BEFORE THE

ZONING HEARING BOARD OF

LOWER MERION TOWNSHIP, MONTGOMERY COUNTY
PENNSYLVANIA

_______________________________

APPEAL NO. 4163

_______________________________

IN THE MATTER OF: : Applicant - Appellant

:
Thomas Avenue Properties, LLC : 39 Thomas Avenue
: Bryn Mawr, PA 19010

MEMORANDUM, FINDINGS, OPINION & ORDER

Thomas Avenue Properties, LLC (the "Appellant") owns the property at 39

Thomas Avenue in Bryn Mawr (the "Property"). The Property is zoned R-6A Residence

and is improved with a single-family dwelling and detached garage. Andrew and Patrick

DiLoreto are the sole members of Thomas Avenue Properties, LLC. They are also

students at Villanova University. The DiLoretos have lived at the Property since the

beginning of the school year with two other Villanova students, Christopher Ryan and

Brian Poser, to whom they are not related.

On September 2, 2008, the Lower Merion Housing Officer sent the Appellant a

notice of violation of the Township's Student Home Ordinance,1 directing the Appellant

to comply with the Ordinance or file an appeal within thirty days. Thereafter, Appellant's

counsel contacted the Township Zoning Officer by e-mail suggesting that the DiLoretos'

1
The Student Home Ordinance was codified in a number of non-sequential sections of the Township
Zoning Ordinance. It contains a number of regulations that apply specifically to "student homes" – defined,
essentially, to mean a living arrangement for college students. See Code §155-4 B ("Student Home").
status as owners of the Property rendered the Student Home Ordinance inapplicable to

their Property. The Township Zoning Officer responded to counsel's e-mails by

ultimately issuing, on October 7, 2008, a letter interpreting the Ordinance to require that

the Appellant adhere to the Ordinance or file an appeal. According to the Zoning Officer,

once the DiLoreto brothers took on a single unrelated roommate, the Property became a

"student home."

Appellant appealed the Zoning Officer's interpretation to the Board on November

6, 2008. The appeal was later amended to remove the Appellant's challenge to the

validity of the Student Home Ordinance (on its face, or as applied to the Appellants).

Instead, the appeal alleged that the Property could not be considered a "student home" at

all.

The Board held a hearing on the appeal on December 4, 2008.

The Appellant's factual presentation was brief. Counsel acknowledged that two

unrelated Villanova University students (Messrs. Ryan and Poser) have lived at the

Property since the beginning of the school year, but stated that Mr. Poser would be

leaving. Andrew DiLoreto stated that he and his brother acquired the Property (as sole

members of the limited liability company) with 100% financing provided by their

parents. Counsel then articulated Appellant's legal claim that the DiLoreto brothers

should not be deemed "students" under the Ordinance because they are owners of the

Property. And since they are not students, the occupancy of the Property by just one

college student – presumably Mr. Ryan once Mr. Poser leaves – would not be a "student

home."

2
 Several neighbors, as well as a representative of the Bryn Mawr Civic

Association, testified in opposition to the appeal. They stated their concern that there

were already several student homes in the area and that, while the DiLoretos and their

tenants have not caused any substantial problems in the neighborhood, the Board should

still consider their occupancy to be a student home.

For the following reasons, the appeal will be denied and the opinion of the Zoning

Officer will be sustained.

Section 4 B of the Zoning Ordinance defines "student home" in relevant part as:

A living arrangement for students, unrelated by blood,

marriage or legal adoption, attending, or about to attend, a
college or university …

Code §155-4 B ("Student Home").

Nowhere in this definition is there an exception for students who own the

property in question. The Board cannot read such an exception into the Ordinance under

the pretense of pursuing what the Appellant urges is a better policy (i.e., the Ordinance

should not apply to them because as owners of the Property, the DiLoretos have a stake in

the quality of life in the neighborhood that mere student tenants do not). Walck v. Lower

Towamensing Township Zoning Hearing Board, 942 A.2d 200 (Pa. Cmwlth. 2008). The

courts have long held that the question of whether a use is permitted under a zoning

ordinance turns on the nature of the use being made of a property, not on the identity of

the user. Lench v. Zoning Hearing Board of Adjustment of the City of Pittsburgh, 852

A.2d 442 (Pa. Cmwlth. 2004).

3
 Secondly, the Appellant admits that, as of the night of the hearing, there were two

unrelated college students living on the Property – Messrs. Ryan and Poser. Even under

Appellant's construction of the Ordinance, this is a violation.2

Assuming that Mr. Poser leaves the Property, as Andrew DeLoreto stated will

occur, the question remains whether a dwelling inhabited by two brothers and one

unrelated friend, all of whom attend a college, meets the definition of "student home."

The Board holds that it does.

The plain language of the ordinance includes such a circumstance: "a living

arrangement for students unrelated by blood, marriage or legal adoption." If the only

occupiers of the Property were Andrew DeLoreto and Patrick DeLoreto, they would not

be a student home because each is related to the other by blood. If the only occupiers of

the Property were Andrew DeLoreto and Christopher Ryan, they would be a student

home because each is unrelated to the other. It would be an absurd result to hold that

adding another college student to this last arrangement (albeit one related to one of the

other students) destroys the dwelling's status as a student home. The law does not

countenance an interpretation of a zoning ordinance that would produce an absurd result.

Stoltzfus v. Zoning Hearing Board of Eden Township, 937 548 (Pa. Cmwlth. 2007). This

is particularly true where, as here, the plain language of the Zoning Ordinance includes

the Appellant's use in the definition of "student home."

For all of the foregoing reasons, the appeal will be dismissed.

2
This is likely why Mr. Poser will be leaving the Property.

4
 ORDER

AND NOW, this 8th day of December, 2008, it is hereby ORDERED that the appeal

of Thomas Avenue Properties, LLC from the interpretation of the Township Zoning Officer

that the Appellant's use of the property at 39 Thomas Avenue in Bryn Mawr constitutes a

"student home" is DENIED and the interpretation of the Zoning Officer is SUSTAINED.

Chairman Aaron and Members Fox and Brier participating, all voting "aye."

Attest: _________________________________
Michael Wylie
Secretary