The Commonwealth Court has upheld the ban on municipalities enacting an ordinance to restrict the unlawful carrying of firearms on property owned by the municipality. Firearm Owners Against Crime, et al. v. Lower Merion Township, 1693 C.D. 2015 (Pa. Cmwlth Ct., filed December 16, 2016).
Lower Merion Township enacted an ordinance prohibiting persons from “carrying or discharging firearms of any kind in a park without a special permit, unless exempted.” The FOAC contacted the Township and alleged that the ordinance violates Section 6129(a) of the Pennsylvania Uniform Firearms Act [UFA], which states that “no county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms.” The Township determined that since the ordinance only prohibited the unlawful possession of firearms in parks, it was consistent with the UFA. The FOAC filed for a preliminary injunction that was denied by the trial court. The Commonwealth Court reversed finding that the Pennsylvania Supreme Court already has decided that the UFA is a general ban on regulating firearms, and that there is no distinction between lawful and unlawful activity. The Commonwealth Court also held that the Township did not have the right to regulate firearms on the Township’s own property. The UFA explicitly prohibits a township from regulating firearms “in any manner,” and contains no express exemption authorizing a township to enact an ordinance regulating firearms on township property.
Senior Judge Pellegrini filed a dissent. Judge Pellegrini would have upheld the trial court’s denial of the injunction because the case law does allow a local government to control what takes place on its property. Judge Pellegrini noted that result of the majority’s opinion is something that the General Assembly never intended – “that a local government must permit guns in and on property that it owns, including its recreation centers, ballfields, daycare centers and libraries, not to mention county offices in the courthouse, in its police department, at its jail, in its council chambers, in its mayor’s office and so on.” The case law does allow a local government to forbid firearms on its property because it is not regulating firearms throughout the entire township but, instead, it is carrying out its inherent right as a property owner to control what conduct occurs on its property.
There Goes the Neighborhood
In Marchenko v. Zoning Hearing Board of Pocono Township, 147 A.3d 947 (Pa. Cmwlth. 2016), the Commonwealth Court held that the lack of language prohibiting transient housing in the definition of “single family dwelling” meant that daily rentals of a home in the R-1 zone was permissible. The owner resided in the home 62% of the time, and rented it out the other 38% of the time to tourists on a daily or weekend basis. As you can imagine, the renters had loud parties, lots of cars and even set off fireworks while drunk. The neighbors naturally complained, and the zoning officer cited the owner. The zoning hearing board upheld the violation finding that the owner was operating a “lodge,” which was not permitted in the R-1 zone. The owner appealed, and the Court of Common Pleas affirmed. The Commonwealth Court reversed, holding that the owner’s short-term rentals to families are not prohibited, and that her short-term rentals did not constitute a “lodge.” The Commonwealth Court based its decision on the fact that the owner resided in the property the majority of the time. The zoning hearing board should have broadly interpreted the term “single-family dwelling” to allow the rental activity rather than straining to designate the activity as a prohibited lodge use. The Commonwealth Court reasoned that because only a single family resided in the home at any one time (even though on a rolling basis), the use still remained a “single family dwelling” under an expanded interpretation of that term. The Commonwealth Court also found that calling the use a “lodge” was in error because the definition of “lodge” denotes a “house or hotel in the country or mountains for people who are doing some outdoor activity,” and that the purpose of a lodge is short-term accommodation. in this case, since the owner used the property as her residence the majority of the time, and only rented it out a minority of the time, the property cannot be considered a lodge.
Senior Judge Pellegrini filed a dissent stating that the majority incorrectly equated the term “family” in “single-family dwelling” with successive groups of people who happen to share a house for several days. Judge Pellegrini noted that no matter how much you stretch the definition of family to benefit the owner, it cannot be stretched to include renting to multiple people for short-term stays because the Pennsylvania Supreme Court has held that for a group of persons to be considered a family for zoning purposes, some level of permanence is required.