Residential District Code Violation - Town of Salina NY \ Liverpool NY \ Syracuse NY \ Upstate NY

Residential District Code Violation - Town of Salina NY \ Liverpool NY \ Syracuse NY \ Upstate NY

My neighbor complained about my AirBnb, the Town of Salina NY told me that "Nightly AirBnB rentals" were prohibited in residential districts as a "business, commercial and industrial", the notice then told me to "stop all AirBnB operations"

I challenged this in court and lost with the following argument:

  1. If renting is legal
  2. Then renting is not a “business, commercial and industrial"
  3. If rental lengths are not regulated
  4. Nightly are just as legal as monthly or yearly

 

As I see it I have a few options…

  1. I can appeal the court’s decision, and challenge this head on with a similar argument and see how it goes
  2. I can change my minimum length of stay to 30 days which should be well within my rights and show the town that it cannot force me to “stop all AirBnB operations”
  3. I can change my minimum length of stay to 5 days which should solve the notice of running a “Nightly” rental and may push the court to choose sides and make them consider what constitutes a “Short Term Rental”

 

I’ve read a bit about “Short Term Rentals” and in NYC the real issue there is running an AirBnB from a “Multiple Dwelling” building and whether or not the owners are present while the guests stay at their home.

 

I’m always home while I have guests, I own my own home, and it seems like this isn’t an issue for Hosts in NYC.

 

Any thoughts, advice, would be much appreciated.

46 Replies 46

The ticket is nothing but an "appearance" ticket, where you have to appear in court and enter a plea. I told the court that I wasn't running a business, industrial or commercial and the judge set a court date for a "hearing" where I presented my argument. 

You could do the same and enter a different argument, you could change your listing to a 30 day minimum stay, and under oath the code guy said that 30 day rentals were fine.

You don’t have a court ruling against you, and no fines have been issued, I took my posting down because I have a fine to consider, you don’t, … yet, but don’t let this scare you, these town officers are not police officers and have egos the size of Texas. You are not running a business, you are offering short term rentals that do not bring other than normal traffic to your street.

 

If the town is allowed to force us to take our profiles down they could use the same logic and put each piano teacher out of “business” for offering piano lessons, or every snow plow truck that parks in a driveway and has a profile online.  

 

Don’t fold, this isn’t settled law by a long shot, this is a code enforcement officer that thinks his “general understanding” of the town code is all that matters.

Thank you for your reply 🙂 I did take down my posting this morning because I do not want a 30-day stay in my home. I also do not want to appear in court and then go to a hearing. It is not worth all the aggravation and effort. I'm sure you noticed that you can relist easily. That is a possibility in the future.

@Walter0

 

I contacted codes director, Mark and discussed whether I would be in compliance if my minimum stay was 30 days and he stated I would still be running a business out of my home.. he stated that I can rent but my guests would have to have run of the whole home except our bedroom.  I stated that basically is the situation here due to the entire basement being our bedroom.  It is open basement that we use as a studio apartment.  

He really couldn’t go on from there but kept telling me it a violation to run a business out of our home.

He stated the next town board meeting is the Tuesday after Columbus Day if I want the laws changed then that’s who it needs to be taken up with. 

I think we need to work hard to get everyone there on that Tuesday, the enforcement of this law is incoherent!

This also may be the perfect case to use the NYC multiple dwelling law which allows people to offer short term rentals if they are home. (I'm not in a multiple dwelling district) but NYC allows this

Jo389
Level 2
Syracuse, NY

Mine states similar, but it says I’m in a R-1 district which does not allow a business to be run on a residential area.  It states to cease business operations by 9/27 or a ticket will be issued.  

 

I would love to try to educate people and challenge this, but I don’t have the funds to pay for any tickets if I don’t  cease business and I can’t pay for a lawyer.

 

katie 

you don't need funds, you don't have any fines yet, we could move this along several ways, you could sidestep this issue and change your minimum stay to 30 days, we could also pool our recources and hire a lawyer to push this at least to appeal. We could also get try and get other people like those advertising on "rover.com" for dog sitting involved, there are a lot of people in our town that may be impacted by this, such as piano teachers, snow plow drivers, uber drivers ect. without an explicit definition of a "commercial business" or "industrial business" we are at the mercy of the code enforcement officer's "General Understanding" 

 

This is not acceptable, these violation notices are nothing but smoke being blown, we need at least to get together and talk about a path forward.

 

Remember you don't need a lawyer, you can represent yourself with a very simple argument, I can help you with that. 

 

Here'd the definition of an "Established Place of Business":

https://ecode360.com/11092150?highlight=business,established%20place%20of%20business,of#11092150

 

Here's the code they are citing:

https://ecode360.com/11093433

 

The multiple dwelling law in NYC seems to allow for people to do short term rentals so long as they are home during the rental period.

 

Here's some info on that

https://www.airbnb.com/help/article/868/new-york--ny

 

 

I just replied to Walter and also want to say that I agree with you.

Jo389
Level 2
Syracuse, NY

@Walter

 

I contacted codes director, Mark and discussed whether I would be in compliance if my minimum stay was 30 days and he stated I would still be running a business out of my home.. he stated that I can rent but my guests would have to have run of the whole home except our bedroom.  I stated that basically is the situation here due to the entire basement being our bedroom.  It is open basement that we use as a studio apartment.  

He really couldn’t go on from there but kept telling me it a violation to run a business out of our home.

I explained that these laws are archaic and that the town needs to look into this as we should catch up with technology and I explained Airbnb is a community and there is a vetting process.  I also attempted to explain that hosts are bringing good to the town as I was recommending local businesses and festivals for them to go to bringing revenue in.  He, obviously cares about none of this.

He stated the next town board meeting is the Tuesday after Columbus Day if I want the laws changed then that’s who it needs to be taken up with. 

Katie 

We need to get everyone together and be prepared with some kind of proposal

Katie, this site may be worth your time

http://stradvocacy.org/advocacy/

I don't think the town has a legal leg to stand on, there was a case in Chico CA where this kind of overreach was overruled by a higher court

"Judge Marcie Larson ruled in Mandy and Jacob Whigham’s favor at a hearing in July. Chico’s municipal code does not effectively prohibit short-term occupancies “given the absence of any clear direction,” she concluded. This creates the “danger of overbroad and arbitrary application.”

 

Here's the artical, https://www.chicoer.com/2017/08/24/airbnb-other-vacation-rentals-legal-for-now-in-chico/

 

I need to find the actual docket # and court case to refer to though, not sure if I can submit this artical as part of my appeal

Since the ruling, the city of Chico now collects a 10% ocupancy tax on all "Short term Rentals"

https://chico.hdlgov.com/

 

Did you ask Mark if you could rent for 30 days on craigs list???

These guys don't know what they are talking about, don't be intimidated, the law isn't clear and is clearly being abused 

 

Unless there is a SPECIFIC ordinance that covers STR (short-term-rentals) the jurisdiction cannot force you to shut down. This was tried in a case in Chico, CA where the judge sided with the host, because their was no "clear direction" and there was "overbroad and arbritary application" meaning. 

There needs to be a specific ordinance covering STRs.

 

Due process dictates that the Law must not be arbitrary, capricious or retaliatory.

 

Jo389
Level 2
Syracuse, NY

I have given the notice to remedy along with the definition of place of business that you found to a lawyer to look over hoping she could also give us some arguments.  I would like to meet and I plan on going to town board meeting, but I was waiting to hear back from her.   I temporarily unlisted, but I’m not stopping. 

The gathering at Panera went well, AirBnb doesn't make it easy to get together with other hosts, please search for "Upstate AirBnB United" on facebook and join the group so you can share info. Several things came out in the meeting that are key to appealing the court ruling against AirBnb.