Posted by: Patricia Salkin | December 18, 2015

NY Appellate Court Annuls Zoning Board of Appeals Decision Requiring Petitioner to Obtain a Special Use Permit

Petitioner owned a two-bedroom single-family residence located on about four acres in the Town of Hurley, Ulster County. In 2012, he began listing the property on the Internet offering to rent it for terms ranging from one night to a month or an entire season. Respondent Glenn Hofstatter, the code enforcement officer for the Town, issued petitioner an order to remedy for illegally operating a bed-and-breakfast or hotel. Petitioner appealed to respondent Zoning Board of Appeals of the Town of Hurley, which determined that under the Town Code petitioner’s short-term rentals were not allowed unless he obtained a special use permit. Petitioner commenced a CPLR article 78 proceeding and action for declaratory judgment. The Supreme Court dismissed the petition and declared that petitioner’s due process and equal protection rights were not violated. On appeal, Petitioner now contends that the Town Code does not require a special use permit for the type of short-term rentals that he provides.

Although the ZBA did not determine the category of use that petitioner’s activity constituted under the Town Code, it upheld Hofstatter’s determination, which had labeled the use as either a bed and breakfast or hotel. Despite this, petitioner’s use of the property did not fall under the definitions in the Town Code of either of these. Petitioner’s residence did not have “a common exterior entrance or entrances” as set forth in the definition of a hotel. Moreover, since petitioner always rented the entire premises and he did not remain on the premises when rented, it was not an “owner-occupied dwelling” in which only “rooms” were being rented as provided in the definition of a bed-and-breakfast. Since petitioners use was not prohibited by the Town Code, the court granted the petition to annul the determination of respondent Zoning Board of Appeals of the Town of Hurley.

Fructher v Zoning Board of Appeals of Town of Hurley, 2015 WL 7460160 (NYAD 3 Dept. 11/25/2015)

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