Berks County Bar Association The Berks Barrister Winter 2019 - 8

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Short Stays Spark New Zoning, Land Use Rules
Continued from page 7

Section 1.7 Due to the nature of the Internet, Airbnb cannot
guarantee the continuous and uninterrupted availability and
accessibility of the Airbnb Platform. Airbnb must restrict the
availability of the Airbnb Platform or certain areas or features
thereof, if this is necessary in view of capacity limits, the
security or integrity of our servers, or to carry out maintenance
measures that ensure the proper or improved functioning
of the Airbnb Platform. Airbnb may improve, enhance and
modify the Airbnb Platform and introduce new Airbnb
Services from time to time.
Terms of Service, AIRBNB, INC., https://www.airbnb.
com/terms (last updated April 16, 2018) (hereinafter, "Terms of
Service").
Airbnb's Terms of Service, similarly, squarely place
responsibility for compliance with local laws on land use, conduct,
and taxes on the property owner:
Section 7.2.3 You represent and warrant that any Listing
you post and the booking of, or a Guest's stay at, an
Accommodation will (i) not breach any agreements you have
entered into with any third parties, such as homeowners
association, condominium, or other agreements, and (ii)
comply with all applicable laws (such as zoning laws), Tax
requirements, and other rules and regulations (including
having all require permits, licenses and registrations). As a
Host, you are responsible for your own acts and omissions
and are also responsible for the acts and omissions of any
individuals who reside at or are otherwise present at the
Accommodation at your request or invitation, excluding
the Guest and any individuals the Guest invites to the
Accommodation.
Section 13.1 As a Host you are solely responsible for
determining your obligations to report, collect, remit or include
in your Listing Fees any applicable VAT or other indirect sales
taxes, occupancy tax, tourist, or other visitor taxes or income
taxes ("Taxes").
Section 13.3 You understand that any appropriate
governmental agency, department and/or authority ("Tax
Authority") where your Accommodation is located may
require Taxes to be collected from Guests or Hosts on Listing
Fees, and to be remitted to the respective Taxing Authority.
The laws in jurisdictions may vary, but these Taxes may be
required to be collected and remitted as a percentage of the
Listing Fees set by Hosts, a set amount per day, or other
variations, and are sometime called "transient occupancy taxes,"
"hotel taxes," "lodging taxes," "city taxes," "room taxes" or
"tourist taxes" ("Occupancy Taxes")."
Id.
8 | Berks Barrister

As explained herein, the placement of these responsibilities on
the property owner results in local governments having to take
action to revise land use regulations. Local governments also
have few guarantees of recouping revenue from occupancy taxes
as the prevalence and increase of use of these online short-term
rental platforms lead to increased land-use regulation enforcement
action.

Short Term Rentals and Land Use Regulation
Land use laws in many municipalities have not caught up
with the prevalence of these platforms for short term rentals. In
resort areas, such as one just a short drive from Berks County, the
Poconos, neighbors' complaints about these short-term rentals
have led to the issuance of Notices of Violation (NOV) by local
authorities, and litigation in the past several years. Some of the
cases recently decided by the Commonwealth Court on this issue
include:
Reihner v. City of Scranton Zoning Hearing Board, 176 A.3d
396 (Pa. Commw., December 17, 2017):
The Commonwealth Court reversed the decision of the
Court of Common Pleas of Lackawanna County, which had
upheld the denial by the Zoning Hearing Board of the City
of Scranton of an appeal of an NOV to property owners,
George and Judith Reinher. The Reinhers were alleged to
have unlawfully operated a bed and breakfast use in their
home by offering three renovated rooms on the third floor of
their residence, located in a Medium Low Density Residential
District in the City of Scranton, for rent through Airbnb for
stays of less than four nights. The Reinhers did not, however,
serve food, including "breakfast" to renters. The Lackawanna
County court interpreted the zoning Ordinance definition
of a "bed and breakfast" as meaning only short-term room
rental. The Reinhers asserted that the City Zoning Ordinance
language seemed to suggest that a "bed and breakfast" would
supply both a room and breakfast to short-term guests. The
Commonwealth Court found that the City Zoning Ordinance
was ambiguous, and because of that ambiguity, the Ordinance
was to be interpreted in the property owner's favor, and the
decision of the Court of Common Pleas, upholding the
issuance of the NOV, was reversed.
Marchenko v. Zoning Hearing Board of Pocono Township, 147
A.3d 947 (Pa. Commw. September 19, 2016):
In Marchenko, the owner of a single-family residence in a Low
Density Residential Zoning District, Tatiana Marchenko,
offered her home for short term rental by way of the
HomeAway platform. Marchenko did so on approximately
eighteen occasions, for a total of seventy-one days. While
the home was being rented, the property owner would stay
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Berks County Bar Association The Berks Barrister Winter 2019

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