Zoning Restrictions Strictly Construed Against Town, Keeps Home Renter in Business

Score one for a happy homeowner in Hurley, NY.

The Appellate Division of New York’s Supreme Court recently reversed the judgment of a lower court that had dismissed a Hurley homeowner’s petition seeking to overturn a Zoning Board of Appeals determination that the homeowner had essentially turned his residence into a hotel or bed and breakfast and thus required a special use permit.  The case is Fruchter v. Zoning Board of Appeals of the Town of Hurley, 2015 NY Slip Op. 8689 (N.Y. App. Div. Nov. 25, 2015).

Since 2012 the homeowner has been renting out his entire two-bedroom single-family residence for varying periods of time, listing it on one or more websites.   Noting that his “activity does not fit neatly into the definitions in the Town Code,” the Appellate Court examined whether “the rentals removed the property from the definition of residential one-family dwellings and whether such activity fits under another definition in the Town Code.”  It easily concluded the Code’s definitions of the terms ‘hotels,’ ‘bed and breakfasts,’ ‘dwellings,’ ‘residences,’ ‘transient,’ and activities requiring a special use permit were inapplicable, and coupled with the absence of any express prohibitions, meant the homeowner did not need a special use permit to rent out his home.

Of course the Town of Hurley may eventually act to amend its zoning ordinance to prohibit such rentals, but if so it will presumably be as a result of a more democratic process than what played out here.  A single code enforcement officer, who himself apparently couldn’t determine if the residence should be treated as a hotel or bed and breakfast, should not unilaterally be making significant policy decisions for a municipality, or imposing increased regulatory burdens upon its citizens – especially when only relying upon a vague, outdated ordinance.

Posted in Home Sharing, Litigation, Zoning
One comment on “Zoning Restrictions Strictly Construed Against Town, Keeps Home Renter in Business
  1. Michael says:

    Even with a permissive zoning ordinance to work with, special use permits are not guaranteed. How much longer will municipalities be referring to “unchartered waters?”

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