GENEVA — Last spring, city officials notified 16 landlords that they define a family as “people related to each other by blood, marriage or adoption.” That definition means landlords cannot rent to one or more unrelated college students without obtaining a special permit, inspection, site plan and architectural review.
The landlords took the city to state Supreme Court of Ontario County, and the matter could be headed for a trial.
On Dec. 4, Judge William Kocher denied the city’s motion to dismiss the lawsuit and upheld a preliminary injunction sought by the landlords, stopping the city from enforcing its regulations on college student rentals. Kocher has scheduled a trial for an unspecified date this spring — unless the issue can be resolved outside of court.
Local attorney Murray Heaton, who is not involved in the legal action, would like to see the matter resolved without going to trial.
Heaton addressed City Council Jan. 7, saying he has been retained by one of the landlords, Chad DeBolt, to explore a non-judicial resolution. DeBolt is a principal in TDash LLC, TDash2 LLC, TDash3 LLC and TDash4 LLC. The New Jersey-based company owns rental properties at 84 and 87 Madison St.; 61, 148 and 154 Hamilton St.; 44 Cortland St.; 43 Delancey Drive; and 561 S. Main St.
Those properties are in MR or MR-HD zones; the former stands for multi-resident, while the latter designation includes a high-density tag.
“He and his companies have invested a lot in rental properties and have questions about the status of student housing in light of letters he received from [Planning and Zoning Coordinator] Neal Braman and others from the city in April saying student housing has a new interpretation where it is not permitted without a special use permit and architectural review,” Heaton said.
The March 26, 2013, letter to several property owners stated the following:
“It has come to our attention that you intend to house students for the 2014-15 school year. This type of use is classified as a congregate living facility per the New York State Uniform Codes and is a permitted use for the zoning district that it is located. But because it has changed the intended use and occupancy, it will require an application for a special use permit to the Zoning Board and a site plan and architectural review by the Planning Board.”
Once that is done, Braman said the city Fire Department would inspect the premises so that an operating permit allowing the building to be legally occupied can be issued.
Heaton told Council the landlords hired the Woods Oviatt Gilman law firm of Rochester to file the litigation and try to negotiate a resolution.
“Negotiations were not successful, and they sued the city June 24,” Heaton relayed.
In denying the city’s motion to dismiss the lawsuit and upholding the preliminary injunction sought by the landlords, Kocher also ordered pretrial discovery and trial dispositions to be completed on or before April 1. He noted the parties should be ready for trial by April 30 “unless resolved without further court intervention and is stricken from the calendar.”
Heaton reiterated the landlords’ wishes to avoid a trial.
“The landlords would like to explore an alternative way to address this issue,” Heaton said. “It’s complicated and involves issues of student housing in neighborhoods. I’m not sure the best use of everyone’s resources, including the city’s, is pursuing litigation. I’m here to offer to help resolve this, and I urge you to consider the offer.”
The landlords’ complaint was filed June 25 and lists the city, the City Council, Horn, Braman and Fire Chief Michael Combs as defendants.
It sought declaratory judgment that the city’s definition of a family in Section 350-2B and its restriction of occupancy for one-family, two-family and multi-family dwellings to people related to each other by blood, marriage or adoption is “arbitrary, irrational and has no rational connection to the stated purposes of the zoning code.” It also claims the city’s action violates requirements of due process and violates Article I of the state Constitution.
In addition to the TDash companies, other plaintiffs are:
• Hongxia Jiang and Zhilian Wang of Pittsford. They own rental properties at 69 Monroe St.; 243 Pulteney St.; and 56 and 76 Hamilton St.
• Christian Malchoff of Phelps and Keith Malchoff Jr. of Yuma, Colo. They co-own 78-80 Argyle St.
• High Country Properties of Phelps, owner of 6 Beacon St. and 24 Argyle St.
• 168 Hamilton St. LLC of Gladwyn, Pa., owner of 168 Hamilton St.
• 88 Monroe LLC of Gladwyn, Pa., owner of 88 Monroe St.
• Shawn McCann of Geneva, owner of 93 and 98 William St.; 26 Pine St.; 195 Pulteney St.; and 365 S. Main St.
• Maureen Bechtold of Lockport, owner of 106 Hamilton St.
• Robert Bechtold of Lockport, co-owner of 68 and 202 Hamilton St.
• Sacpro of Simpsonville, S.C., owner of 72 Hamilton St.
• LMNH Kids LLC of Lockport, owner of 10 Delancey Drive.
The landlords claim the city has targeted property owners renting to students.
The Harris Beach law firm represented the city and responded to the plaintiffs’ complaints.
Horn said Council suggested city officials work with the landlords to seek a delay of the trial so they can try to schedule a discussion “about the city’s concerns relative to this kind of occupancy in buildings and neighborhoods not designed to support it.”
“The general idea is if a solution can be reached without litigation, that is better for all involved,” Horn said.
He said the state uniform code generally defines an aggregate living facility as the renting of multiple rooms in a building that shares either a kitchen or bath or both.
“This is considered a high-intensity residential occupancy, more closely aligned with those residential uses in zones permitting multi-family residences,” he said.
Horn said the city contacted landlords preparing to use their houses this way.
“Changes of occupancy requires Planning Board review in zones where the occupancy is permitted,” Horn stated. “Landlords in those zones were encouraged to contact the city to schedule reviews. In areas where this occupancy is not permitted, landlords received notice to that effect.”