Vacation rental sides square off

OBSERVER Photos by Anthony Dolce A full house packed the Dunkirk town hall last week.

Attorneys representing both the residents of Woodland’s Drive, who have been fighting the operation of a vacation rental at 5184 Woodlands Drive, and the owner of the property in question, Jennifer Friedman, had chances to make their case to the Town of Dunkirk Zoning Board last month.

Friedman’s attorney, Alicia Rood from Schroder, Joseph and Associates in Buffalo, presented first, and the focus of her argument as to why the vacation rental should be allowed to continue came down to the language of the letter of the Town of Dunkirk’s zoning laws.

One definition in particular is that of “transient guests,” which are outlawed in the Town of Dunkirk Zoning Law.

However, the Town of Dunkirk Zoning Law defines transient guests as “guests of a bed and breakfast whose stay is temporary.” Rood said that since the property is, by definition, not a bed and breakfast, it therefore does not host transient guests. On top of not being a bed and breakfast, it doesn’t fit the description of a hotel, motel, or boarding house, all of which are outlawed in R1 districts as well.

Rood also argued that it being rented out does not violate the requirement it be used as a single-family dwelling, as most of the groups renting the house are, in fact, families. Rood added that rentals on a case-by-case basis may violate the zoning laws, though that is not what was up for debate on Wednesday night.

Alicia Rood, the attorney representing Jennifer Friedman, who owns the VRBO property speaks.

“Most of them are in fact families,” said Rood. “Whether or not it’s a family or if a group of unrelated people came and rented, that’s not before you. That would be a specific, individual violation at that time, if and when that were to come before you.”

One area of contention the residents have used to try and make their case is that the zoning law states that any use that’s not expressly permitted is prohibited. Rood addressed that by saying that could then be applied to those who use homes on Woodlands Drive as summer homes or other potential uses.

“You would in effect be saying that all of the summer residents, potentially, unless they stay for 30 consecutive days, that would not be a permitted use of their home,” Rood said. “Now all of the sudden, they are transient guests. People couldn’t have any family members come and visit for the next couple days… Potentially you couldn’t have garage sales, parties… Your interpretation will have long term implications, not only for Miss Friedman, but the other property owners.”

Rood said Friedman purchased the house in that district under the impression that it would be allowed to be used as a VRBO — Vacation Rentals By Owner, based on other R1 properties being available within the town, though she never reached out to the Town of Dunkirk Zoning Board for official clarification. The Zoning Board members all indicated that they are not aware of any other rental in R1 districts within the Town.

“Short term vacation rentals in R1 districts in this town for years,” said Rood. “We submitted evidence of that. So, this decision will not only affect Miss Friedman, it’ll affect all those property owners… By allowing that to go on for years and years, the town, in effect, has previously determined that this was a permitted use.”

Colin Knoer, the attorney representing the Woodlands residents.

Colin Knoer, the attorney representing the residents of Woodlands Drive, disagreed with that sentiment from Rood, as to him, other violations shouldn’t allow for any violations that may come in the future or past.

“If it’s true that there are other short-term rentals, their violation of the zoning law does not create a right of others to violate the zoning law,” said Knoer. “There is no precedent created by these other operations.”

Knoer added on to the definition of what a family is, for the purposes of residing in an R1 district. Part of what he highlighted is the need for a family residence to be one of permanence.

“Family is related by blood, marriage, or adoption and you can also meet the functional equivalent of a family by meeting certain criteria,” said Knoer. “Part of those criteria are finding their permanent, stable, not-transient home… Even if customers are a family, they’re not dwelling there. They’re visiting. They’re guests… Functionally, these customers are hotel guests. That’s their relation to the property and owner.”

Knoer also reinforced that the zoning law does prohibit uses in R1 districts that are not expressly permitted, stating that because they are expressly permitted in other districts within the town, their lack of permission in R1 districts should speak for itself.

“If a law wanted short term rentals in R1, it would say so,” said Knoer. “It says so elsewhere. The fact that it’s specifically allowed elsewhere demonstrates the intent of the law to keep it out of R1 districts.”

As both sides submitted detailed briefs to Jeff Passafaro, the Town of Dunkirk attorney, and made their cases to the Zoning Board, the Zoning Board now has 60 days to make their decision. Its next meeting will be Wednesday at 5:30 p.m.


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