Should homeowners who began renting their houses on a short-term basis before Aug. 25, 2015, be allowed to continue doing so?
One Orient attorney and his clients think so.
Salem Katsh represents 10 to 15 Southold Town homeowners who had been renting out their houses for less than 14 consecutive nights before a law prohibiting that practice took effect last August. In a letter sent to town officials last Thursday, Mr. Katsh claimed the section of the town code dealing with “non-conforming uses” — uses that existed legally before the passage of a code change — clearly states that use can continue. The homeowners he represents, Mr. Katsh contends, should be grandfathered and be unaffected by the law.
“Grandfathering is specifically mandated by the town code,” Mr. Katsh said in the 23-page document. “The code expressly provides that this right to continue a prior use of private property applies to ‘all uses and buildings that become nonconforming by reason of any subsequent amendment to this chapter.’”
While many of the points made in the letter are issues that could only be decided by a state or federal court, the challenge on the grandfathering issue is initially being made before the town Zoning Board of Appeals. Mr. Katsh, who is listed in publications such as “Who’s Who in America,” and “Best Lawyers in America,” filed the appeal Friday, although it was uncertain at presstime when or if the appeal would be heard by the ZBA.
Town code states: “Nonconforming use of buildings or open land existing on the effective date of this chapter or authorized by a building permit issued prior thereto, regardless of change of title, possession or occupancy or right thereof, may be continued indefinitely.”
Mr. Katsh, who also spoke against the law last year during the Town Board meeting at which it was approved, says the new short-term rental law defines and treats “transient rental property” as a “use” regulated under the code.
While the town could also change, or even repeal, the law it enacted last year, it appears that won’t happen anytime soon. Southold Town Supervisor Scott Russell’s response to Mr. Katsh’s claim avoided getting into the specifics.
“It would be inappropriate to comment on pending litigation or an appeal pending before the Zoning Board of Appeals,” Mr. Russell said in an email to The Suffolk Times. “However, the law we passed and the provisions it contains to ensure compliance is legal, defendable and enforceable.”
The short-term rental law was a hot-button issue for most of 2015 in Southold Town.
Opponents claimed homeowners who rented out their houses were running commercial businesses in residential neighborhoods and were creating quality of life issues for the rest of the people living in those neighborhoods. They said short-term rentals, which some dubbed “party houses,” also hurt local hotels and bed-and-breakfasts, which were subject to regulations and fees that short-term rentals weren’t — although county officials began taxing the transient rentals by the end of last year.
“The proliferation of party houses will only degrade our neighborhoods and change a very beautiful place,” East Marion resident Mike Griffing said at a Town Board meeting in March 2015.
“What’s happening now is that some of the houses that are going on the market are being bought by people — and they are not opting to rent year round, they are opting to rent nightly or weekly. And that removes housing from the inventory,” Mr. Russell said at a May 19, 2015, Town Board meeting, in response to a woman who said she was homeless because she couldn’t afford rentals in Southold Town.
Prior to the short-term rentals law, Southold Town didn’t require a permit for any type of residential rental, including year-round rentals, as nearby towns of Riverhead and Southampton do. Mr. Russell said at the May 19 meeting that the town was also considering enacting that type of rental permit, which has yet to occur.
Proponents of short-term rentals said they’ve have been going on for years in Southold Town and that the visitors they bring to the area are an important part of the local economy. They said most visitors can’t afford to stay for two weeks and wouldn’t come if they were required to stay that long.
Abigail Field, an attorney who represented residents who rented their homes on a short-term basis, said last year that she conducted a survey of 91 guests who rented short-term accommodations in Greenport and Southold on VRBO. Results showed that 57 percent of the rentals were for one weekend and 33 percent were for one week.
Two-thirds of the survey respondents said they would only visit again if a short-term rental were available.
Tom Edmonds of Mattituck told the Town Board last year that he and his wife had started to use Airbnb to rent out rooms in their house on a short-term basis.
“I think we have absorbed a lot of interest in the North Fork from people from Europe and from Brooklyn,” he said at a March 2015 Town Board meeting. “Those are our primary guests and they are fulfilling, they are sustaining the North Fork businesses.”
Mr. Edmonds said about half his guests arrive by public transportation and eat out two or three times during their stay — which is usually two or three days.
While Mr. Katsh said his clients are primarily concerned about the grandfathering provision, that’s not their only complaint. They also cited letters the town code enforcement officer has sent to residents believed to have violated the new code.
The letters state: “You are hereby notified that you have been found to be in violation of the Town Code” and indicates that a violation of the short-term rental law is punishable by a fine of up to $8,000 per day.
Mr. Katsh, who called the fines “draconian and constitutionally excessive,” said the letters imply that a conviction has already been made. He also said that a section of the law that says anyone advertising short-term rentals is “presumed” to be guilty of having short-term rentals is unconstitutional.
“The ads at issue,” Mr. Katsh wrote, referring to Airbnb or other ads for short term rentals, “cannot seriously be characterized as materially proximate to an illegal act. Regardless of what an ad says — for example, ‘Short-Term Vacation Rentals, Come for a Weekend or a Month’ — if no rental for less than 14 nights is consummated, no violation will have occurred.”
Photo: (Credit: airbnb.com)