Highland to enforce overlooked short-term rental rule

ELDRED, NY — Does the property owner live on-site?

If not, they must get a special use permit before renting out a house in the Town of Highland.

The town added this step in the approval process for short-term rental permits, differentiating for the first time between properties that are occupied by the owner and properties that are not.

In his interpretation of the town law that governs rentals, town attorney Steven Mogel, who also represents the planning board, departed from previous practice.

At the March 27 planning board meeting, he asked about an applicant’s owner-occupation status. The applicant’s representative, Kristin Mitchell, was confused.

“I’m the first person to have this now moving forward?” she asked.

“Yes, this particular component seems to be a bit new,” Mogel said.

He said Mitchell was free to schedule a public hearing for the next meeting. “This will be the first time, at least since a review of the law, in which we have a non-owner-occupied short-term rental,” he said.

A special use permit allows a property to be used in a way that deviates from the normally accepted use under current zoning regulations—as long as the project meets certain conditions not required by a permitted use.

‘It’s the law’

Mogel pointed the River Reporter to town code: Section 190-21, Subsection D. “It says site plan and special use approval shall be required for all non-owner-occupied short-term rental uses,” he said. “So that’s about as clear as it could possibly be.”

He said it was “reasonable” to think about a property used solely for commercial purposes differently from a property also used as a personal residence. “I think somebody could reasonably say, yes, I think we should treat these two uses differently,” he said. “But, the reason why it’s being addressed differently by the planning board is because it’s dictated by the law. That’s that.”

The previous planning board attorney, Michael Davidoff, never raised that distinction.

“I can’t really speak to what happened before my tenure on the board,” said Mogel. “I’m not going to say that’s either correct or incorrect because I really honestly don’t know.”

It could mean that a property unoccupied by the owner never came before the planning board, or that nobody had ever asked the question before.

“Once I reviewed the law, I saw that these are clearly being addressed differently,” he said. “And we’re obligated to follow the law.”

Mogel has experience as a municipal attorney, advising the zoning board of appeals in the Town of Mamakating and the village board in Bloomingburg, and as special counsel in various towns over the years.  

Mogel’s interpretation seemed to surprise both the planning board and the applicant. Mogel said towns and villages with a new administration and new legal representation commonly disagree on interpretations of statutes and procedures.

“There was a prior administration that was there was in place for a long period of time,” he said. “And this is a very new administration, with a new cast of characters, and it has not been without some disputes and controversy. I think that it’s just taking a little time for everything to settle in. We’ve had a number of personnel changes. And there are bumps in the road.” 

HOAs enforce deed restrictions

One thing the town will not do is regulate short-term rentals for homeowner associations. 

Last week, Andrew Kinsey presented a short-term rental application for his property in Pyne Ayre Estates to the planning board for the second time. The planning board had asked Kinsey to first secure an approval from the Pyne Ayre Homeowners Association. But he didn’t. 

Kinsey read a passage from the homeowner association’s bylaws that says renters are allowed. 

“We’re back at the same impasse,” said planning board member Tim McKenna.

Mogel said there was no legal reason to deny Kinsey’s application. But he said the board was entitled to vote on the application in any way it liked.

All board members except JT Vogt agreed to approve it.

Vogt told the River Reporter that he voted no because the planning board had never before greenlighted an application without the homeowners association’s approval. 

David A. Isom, president of the Pyne Ayre Homeowners Association, said its deed restrictions prohibit commerce. “So I am just upholding what it says in the deed restrictions,” he said. “I don’t care either way.”

But Mogel stressed it’s up to the homeowners association, not the town, to decide if and how deed restrictions are enforced. The homeowners can hire an attorney to enforce the deed, he said.

Isom said the association has an attorney on retainer.

“Sure, there’s going to be a lawsuit,” Isom said. “And unfortunately, there’s also a bylaw that basically states that if a resident brings suit and the resident loses the suit, they’re going to be liable for all the legal costs. Not sure if they went back to their bylaws and read all that information.”