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Vacation Rental Property Creates Stir In Dunkirk

No Neighborly Dispute

Residents Dave Maternowski, left, and Phil Leone, right, view the town of Dunkirk Zoning Map. Photo by Anthony Dolce

DUNKIRK — Over the summer, town of Dunkirk residents, specifically those living on or near Woodlands Drive, have had to deal with an ongoing disturbance of sorts. A house in that neighborhood, located at 5186 Woodlands Drive, was bought at the end of 2020.

At the time, the residents thought the individual purchasing the property would be using it as a summer vacation home. However, over the summer, the residents began noticing strange behavior coming from this property on Woodlands. Residents like Dave Maternowski noticed some groups of people he didn’t recognize in their small neighborhood, and upon talking to them, learned they were visitors out of town using a Vacation Rentals by Owner (VRBO) property.

From there, the regular inhabitants of the neighborhood saw groups of people come in and out every weekend over the summer, with some groups as large as 10 people, who came with dogs. The group of neighbors realized very quickly that it was, in fact, not a family’s summer home, and was instead being used as a vacation rental property.

It would be one thing if the individuals using the rental property were peaceful and respectful, but the neighbors reported anything but. Phil Leone, a Woodlands Drive resident, said that the visitors would trespass on neighboring properties looking for black squirrels, bald eagles, and several other reasons that have proved to be disruptive. And when the residents first approached the town of Dunkirk for guidance, they were met with advice that didn’t suit them well.

“I was a little taken back as to the answer I received from Chairman (Richard) Purol when asked about what we should do when groups of strangers walk through our property,” said Maternowski. “His response was to confront them, see who they are, then call the authorities.”

As someone who travels, Maternowski didn’t want to put his wife in a situation where she was confronting groups of visitors, and calling the authorities to warn one group does not do anything for the group that comes into the neighborhood afterward. So ever since the summer months, this group of residents has pleaded their case to the Town Board.

And the Town Board’s interpretation of the local laws is where the main disconnect lies. Woodlands Drive is part of an R-1 residential district. According to the Town of Dunkirk’s zoning ordinance, an R-1 district is meant for single family dwellings. A family, as defined by the zoning ordinance, consists of up to three people in a unit, or four or more if they are living together as a traditional family.

The zoning ordinance also states that a unit where occupants act as separate roomers is not a traditional family, and the groups living in these districts have to be permanent and stable and the group can’t be “transient or temporary in nature.”

That last line seems to be the crux of the dispute between the residents and the elected officials. The zoning ordinance goes on to state that a transient guest is “a guest of a bed and breakfast whose stay is temporary and does not exceed 30 calendar days.” To the residents of the neighborhood, this language is clear cut. To the Town Board and Zoning Officer Ryan Mourer, it is anything but.

“My interpretation is that the language isn’t clear enough,” Mourer said at a previous meeting. “It’s the town board’s responsibility to clear up the language. And from there, where do they clean it up? Do they clear it up so it goes toward your request or do we clean it up to allow VRBOs. I don’t know what they’re thinking, but it won’t happen in the timeframe you’re hoping for. Unless someone can prove this language I’m reading is incorrect, we can’t stop her from doing this.”

During the October meeting, Mourer stated he would not act further on this, as he has made his interpretation that the language of the law isn’t clear enough for him to act, leaving it to the Dunkirk Town Board to further clear up the language. The Dunkirk Town Board has stated before that their zoning needs updating in several different areas.

The ambiguity that Mourer has stated exists should also work in favor of the Woodlands residents, in their opinion. According to the Zoning Ordinance, when a use is not specifically listed as permitted, even with a special permit or site plan review, “it shall be assumed to be a prohibited use unless it is determined, in a written decision by the Zoning Board of Appeals, that the said use is similar to permitted uses, meets the intent specified in the Zoning Law and is no inherently a nuisance, menace or danger to the health, safety or welfare of the residents of the municipality.”

The residents of Woodlands say they have nothing against short term vacation rental properties, with some of them saying they have used these services in the past. Their only issue is that they feel that this one is being allowed in a neighborhood where it shouldn’t be. There are places within the Town of Dunkirk where these types of rentals are allowed, such as the districts labeled as R-2 districts, that have special permits to allow these things.

Currently, the only allowable special use permit for R-1 districts is meant for essential facilities, though there are proposed changes to the zoning laws for R-1 districts that would allow bed and breakfasts and lodging houses, among other things, but the Town Board has not yet changed anything in that regard.

To this group of neighbors, it seems clear that this property is violating the zoning law. And even though Mourer has made his designation, the residents have used their rights to file a formal appeal, as they pitched in to hire an attorney to help them in this case. Right before Thanksgiving, from their attorney’s office, an eight-page letter was filed to the Town Board in an effort to appeal Mourer’s ruling. Their attorney, Colin Knoer of The Knoer Group in Buffalo, concluded what the residents themselves believe they know.

“Short-term rentals are not permitted in R-1 districts under the current language of the Town of Dunkirk Zoning ordinance,” the letter stated. “To the extent that one could claim that the zoning Ordinance is ambiguous, the Zoning Ordinance sets out a very specific procedure by which the Zoning Board of Appeals may determine that an unaddressed use should be permissible in any district. A reading of the Zoning Ordinance as a whole, considering the uses that are permitted only in other districts and the clear language of excluding transient occupancy from R-1 districts, cannot support a finding that short-term rentals are permissible in an R-1 district.”

The Woodlands residents brought up the possibility that certain members of the Dunkirk Town Board may have vested interest in owning a rental property, whether now or in the future, but Purol was quick to quell that notion. Further, Purol wanted to make it clear they are listening to their residents and are in the process of trying to determine what is best for the town.

“Nobody is taking anybody’s side one way or another,” Purol said. “There is nothing that our code enforcement officer said we could shut them down for. And we’re looking that over through zoning, and that’s where it stands. We’re not ignoring you, but there’s a procedure we have to do.”

At the end of the day, the residents of Woodlands Drive are looking out for themselves, but more importantly, they’re looking out for their neighbors. In their eyes, if this type of dispute can happen to them, it could happen to anyone, and they want people to be aware that if this does happen, it can be fought.

“We’re property owners,” said resident Jay Warren. “We’re doing what anyone else would do: Protecting our neighborhood and protecting our environment. We want to protect what we have.”

Although the rentals have seemingly stopped as the winter months have come, the residents continue to make their case clear to the officials of the town of Dunkirk. The next meeting of the Dunkirk Town Board is Tuesday, Jan. 18. There is currently no meeting set to hear the appeal of the Woodlands residents.

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