Posted by: Patricia Salkin | February 10, 2020

NY Appellate Court Holds Landowner’s Use of Residence for Rentals on a Short-Term Basis was Not a Legal Nonconforming Use

This post was authored by Matthew Loescher, Esq.
Petitioner Lisa Cradit purchased property located in an R–40 low-density residential zoning district in the Town of Southold. In 2014, Cradit began using the residence on the property for short-term rentals. In 2015, Southold amended its zoning code to prohibit “transient rental properties” in all districts. Subsequently, Cradit received a notice of violation which stated that on December 17, 2015, she had violated Southold Town Code §§ 280–4 and 280–111(J). The Board concluded that Cradit had not established that her use of her property for short-term rentals was a legal nonconforming use. The Supreme Court granted the Board’s motion to dismiss the complaint, and Cradit appealed.
The court found that in renting out the residence on the property on a short-term basis, Cradit was not using the residence as a one-family dwelling. Pursuant to the Town Code, property that is used as “a boarding- or rooming house, hotel, motel, inn, lodging or nursing or similar home or other similar structure, shall not be deemed to constitute a ‘dwelling unit.” Thus, the Board correctly determined that Cradit’s use of the residence for short-term rentals was “similar to a hotel/motel use,” which had never been a permissible use in her zoning district. Moreover, prior to the enactment of Southold Town Code §§ 280–4 and 280–111(J), Southold Town Code § 280–8(E) explicited provided that “any use not permitted by this chapter shall be deemed prohibited.” Accordingly, as Cradit was using the property in violation of a prior zoning ordinance, she could not establish that her current use was a legal nonconforming use.
Cradit v. Southold Town Zoning Board of Appeals, 179 A.D.3d 1058 (2 Dept 1/29/2020)

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