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PETITIONERS WERE NOT REQUIRED TO OBTAIN A USE VARIANCE BEFORE APPLYING FOR A SPECIAL PERMIT TO OPERATE THEIR RESIDENCE AS AN AIRBNB, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the Zoning Board of Appeals’ (ZBA’s) ruling that petitioners would have to obtain a use variance before applying for a special use permit to operate their residence as an Airbnb rental lacked a rational basis:

Town Code § 280-31 provides that the uses and structures permitted in the R-1 District, where petitioners’ residence is located, include the principal uses and structures permitted under section 280-24, which governs R-E Districts, except those specified in subdivisions four and five of the six enumerated subdivisions in that section. The sixth subdivision allows “[t]he following uses by special use permit authorized by the Planning Board: . . . (b) Bed-and-breakfast establishments and tourist homes” … . A plain reading of sections 280-24 and 280-31 therefore unambiguously demonstrates that special uses are permitted principal uses, subject to authoriztion by the Planning Board … . …

… [W]e conclude that the Town Code establishes that special uses are permitted uses in specific districts, but 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 … . Our interpretation of the Town Code is supported by Town Law§ 274-b (1), which defines a special use permit as “an authorization of a particular land use which is permitted in a zoning ordinance or local law, subject to requirements imposed by such zoning ordinance or local law to assure that the proposed use is in harmony with such zoning ordinance or local law and will not adversely affect the neighborhood if such requirements are met.” Matter of Churchill v Town of Hamburg, 2020 NY Slip Op 05356, Fourth Dept 10-2-20

 

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