a definition for "short-term rental." The amended ordinance also specifically prohibited such short-term rentals in specified areas, including in the R-1 zoning district. Thereafter, the Township again became aware that the Kintners were listing their home for short-term rentals on Airbnb. In January 2017, the Township is- sued a second enforcement notice to the Kintners. The notice informed the Kintners that they were in violation of the Township's zoning ordinance, and directed the Kintners to cease their rental operation. The Kintners appealed the January 2017 zoning enforcement notice to the Township's Zoning Hear- ing Board (the "ZHB"). The Kintners argued that the enforcement notice should be dismissed because they had been engaged in short-term rentals of their home since 2008—before the zoning ordinance explicitly prohibited short-term rental use in the R-1' zoning district. The Kintners argued that their rental use was therefore a legal nonconforming use and should be permitted to continue. The ZHB ultimately upheld the zoning enforce- ment notice. The ZHB concluded that the Kintners' rental use did not, as they had argued, constitute a valid nonconforming use, as their short-term rental operation was not a use permitted in the R-1 zone in 2008 either. Specifically, the Board determined that the rental use did not fit within the zoning ordi- nance's definition of the permitted "one -family detached dwelling" use. The Kintners appealed the Board's ruling to the trial court. The court reversed the Board. The court concluded that short-term rentals were permitted in a single-family residential district unless clearly prohibited by the ordinance. The trial court con- cluded that there was "no proof' that the Kintners' short-term rental use was "incompatible" with the' zoning ordinance's definition of "family." The court thus concluded that the Kintners' short-term rental use was a valid, nonconforming use of their home. 4 © 2019 Thomson Reuters