Petitioner owned a two-bedroom single-family residence in the Town of Hurley, Ulster County. In 2012, Petitioner began listing the property online to rent for terms ranging from one night to an entire season. Respondent Hofstatter, the Town’s code enforcement officer, issued Petitioner an order to remedy for illegally operating a bed-and-breakfast or hotel. Petitioner appealed to Respondent Zoning Board of Appeals of the Town of Hurley, which held that under the Town Code, Petitioner’s short-term rentals required a special use permit. Petitioner commenced a hybrid CPLR Article 78/declaratory judgment. The Supreme Court dismissed the petition and declared Petitioner’s due process and equal protection rights were not violated. On appeal, Petitioner contends that the Town Code does not require a special use permit for the type of short-term rentals that he provides.

While the ZBA did not decide what category of use Petitioner’s activity fell under in the Town Code, it upheld Hofstatter’s determination labelling the use as either a bed and breakfast or hotel. Despite this, Petitioner’s use of the property did not meet either of these definitions in the Town Code. Petitioner’s residence did not have “a common exterior entrance or entrances” provided in the definition of a hotel. In addition, since Petitioner always rented the entire premises and vacated while renting, it was not an “owner-occupied dwelling” in which only “rooms” were being rented as provided in the definition of a bed-and-breakfast. As Petitioner’s use was not prohibited by the Town Code, the Court granted the petition to annul the ZBA’s determination.

The case was Fructher v Zoning Board of Appeals of Town of Hurley, 133 A.D.3d 1174 (3d Dep’t 2015).