FILED: ERIE COUNTY CLERK 02/26/2014 INDEX NO /2014 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2014

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1 FILED: ERIE COUNTY CLERK 02/26/2014 INDEX NO /2014 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2014 STATE OF NEW YORK SUPREME COURT ERIE COUNTY ROBERT FAHNING and ANNE FAHNING, THOMAS BURKE and NANCY SAVOY, GLENN WALLACE, vs. Plaintiffs, SUMMONS Index No. DOUGLAS LEARMAN as the BUILDING INSPECTOR OF THE TOWN OF GRAND ISLAND, NEW YORK, and THE TOWN OF GRAND ISLAND, NEW YORK, Defendants. TO THE ABOVE NAMED DEFENDANT(S): YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with a summons, to serve a notice of appearance on the plaintiff's attorney(s) within twenty (20) days after the service of this summons exclusive of the day of service, or within thirty (30) days after completion of service where service is made in any other manner than by personal delivery within the State. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Erie County is designated as the place of trial on basis of the location of the offices of the defendants. Dated: February 26, 2014 Buffalo, New York LAW OFFICE OF BRUCE S. ZEFTEL s/bruce S. Zeftel By: Bruce S. Zeftel, Esq. Attorneys for Plaintiff 4043 Maple Road Suite 104B Buffalo, New York (716) LAW OFFICE OF JOHN J. DELMONTE John J. DelMonte, Esq. Attorneys for Plaintiffs 2706 Pine Avenue - PO Box 2146 NMS Niagara Falls, New York (716)

2 STATE OF NEW YORK SUPREME COURT ERIE COUNTY ROBERT FAHNING and ANNE FAHNING, THOMAS BURKE and NANCY SAVOY, GLENN WALLACE, COMPLAINT vs. Plaintiffs, Index No. DOUGLAS LEARMAN as the BUILDING INSPECTOR OF THE TOWN OF GRAND ISLAND, NEW YORK, and THE TOWN OF GRAND ISLAND, NEW YORK, Defendants. Plaintiffs, Robert Fahning, Anne Fahning, Thomas Burke, Nancy Savoy, and Glenn Wallace by their attorneys, The Law Office of John J. DelMonte and The Law Office of Bruce S. Zeftel, for their complaint against the Defendants above-named allege as follows: 1. Plaintiffs Robert Fahning and Anne Fahning are husband and wife who reside in Grand Island, New York and are the owners of property commonly known as 2012 E. River Road, Grand Island, New York. 2. Plaintiffs Thomas Burke and Nancy Savoy are husband and wife who reside in Grand Island, New York. Thomas Burke is the owner of property commonly known as 2989 Staley Road, Grand Island, New York. Thomas Burke and Nancy Savoy are the owners of property commonly known as 3488 Greenway Road, Grand Island, New York. 3. Plaintiff Glenn Wallace is an individual who resides in Grand Island, New York and is the owner of properties commonly known as 2124 E. River Road, Grand Island, New York and 1900 E. River Road, Grand Island, New York. 2

3 4. Upon information and belief, Defendant Douglas Learman is the Building Inspector ( Building Inspector ) for the Town of Grand Island, New York. 5. Upon information and belief, Defendant Town of Grand Island ( Town ) is a municipal corporation with the principal Town Offices at 2255 Baseline Road, Grand Island, New York This action is brought for declaratory relief declaring regarding the real property herein and directing that the five (5) Properties (collectively, the Properties ) described in this complaint are not Tourist Homes as defined by Section of the Town of Grand Island Code; cannot be classified as Tourist Homes under Section of the Town of Grand Island Code; are not covered by Chapter 351 of the Town of Grand Island Code; that such regulation has no application to the Properties described herein, and declaring and directing that the Plaintiffs may lawfully continue to rent the Properties in the manner described herein without interference from Defendants and without the need for a license E. RIVER ROAD - ROBERT AND ANNE FAHNING E. River Road, Grand Island, New York, owned by Plaintiffs Robert and Anne Fahning, is a single-family 5-bedroom detached dwelling situated in an R1B zoning district. 8. The property is offered for short-term rental by the Fahning s, with the shortest allowed term being three (3) nights. 9. The Fahning s do not occupy the property and do not use or customarily use the property as a residence or a dwelling unit, nor is there an on-site proprietor. 10. The Fahning s do not rent the property for single overnight accommodations and the property is not open to the general public. 3

4 2989 STALEY ROAD - THOMAS BURKE Staley Road, Grand Island, New York, owned by Plaintiff Thomas Burke, is a single-family 3-bedroom detached dwelling situated in an R1 zoning district. 12. The property is offered for short-term rental by Thomas Burke with the shortest allowed term being three (3) nights. 13. Thomas Burke does not occupy the property and does not use or customarily use the property as a residence or a dwelling unit, nor is there an on-site proprietor. 14. Thomas Burke does not rent the property for single overnight accommodations and the property is not open to the general public GREENWAY ROAD THOMAS BURKE AND NANCY SAVOY Greenway Road, Grand Island, New York, owned by Plaintiffs Thomas Burke and Nancy Savoy, is a single-family 3-bedroom detached dwelling situated in an R1E zoning district. 16. The property is offered for short-term rental by Thomas Burke and Nancy Savoy, with the shortest allowed term being two (2) nights. 17. Thomas Burke and Nancy Savoy do not occupy the property and do not customarily use the property as a residence or a dwelling unit, nor is there an on-site proprietor. 18. Thomas Burke and Nancy Savoy do not rent the property for single overnight accommodation and the property is not open to the general public E. RIVER ROAD GLENN WALLACE E. River Road, Grand Island, New York, owned by Plaintiff Glenn Wallace, is a single-family 4-bedroom detached dwelling situated in an R1B zoning district. 4

5 20. The property is offered for short-term rental by Glenn Wallace, with the shortest allowed term being two (2) nights. 21. Glenn Wallace does not occupy the property and does not customarily use the property as a residence or a dwelling unit, nor is there an on-site proprietor. 22. Glenn Wallace does not rent the property for single overnight accommodations and the property is not open to the general public E. RIVER ROAD GLENN WALLACE E. River Road, Grand Island, New York, owned by Plaintiff Glenn Wallace, is a single-family 5-bedroom detached dwelling situated in an R1B zoning district. 24. The property is offered for short-term rental by Glenn Wallace, with the shortest allowed term being two (2) nights. 25. Glenn Wallace does not occupy the property and does not customarily use the property as a residence or a dwelling unit, nor is there an on-site proprietor. 26. Glenn Wallace does not rent the property for single overnight accommodations and the property is not open to the general public. CODE DEFINITION OF TOURIST HOME AND BED AND BREAKFAST 27. Grand Island Code Section defines a Bed-And-Breakfast and Tourist Home similarly as follows: Any private dwelling or dwellings customarily used as a residence which regularly or seasonally offer overnight accommodations to tourists or transients. 28. The Grand Island Code has no further definition of Tourist Home other than that in Section

6 property: 29. In order to meet the definition of a Bed-And-Breakfast and Tourist Home a Must be a private dwelling. Must be customarily used by an owner as a residence. Must be offered for single overnight accommodations to tourists and transients, and be open to the general public. 30. This three prong definition is consistent with the common definition of a Tourist Homes as a private home(s) with rooms for rent, usually for one night, to tourists, travelers (see Similarly, Grand Island Code Section defines a Bed and Breakfast as An owner occupied private single-family dwelling customarily used as a residence 32. Again this is consistent with the common definition of a Bed and Breakfast as an an accommodation offered by an inn, hotel, or especially a private home, consisting of a room for the night and breakfast the next morning for one inclusive price (See reference.com/browse/bed-and-breakfast). 33. Pairing the Tourist Home with Bed and Breakfast shows the intent of the ordinance to sweep in the owner/proprietor occupied residence where rooms are separately rented on a single overnight basis to the transient public. THE TOWNS NOTICES OF VIOLATION 34. In or about November 4, 2013 the Building Inspector sent similar letters to each of the Plaintiffs captioned as Notice of Violation Order to Remedy. 35. In the letters the Building Inspector characterized the Properties as Tourist Home(s) subject to Chapter 351 of the Town of Grand Island Code, claimed that the Properties required licenses to be rented on a short-term basis, and claimed that the Town Zoning Code 6

7 does not allow for short-term rentals of the Properties in the R1 zoning districts in which the Properties are located. 36. As a matter of fact and law, the five (5) Properties are not Tourist Homes as defined in Chapter 351 of the Town of Grand Island Code and as alleged by the Building Inspector and nothing in the Town of Grand Island Code prohibits the short-term rental of singlefamily detached dwellings in any zoning district. 37. This justiciable controversy requires the Court to declare the rights, obligations and other legal relations of the parties pursuant to CPLR FIRST CAUSE OF ACTION 38. The above paragraphs are repeated and realleged. 39. The Properties are similarly situated as to Grand Island Code Chapter 351 and the Zoning Code of the Town of Grand Island Code. 40. The Properties are single-family detached dwellings as that term is defined by Grand Island Code Section The Properties are not owner occupied and are not customarily used by the Plaintiffs as residences. 42. The Properties do not have on-site residents or proprietors. 43. The Properties are not rented for single overnight accommodations, and are not open to the general travelling public. 44. The Properties are owned and held for rental of the entire structure, and not merely single rooms, with the prospective renters agreeing in advance to rental terms and conditions in writing. 7

8 45. The Properties are neither Tourist Homes nor Bed and Breakfasts as those terms are commonly understood or defined in the Grand Island Code. 46. The Town of Grand Island Code does not proscribe or prohibit short-term rentals of single-family detached dwellings in the R1 zones, or otherwise, and such structures may be rented without a license from the Town. 47. The short-term rental of these single-family detached dwellings does not transform them into Tourist Homes as claimed by the Town and the Building Inspector. 48. The Plaintiffs renting of the Properties on a short-term basis under the facts described herein is in all respects lawful, does not implicate the rules applicable to Tourist Homes or Bed and Breakfasts, does not require a license, and is not prohibited by the Grand Island Zoning Code. 49. The Court must so declare. 50. Based on the foregoing, Plaintiffs demand judgment as set forth below. SECOND CAUSE OF ACTION 51. The above paragraphs are repeated and realleged. 52. Upon information and belief the Town is in the process of attempting to amend the Town of Grand Island Codes to sweep in the Properties under a new definition of Tourist Home or to otherwise prohibit or limit the short term rental of single-family detached dwellings. 53. If that should happen, the Plaintiffs request a declaration by this Court that the Properties and rental thereof may continue as legal nonconforming uses and structures as that term is defined by Grand Island Code Chapter 407, Article XXIII or otherwise under the common law of the State of New York. 8

9 WHEREFORE, Plaintiffs Robert Fahning, Anne Fahning, Thomas Burke, Nancy Savoy, and Glenn Wallace demand judgment against the Defendants declaring and directing: That the Properties described herein are not Tourist Homes or Bed and Breakfasts as defined by Section of the Town of Grand Island Code; That the Properties described herein are not and cannot be classified as Tourist Homes or Bed and Breakfasts under the Grand Island Code; That the Properties described herein are not subject to Grand Island Code Article 351 and that Grand Island Code Article 351 has no application to the Properties described herein; That the short-term rental of the Properties described herein is in all respects lawful and not prohibited by the Grand Island Code; That the Plaintiffs may lawfully continue to rent the Properties herein on a short term basis without interference from Defendants and without the need of a license from the Town; That if the Grand Island Code is amended as set forth in the Second Cause of Action that the Court declares the use and structures herein as a legal nonconforming use and legal nonconforming structures. That the Court grant such other and further relief as the court deems proper, including costs and attorneys fees. DATED: February 26, 2014 Buffalo, New York LAW OFFICE OF BRUCE S. ZEFTEL s/bruce S. Zeftel By: Bruce S. Zeftel, Esq. Attorneys for Plaintiff 4043 Maple Road Suite 104B Buffalo, New York (716) LAW OFFICE OF JOHN J. DELMONTE John J. DelMonte, Esq. Attorneys for Plaintiffs 2706 Pine Avenue - PO Box 2146 NMS Niagara Falls, New York (716)