Posted by: Patricia Salkin | October 3, 2020

NY Appellate Court Holds Airbnb Permitted Use Subject to Special Use Permit

This post was authored by Tyler Doan of Vermont Law School

Property owners wished to use their property as an Airbnb. The Town of Hamburg Zoning Board of Appeals and the Town of Hamburg Code Enforcement Officials interpreted the Code of the Town of Hamburg as not to allow a tourist home to be a permitted principal use in the R1 zoning district. The ZBA and CEO determined the property owners would need to apply for a use variance before applying for a special use permit to operate the Airbnb. The Appellate Court concluded that the Supreme Court failed to apply the language of the Town Code’s relevant provisions. The Court stated, “A plain reading of sections 280-24 and 280-31 … unambiguously demonstrates that special uses are permitted uses, subject to authorization by the Planning Board …” The Court concludes that the Town Code established that special uses are permitted uses in specific districts. The burden is on the applicant of a particular use permit to show it is allowable by establishing the requisite individual characteristics. If the Town Board had intended for special uses to be separate, they would have separated them.

Churchill v. Town of Hamburg, 2020 WL 5867695 (NYAD 4 Dept. 10/2/2020).

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