March 8, 2016

In Fruchter v. Zoning Board of Appeals of the Town of Hurley, 133 A.D.3d 1174 (3rd Dept. 2015), the Appellate Division, Third Department reversed the Zoning Board of Appeals’ determination that Petitioner required a special use permit to operate a bed and breakfast.

The Court found that residential use was permitted in the zoning district in which the subject property was located. The facts in the record indicated that Petitioner rented his entire property and did not continue to reside at the property during the lease. Based on the foregoing, the court held that the use did not meet the definition of “Bed and Breakfast” under the Town Code. The record also indicated that there was no common entrance such that it would meet the definition of “Hotel” under the Zoning Code.

Based on the foregoing, the Court reversed the Zoning Board of Appeals, finding that the short term rentals did not bring the use outside of the residential use permitted under the Zoning Code. The Appellate Division did, however, agree with the Supreme Court that Petitioner failed to establish a constitutional claim for denial of due process or equal protection.

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