Development

In reversing, the Appellate Division first rejected neighbors' spot zoning challenge, holding that the proposed senior living district was a residential district and therefore not inconsistent with the town's comprehensive plan, which had recommended preservation of the residential character of the area in which the SLD was to be located. The court further noted that the comprehensive plan had recognized the need for senior housing. But the court then held that the 100-foot buffer should be treated as part of the rezoned area for purposes of Town Law section 265. The court emphasized that the utilities in the buffer area were necessary for the rezoned project. As a result, the court held that the rezoning was invalid for failure to obtain the necessary supermajority.

Comment

Generally, in order to avoid the supermajority requirement of Town Law §265, a rezoning applicant may limit his rezoning application to a smaller portion of his property, thereby creating a buffer zone of at least 100 feet between the rezoned area and the neighboring landowners. In Eadie v. Town Bd. of Town of N. Greenbush, 7 N.Y.3d 306, the Court of Appeals upheld a rezoning by simple majority where the rezoned area was over 200 feet from the edge of the property, holding that a buffer zone prevents neighboring landowners from invoking Town Law §265, even if the rezoning applicant intended to circumvent the supermajority requirement when creating the buffer zone. The Court found that "fairness and predictability" support the conclusion that Town Law §265 only applies to those neighbors who are within 100 feet of the portion of the property that will actually be affected by the rezoning.

Even if the buffer zone contains improvements that will benefit the rezoned area, those improvements will not change the status of the buffer zone if the improvements benefit areas other than the rezoned area. In Ferraro v. Town Bd. of Town of Amherst, 79 A.D.3d 1691, the Fourth Department held that neighboring landowners could not invoke the supermajority requirement of Town Law §265, even though the buffer zone contained driveways providing access to the rezoned area. The court rejected the neighbors' argument that since the buffer zone contained improvements for the rezoned area the buffer zone itself needed to be rezoned, which would then allow the neighbors to invoke the supermajority requirement. In holding that the buffer zone did not need to be rezoned, the Court pointed to the Commissioner of Buildings' finding that the driveways would serve a "dual purpose."

In Dodson, the neighbors made a similar argument as the Ferraro plaintiffs about improvements in the buffer zone, but the court contrasted the facts in Ferraro and declared the intended buffer zone a part of the rezoned area. The court interpreted the "dual purpose" language in Ferraro to require that if the improvement in the buffer zone will solely benefit the rezoned area, the municipality must treat the buffer zone as part of the rezoned area. Since the emergency access way, which was to be built in the buffer zone and was necessary to the SLD, did not provide any public benefit or other purpose aside from serving the rezoned area, the court deemed the buffer area a part of the rezoned area. The neighboring landowners were therefore able to invoke the supermajority requirement.

*****

Short-Term Rentals Do Not Qualify As Single-Family Use

Matter of Cradit v. Southhold Town Zoning Board NYLJ 1/31/20, p. 31, col. 2 AppDiv, 2nd Dept. (memorandum opinion)

In landowner's hybrid article 78 proceeding/declaratory judgment action challenging the zoning board's (ZBA's) determination that her use of the property was not a legal non-conforming use, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding/action. The Appellate Division modified to also declare that landowner's use was not a legal nonconforming use, concluding that landowner's use of the property for short-term rentals was not legal even before enactment of an ordinance explicitly prohibiting those rentals.

In 2006, landowner purchased a home in a low-density (R-40) residential zoning district. In 2014, she began using the home for short-term rentals. The following year, the town amended its zoning code to prohibit "transient rental properties" in all districts. The town then issued landowner a violation, prompting landowner to appeal to the ZBA contending that her use for short-term rentals was a pre-existing non-conforming use. At a hearing, landowner testified that ninety-nine percent of the rentals had been for seven nights or fewer. The ZBA concluded that her use had been similar to a hotel/motel use, which had never been permitted on the property. Landowner then brought this hybrid proceeding, and Supreme Court denied the petition an dismissed the proceeding.

In upholding the ZBA's determination, the Appellate Division held that use of the property for short-term rentals did not constitute use as a one-family dwelling. The court noted that even before enactment of the current ordinance, the town code had explicitly provided that "any use not permitted by this chapter shall be deemed prohibited." As a result, because landowner's use was not use as a one-family dwelling, landowner was not entitled to protection as a pre-existing non-conforming use. The court modified to declare that the use was not a legal non-conforming use.

Comment

In the absence of an express prohibition in the zoning ordinance, the use of a residence for short-term rentals will not violate the ordinance's single-family use restriction. In Matter of Atkinson v. Wilt, 94 A.D.3d 1218, the Third Department affirmed the trial court's judgment, annulling a zoning board of appeals determination that petitioner owners' property constituted a "tourist accommodation" in violation of the town's ordinance. Petitioner owners had rented their six-bedroom, single-family residence on a weekly basis as a vacation rental to various parties. Because the owners screened potential renters, the court held that they were not operating the home in violation of the ordinance's prohibition on "tourist accommodations," which the ordinance defined to include a "transient facility used to house the general public." See also, Matter of Fruchter v. Zoning Bd. of Appeals of The Town of Hurley, 133 A.D.3d 1174 (reversing a zoning board's dismissal of a property owner's petition to review a determination because the owner's short-term rental of his entire single-family residence did not explicitly fall under the definition of a "bed or breakfast" in violation of the Town Code.)

Courts have indicated that express prohibitions on the use of single-family residences for short-term rentals are enforceable. In Spilka v. Town of Inlet, 8 A.D.3d 812 (N.Y. App. Div. 2004), the Third Department upheld the validity of the town's amended zoning ordinance which required landowners to obtain a special use permit for the rental of non-owner occupied properties for periods of less than four months. Plaintiff-landowner rented his entire, one-family dwelling on a short-term basis for a period of three months. The court's strong language upholding the validity of the ordinance may have been dicta because the court remanded the case to determine whether the landowner was entitled to continue short-term rentals as a nonconforming use that existed before the town enacted the prohibition. See also, Weisenberg v. Town Bd. of Shelter Island, 404 F. Supp. 3d 720 (2019), (upholding the validity of the Town Code's amendment, which imposed "licensing and advertising requirements for certain vacation rentals and the prohibition of regulated vacation rentals from being rented more than once in any fourteen-day period.")

Although in single-family district cases, courts have rejected the analogy between short-term rentals and hotels, some courts have accepted the analogy to prohibit short-term rentals in multiple dwellings. Multiple Dwelling Law §4(8)(a), has been construed to prohibit the rental of a Class A multiple dwelling for periods of less than thirty days when the host is not present. For instance, in City of N.Y. v. Tominovic, NYLJ LEXIS 272 (2020), the court granted a preliminary injunction to plaintiff New York City, enjoining individual and corporate defendants from illegally renting out units in numerous multiple dwelling buildings. The defendants created 28 separate Airbnb host accounts and accepted at least twenty thousand, short-term rental reservations. The court focused on the absence of safety standards applicable to hotels, noting that each building used by the defendants lacked safety features such as automatic sprinklers and fire alarms. See also, Brookford, LLC v Penraat, 47 Misc. 3d 723, (granting a landlord's order to show cause for a preliminary injunction enjoining a tenant from advertising and renting an apartment to tourists for periods of less than thirty days because of insufficient fire protections.)