Pennsylvania Supreme Court justices mulled whether the state's zoning boards may penalize property owners for operating single-family homes as short-term vacation rentals through Airbnb and other lodging networks.

The justices heard arguments Wednesday in Slice of Life v. Hamilton Township Zoning Hearing Board, which focused on whether a Monroe County rental property fit the definition of a hotel in the zoning rules, and how broadly zoning ordinances should be read.

According to Stroudsburg attorney Gerard Geiger of Newman, Williams, Mishkin, Corveleyn, Wolfe & Fareri, who argued on behalf of the zoning board, the issue came down to whether the property was occupied by a family. He noted that Val Kleyman, who owned the property through an LLC, did not live there.

“A lot of companies are coming in now, but the people are not living in them,” Geiger said, adding that the issue has raised a lot of “emotions” in the Poconos community. ”When you buy a home, you can reasonably expect that people next to you are not going to put a hotel in there.”

Matergia & Dunn attorney John Dunn, who argued on behalf of the township, noted that certain hotel suites are equipped with kitchens and other living areas typically associated with homes, so those features should not be a defining distinction between whether a property should be considered a home or a hotel under the zoning law.

“If you don't live there, it's a commercial use,” he said.

The case comes to the Supreme Court on an appeal from the zoning board and township, after the Commonwealth Court determined that Kleyman did not violate residential zoning codes in Hamilton Township, a Monroe County municipality.

The township had argued to the Commonwealth Court that Kelyman's use of the house as a “transient lodging enterprise” was completely at odds with the single-family home residential district ordinance. The trial court had agreed, and held that Kleyman's use of the property as a short-term rental created public health and safety concerns, specifically regarding the untested septic system on the property, upholding the ruling of the zoning board.

Commonwealth Court Judge Joseph Cosgrove, however, disagreed, and said the language of the ordinance was ambiguous on whether such use of the home was permissible, and thus up for interpretation. He further determined that the board offered only speculation on the possible harm that could befall the community because of the septic system or tenant conduct.

According to Geiger, Kleyman sold the property before the Supreme Court argument session, so she did not make an argument during the appeal. Instead, the attorney advocating for the Commonwealth Court's decision to be affirmed was Joshua Windham of the Institute for Justice in Arlington, Virginia, which appeared as an amicus curiae.

Windham said businesses like Airbnb were consistent with the single-family attached dwelling, and that zoning rules needed to more specifically bar the practice of renting the facility short term.

Reversing the trial court, he said, would mean “upholding a citation based on an unwritten offense.”

Justice Max Baer, however, questioned whether a determination that zoning boards need to list specifically barred uses imposed too great a burden.

“The list for things it cannot be used for would be infinite,” Baer said. “How is that burden realistic?”

Windham contended that the town could have reasonably foreseen short-term rentals as a use, and added that his argument would allow municipalities across the state to revise their zoning ordinances to specifically address new services that have arisen through the gig economy.

Justice Christine Donohue also asked Windham about what she characterized as decades of case law against the Commonwealth Court's findings about permissible uses of single-family houses.

Windham said the issue came down to who was using the property, adding that it differed from case law because the properties would still be used by families and the uses at issue did not include things like renting a property as a frat house.

“This case is in lock step,” Windham said, adding that in all the cases Donohue cited the Commonwealth Court had found that the property was being used for a specifically prohibited use.