If the Southold Town code never put any restrictions on the renting of single-family homes before a 2015 ban on stays of fewer than 14 nights, then prior short-term rentals were:
a) illegal because nothing in the code said they were legal or
b) legal because nothing in the code said they were illegal.
That’s the crux of a debate that has resulted in a lawsuit challenging the Southold Town Zoning Board of Appeals ruling that a Greenport home being used as a short-term rental before the adoption of the 2015 law should not be grandfathered and allowed to continue, as the property owner has claimed.
The case involves Greenport homeowner Lisa Cradit, who rented her Sound Road home before the Town Board’s approval of the new law on Aug. 25, 2015.
Ms. Cradit, who was issued a notice of violation in January for renting her home for a period shorter than the new code allows, took her case to the ZBA claiming she should be permitted to continue renting her house on a short-term basis because she had done so before the ban took effect.
Ms. Cradit and her attorney, Salem Katsch of Orient, argued at a May 5 public hearing before the ZBA that the section of the town code dealing with “non-conforming uses” — uses that existed legally before the approval of a code change — clearly states that such a use can continue despite the new law and, as such, should be grandfathered and unaffected by the change in code.
Ms. Cradit purchased her Sound Road home in 2006 and had rented it on a short-term basis since 2014.
“Right now, at this time, my job does not permit me to live here full time,” Ms. Cradit said at the May 5 hearing. “My husband and I are here almost every single weekend year-round and we will retire here.”
She said she began renting her house out of necessity when she was out of work for almost a year.
The ZBA did not agree with the “non-conforming use” argument.
In a June 16 ruling, the board pointed out that the grandfathering section of the town code will allow a “legally existing use on the effective date” of a new law to be exempt from that law.
The ruling stated, however, that zoning code prohibits any use that is not expressly permitted, and that because short-term rentals were not expressly permitted uses, they were therefore illegal.
“There is no indication from the Certificate of Occupancy or any document submitted by [Ms. Cradit] that, during the time period relevant to this application, the property was ever used for or permitted to be used for any other purpose other than the permitted [one-family dwelling],” said the ZBA decision, read by chairperson Leslie Kanes Weisman on June 16.
Ms. Cradit’s lawsuit, which names the ZBA as defendants, was filed in state Supreme Court July 21. It seeks to have the ZBA ruling overturned and the notice of violation dismissed.
“Prior to the 2015 law, there was never any law in Southold expressly prohibiting, regulating or even mentioning the subject of single-family home rentals,” the lawsuit claims.
In the 375 years since Southold Town was founded in 1640, “neither Southold nor any other authorizing agency has ever issued any summons or violations notice of any kind condemning or even questioning the right of an owner of a one-family residential home in Southold to rent his/her premises for any length of time,” the suit claims.
Ms. Cradit’s lawsuit alleges that if the ZBA ruling is correct, then “all of the thousands of rentals engaged by Southold property owners since the Zoning Code was adopted in 1957 were illegal.”
The ZBA ruling pointed out that town code specifies that a hotel, motel, inn, lodging or “similar structure” is not considered a dwelling unit.
The Town Board enacted the short-term rental ban in 2015 after months of debate between residents who claimed the properties — often rented through online home-sharing websites— were creating noise and congestion in residential areas and property owners who claimed the short-term rentals are a boost to the local economy and provide additional income for property owners.
Southold Town Supervisor Scott Russell said the lawsuit is “without merit.”
“You can hardly claim status as a ‘pre-existing’ use when the use wasn’t permitted to begin with,” he said. “If owners thought they were permitted to establish such a business in these houses, they never saw fit to [notify] the Assessors who, I presume, continued to tax them as single-family homes — essentially the one use that’s actually permitted.”