ELDRED, NY — Highland’s new attorney pointed to a way to deny certain short-term rentals.

This represents a departure from the previous attorney’s insistence that the board had no discretion in turning away properly completed applications that met town code.

Wednesday night’s planning board meeting, like others before it, had residents objecting to the proposed short-term rentals on the agenda. The main point of contention was a house and five-acre property on Split Rock Road, in the Pyne Ayre development. Andrew Kinsey of Brooklyn purchased the property in 2021 and wants to rent it out, Airbnb style.

Gregory Barry, one of Kinsey’s neighbors, said he’s owned his Pyne Ayre home since 1996. “This is supposed to be a residential community,” he said, echoing the sentiments of his neighbors.

Pyne Ayre residents said their homeowners association (HOA) doesn’t allow short-term rentals. Kinsey disagreed. He called his deed and HOA restrictions “very vague.”

Kinsey supplied the River Reporter with a copy of Pyne Ayre’s articles of incorporation from 2006, which says, in part: “It shall be the responsibility of the Member to assure that all of the rules contained within the Association’s governing documents are adhered to by the Member and any of their tenants, guests, invitees, lessees, sub lessees or any other individual whose presence on the property of the Member or the Association was with the consent of the Member.”

“My good neighbor Gregory Barry should be familiar with this document since it was revised (which requires a majority member vote) 10 years after he bought his home,” Kinsey said in an email to the paper. “If he had a problem with it he’s had 18 years to push for it to be amended.”

The benefit of an HOA

Kinsey’s neighbors raised the same kinds of objections that the residents of Montgomery Lake did at the planning board’s December meeting. The Montgomery Lake residents said the security they’d always felt living in a residential neighborhood has been dashed, now that they were living among some 20 commercial accommodations and their absentee landlords.

But Montgomery Lake doesn’t have a robust homeowners’ association (HOA), while Pyne Ayre does. It was established in the late 1980s, and half of its 52 lots are developed, according to Pyne Ayre’s web page. The HOA has a board of directors and holds annual meetings.

This, said the new attorney, Steven Mogel, might conflict with the town’s requirement that a short-term rental be “in harmony with the orderly development of the district.”

Mogel at first said there’s nothing in the town’s short-term rental law that says HOA regulations or deed restrictions can block a rental. To address public alarm about quiet neighborhoods turning into profit centers, he suggested, “Raise this with the town board to change the law.”

Another neighbor, Gerard Finn of Hartung Road, said he fears what happened at Montgomery Lake will happen at Pyne Ayre. “There is overwhelming concern about short-term rentals,” he said. “You’re going to rubber-stamp everything despite overwhelming resistance.”

When Kinsey spoke about the ambiguity of his deed and HOA restrictions, planning board member Tim McKenna pushed back. 

“You knew the rules when you bought the property,” he said. “You moved into an HOA. They take precedence.”

When the Pine Ayre homeowners talked about enforcing their deed restrictions, the planning board chair, Jeff Spitz, said, “We have nothing to do with the HOA. We don’t supersede the HOA, which makes the determination.”

'Board should listen to neighbors'

Mogel said he has litigated cases like this, and they raise many questions such as, What does “commercial” mean? What if the owner doesn’t live on-site? Are short-term rentals effectively boarding houses?

While the planning board has no discretion to deny a completed application, he said, “They could and should consider what the neighbors have to say.” He said a short-term rental is more intrusive than granting a zoning variance.

Mogel said the board is entitled to consider deed and HOA restrictions and neighbors’ objections when deciding whether a short-term rental is “in harmony with the orderly development of the district.”

The previous attorney, Michael Davidoff, did not open the door to such a consideration. He said in December that the planning board was obliged to give a short-term rental a negative declaration as long as it will not harm the environment, and as long as it conforms to town code.

The previous planning board chair, Norm Sutherland, told the public that applicants were required to complete a 17-page application and undergo rigorous vetting. 

See related story: “Short-term rentals balloon in Highland.”

Editor's note: This article has been updated to include additional information from Andrew Kinsey.