Development

(memorandum opinion)

In landowner's article 78 proceeding challenging a determination by the zoning board of appeals (ZBA) requiring him to obtain a special use permit, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division reversed and granted the petition, holding that the town zoning code did not prohibit Internet rentals of landowner's home.

Landowner owns a two-bedroom single-family residence in an area zoned for residential use. In 2012, he began listing the property on the Internet for rentals ranging from one night to an entire season. Landowner always rents the entire residence, does not stay there when the residence is rented, and does not offer food or beverages. The town's code enforcement officer issued an order to remedy illegal operation of a bed-and-breakfast or hotel. The zoning board of appeals then determined that the short-term rentals were not allowed unless landowner obtained a special permit. Landowner then brought this article 78 proceeding challenging the determination, and Supreme Court dismissed the petition.

In reversing and granting the permit, the Appellate Division acknowledged that a determination by a zoning board of appeals is generally entitled to deference, but emphasized that where, as in this case, the issue is one of pure legal interpretation, deference is not required. In this case, the court held that landowner's use of his property did not fall within the town code's definition of hotel because it did not have a “common exterior entrance or entrances” as required in the definition of hotel. And, because landowner never stayed in the house while he rented it, the house did not fall within the code's definition of “bed-and-breakfast.” As a result, landowner's use of the premises did not fall afoul of the code's zoning definition, so he was not required to obtain a special permit.

COMMENT

At least one court has enforced a zoning ordinance's explicit restriction on short-term rentals of single-family homes. In Spilka v. Town of Inlet, 8 A.D.3d 812, the Third Department upheld the Town of Inlet's zoning amendment, which required special-use permits for any rental of a non-owner-occupied dwelling for periods of less than four months. In Spilka, landowner challenged the amendment to the Town of Inlet's zoning ordinance as arbitrary, discriminatory, and illegal. The amendment required special permits for all rentals for periods shorter than four months by “any person or entity who owns a building or structure in the R1 Residence District, but is not occupying that building or structure.” Spilka, 8 A.D.3d 814. The court emphasized that the amendment identified legitimate governmental purposes for its enactment, including preserving aesthetic uniformity in residential neighborhoods, encouraging residential maintenance and preventing neighborhood blight. Id. at 815.

While clear language in a zoning ordinance can impose an enforceable restriction on short-term rentals, courts are reluctant to construe an ordinance's prohibition of tourist accommodations as a restriction on short-term rentals. In Atkinson v. Wilt, 94 A.D.3d 1218 (2012), the Third Department annulled a zoning board of appeals determination that owners' rental of a single-family home as a vacation rental constituted a prohibited “tourist accommodation.” The ordinance defined “tourist accommodation” as “any hotel, motel, resort, tourist cabin or similar transient facility used to house the general public, including an accessory restaurant.” Land Use Ordinance of Town of Arietta ' 2.020. The Ordinance defined a single-family residence as a “detached building, not including a mobile home, used as the living quarters for one. The term shall include a seasonal cottage” Id. Seizing upon inclusion of a “seasonal cottage,” the court in Atkinson concluded that owners' decision to rent their residence did not place the premises outside the definition of a single-family residence. Atkinson, 94 A.D.3d 1221. The court also emphasized the absence of any express prohibition against owners of a single-family resident renting their home. Id.

New York's Multiple Dwelling Law restricts use of Class A multiple dwellings for short-term rentals of less than 30 days. N.Y. Mult. Dwell. Law ' 4 (McKinney). In City of New York v. Smart Apartments LLC, 39 Misc.3d 221, the court preliminarily enjoined Smart Apartments LLC from operating its business, which advertised, booked and maintained accommodations for short-term rentals of less than 30 days, in Class A apartments throughout New York City. The court reasoned that operating the business in Class A multiple dwellings presents a danger to transient occupant because of inability to access fire safety devices, such as fire extinguishers, sprinklers, alarms and evacuation plans that are required of hotels, which cater to providing for the safety of transient populations. Smart Apartments LLC , 39 Misc.3d 226. According to the Smart Apartments court, transient occupants are less familiar with a building's fire evacuation procedures as well as their surroundings than non-transient occupants, so the absence of safety measures provided to ordinary hotel guests presents a danger to the transient occupants of Class A apartments. Id.

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Planning Board Entitled To Rescind Subdivision Approval

Sullivan Farms IV, LLC. V. Village of Wurtsboro

2015 WL 8373781, 12/10/15

AppDiv, Third Dept. (Opinion by Devine, J.).

In developer's article 78 proceeding challenging rescission of the planning board's approval of a subdivision plat, developer appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the planning board was entitled to rescind an approval that violated state and local law.

In 2009, developer obtained planning board approval for a 72-unit townhouse residential cluster development. The approval lapsed, and developer sought and obtained a new approval in 2011. The planning board chair signed the plat in 2012, and the plat was filed with the county clerk. In 2013 and 2014, the village enacted two local laws amending its subdivision regulation to change the methodology for calculating the number of allowable dwelling units in a residential cluster development. In 2014, the planning board rescinded its subdivision approval. The board had initially approved the 72-unit development based on its assumption that the entire development would occupy 85 acres. However, only 54 of those acres were located within the village; the expectation was that the village would annex the remaining acres. The annexation never occurred, and the 54 acres were insufficient to justify the 72-unit development under applicable zoning regulations. As a result, the planning board determined that the initial approval was invalid because it violated state and local law. Developer then brought this article 78 proceeding. Supreme Court dismissed the petition.

In affirming, the Appellate Division held that the planning board was entitled to rescind an approval that was issued in excess of its legal authority. The court then rejected developer's argument that it had acquired vested rights to the subdivision once it had demonstrated its commitment to the approved development. The court emphasized that rights to a subdivision approval could only vest if the approval was valid in the first instance.

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