Short-Term Rental or “Tourist Home” Deemed a Permitted Use despite Need for Special Use Permit from Planning Board

Farrell Fritz, P.C.
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As the popularity of short-term rentals continues to grow and many local governments are adopting restrictions to keep their use in check, the authors of the Long Island Land Use and Zoning blog are closely monitoring how these restrictions are faring in the courts. As you will see from the recent case entitled Churchill v. Town of Hamburg, 2020 N.Y. Slip Op. 05356 (4th Dep’t 2020), short-term rental restrictions may be ineffective if they are not properly placed within a municipality’s zoning ordinance.

Petitioners, Michael Churchill and Diana Stirling, sought to operate their residence in the Town of Hamburg, New York, as an Airbnb rental. In 2017, they made application to the Planning Board requesting a special use permit to allow their residence to be used as a “tourist home.” The Petitioners claimed that “tourist homes” are a permitted principal use in the R-1 District with a special use permit from the Planning Board because Town Code § 280-31 states that all uses (except for golf clubs and hospitals) that are permitted in the R-E District are permitted in the R-1 District. They also pointed out that the R-1 District regulations do not exclude “tourist homes.”

With respect to allowable uses in the R-E District, Town Code § 280-24 expressly provides:

Permitted uses and structures.

Uses and structures permitted in the R-E District are as follows:

A. Principal uses and structures:

* * *

(6) The following uses by special use permit authorized by the Planning Board (see Article XLVI):

* * *

(b) Bed-and-breakfast establishments and tourist homes.

The Town’s Code Enforcement Official (“CEO”) concluded that a “tourist home” is not a permitted principal use in an R-1 District and denied the application. Under the CEO’s interpretation of the Town Code provisions, the Petitioners would first have to obtain a use variance before applying for a special use permit from the Planning Board in order to operate their residence as an Airbnb rental.

The Petitioners requested an interpretation of the relevant Town Code sections and a review of the CEO’s determination from the Zoning Board of Appeals (“ZBA”). Following a public hearing, the ZBA affirmed the CEO’s interpretation and determination. The Petitioners then commenced an Article 78 proceeding seeking to annul the ZBA’s determination. The Erie County Supreme Court denied the petition and an appealed ensued.

The Appellate Division, Fourth Department, agreed with the Petitioners that the ZBA’s interpretation of the Town Code lacked a rational basis and that the Supreme Court erred in sustaining the ZBA’s determination.

At the outset, the Court concluded that the Supreme Court failed to apply the clear language of the Town Code’s relevant provisions. In the court’s own words, “a plain reading of sections 280-24 and 280-31 . . . unambiguously demonstrates that special uses are permitted principal uses, subject to authorization by the Planning Board.”

Contrary to the ZBA’s determination and the interpretation advocated by Town, the Appellate Division concluded that the Town Code establishes that special uses are permitted uses in specific districts. However, in such cases, the burden is on an applicant for a special use permit to show that the proposed use is allowable within that district by establishing that the use has the requisite individual characteristics.

While it is obvious from its position in the litigation that the Town Board clearly did not intend “tourist homes” to be permitted uses, the Court was constrained to apply the plain language of the relevant code sections. However, in pointing out that “if the Town Board had intended for special uses to be separate from principal uses, it would have separated them into their own category as it did with accessory uses,” the Court gratuitously provided the Town with a roadmap for amending its ordinance, if it wished to do so.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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