Friedman’s attorney, Alicia Rood of Schroder, Joseph and Associates of Buffalo, introduced first, and the focus of her argument as to why vacation rentals should continue boiled down to the literal language of the city of Dunkirk’s zoning statutes.
One definition in particular is that of “Passing Guests”, prohibited by the Dunkirk City Zoning Act.
However, the City of Dunkirk Zoning Act defines transient guests as “B&B guests whose stay is temporary.” Rood said that since the property is not, by definition, a bed and breakfast, it does not therefore accommodate transient guests. Aside from not being a bed and breakfast, it doesn’t fit the description of a hotel, motel or inn, all of which are also banned in R1 districts.
Rood also argued that the rental does not violate the requirement that it be used as a family home, as most of the groups renting the home are in fact families. Rood added that rentals could violate zoning laws on a case-by-case basis, although that was not up for debate Wednesday night.
“Most of them are actually families,” said Rod. “Whether it’s family or a group of unrelated people have come and rented, that’s not in front of you. That would be a specific, individual breach at that point in time if and when that came before you.”
One bone of contention that residents have tried to use to support their arguments is that the zoning statute dictates that any use not expressly permitted is prohibited. Rood addressed this by saying that this could then be applied to those using homes on Woodlands Drive as summer homes or other potential uses.
“They would actually say that all summer residents, possibly unless they stay 30 consecutive days, would not be permitted use of their home.” Said Rood. “Now they are suddenly passing guests. People might not have family members visiting for the next few days… You might not be able to have flea markets, parties… Your interpretation will have long term implications not only for Miss Friedman but for the other property owners as well.”
Rood said Friedman bought the home in that county under the impression that it could be used as a VRBO — Vacation Rentals By Owner — based on other R1 properties available in the city, though they never touched the city Dunkirk has contacted the Zoning Board for official clarification. Zoning board members all said they were not aware of any other rentals in R1 districts within the city.
“Short term holiday rentals in R1 districts in this city for years”, said Rod. “We have presented evidence of this. So this decision will not only affect Miss Friedman, it will affect all of these property owners… In fact, by allowing this to continue for years, the city previously determined that this was a permissible use.”
Colin Knoer, the attorney representing Woodlands Drive residents, disagreed with Rood’s view, saying that other violations should not allow for future or past violations.
“If it is true that there are other short-term rentals, their violation of the zoning law does not give others the right to violate the zoning law.” said Knor. “These other operations have not set a precedent.”
Knoer amended the definition of what a family is for the purpose of residing in an R1 district. Part of what he highlighted is the need for permanent family residence.
“The family is related by blood, marriage, or adoption, and you can also have the functional equivalent of a family by meeting certain criteria.” said Knor. “Part of that criteria is finding a permanent, stable, non-transitory home… Even if the clients are family, they don’t live there. You are visiting. They are guests… Functionally, these customers are hotel guests. That is their relationship to the property and owner.”
Knoer also reiterated that the zoning statute prohibits uses not expressly permitted in R1 counties, and explained that because they are expressly permitted in other counties within the city, their lack of permission in R1 counties should speak for themselves.
“If a law required short-term rents in R1, it would say so.” said Knor. “It says so elsewhere. The fact that it is specifically allowed elsewhere shows the intention of the law to keep it out of R1 districts.”
Since both sides have submitted detailed briefs to Dunkirk City Attorney Jeff Passafaro and presented their cases to the Zoning Board, the Zoning Board now has 60 days to make its decision. Its next meeting will take place on Wednesday at 5.30 p.m