Clarence Fanto: On short-term rental flap, let's hope compromise isn't a lost art

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LENOX — Here's a story with a happy ending, at least for the moment. Wait for it.

If you're just tuning in, Lenox became embroiled in a legal battle last week pitting innkeepers and other concerned residents against property owners who use Airbnb, VRBO and similar sites to rent their entire homes to short-term guests for brief periods, less than a month.

Longer rentals, 30 days or more, continue to be perfectly legal and remain a long-standing tradition in town, accommodating Tanglewood performers and staffers, Shakespeare & Company members and many others needing summer digs.

The local lodging industry argues that residents offering houses to visitors for a brief stay are running a competing business without the overhead, health and safety inspections and higher taxes that inns must shoulder. The innkeepers, who make a major contribution to town finances through $1.5 million annually in local lodging taxes, are demanding an even playing field, and some of them have hired a local attorney, Jeffrey Lynch, to make their case.

A few residents have expressed concern about constant comings and goings at rental properties. They want to see regulations in place to preserve the tranquil character of their neighborhoods.

Evidence that investors are buying up moderately priced homes for the express purpose of running online rental businesses is another factor, since the town badly needs younger families to move in to the community to keep the schools filled as the year-round resident population grows older.

Some homeowners rent rooms, or entire houses, to help pay their taxes and expenses. Others might use the proceeds for a vacation or a new car.

The problem is that there's no clarity on what the town's zoning regulations should allow for short-term rentals as the Planning Board tries to craft a bylaw that would be supported by the necessary two-thirds of town meeting voters Nov. 1.

The board withdrew a bylaw proposal prepared for the May 3 annual town meeting despite 26 meetings and several hundred hours of discussion for a full year. Members said they felt "rushed" amid possible concern that their plan would not be passed by the voters.

As reported in The Eagle, 56 residential property owners began receiving "violation notices" two weeks ago signed by Building Commissioner BJ Church ordering them to "cease and desist the use of transient guests or short-term rentals" of their dwellings. "Any continued use of the dwelling for transient or short-term rentals will be considered an unlawful use," she warned.

Church's letter echoed the case made in a May 16 letter she received from Lynch, the attorney representing lodging proprietors.

It appears that nearly everyone in town involved in short-term rentals was caught off guard.

"Aggrieved" residents who received the ominous-looking orders were informed that they had 30 days from the May 24 date of the letter to file an appeal to the Zoning Board of Appeals through the town clerk. Several did just that.

In her "Dear Lenox Property Owner" letter, Church relied on an interpretation of state Department of Health guidelines describing online home rental services for transient occupancy as "substantially similar to lodging houses and bed & breakfasts such that they are subject to licensure and inspection."

She also asserted that the Lenox zoning bylaw "regulates such uses more stringently. A homeowner who rents their home to transient guests is operating a Motel. As such, only homes within the Commercial Zones can rent to transient guests upon issuance of a special permit."

My attention is captured by the legal opinion issued by Town Counsel Joel Bard in January 2014 and reaffirmed two months ago. Bard and his firm, KP Law, are among the acknowledged leaders in Massachusetts municipal law, representing more than one-third of the state's 351 towns and cities.

He wrote that the town's current zoning bylaws do not prohibit the unrestricted short-term rental of entire dwellings. Bard also emphasized that "there should be no town-initiated zoning enforcement against owners of properties who periodically rent their dwellings for periods of time less than 30 days in duration."

On Friday afternoon, Church called to say that she has withdrawn the warning letter and mailed her new decision to most of the residents targeted for enforcement.

"I was doing the best I could at the time," she explained, but now, "I've been able to verify that the property owners were not in violation because they're renting their entire dwelling."

She urged the Planning Board to come up with a zoning bylaw proposal to clarify the short-term rental issue once and for all.

"I was just doing my job," Church told me. "The process worked, I got a complaint and had to take action on it. I'd invite anyone to come walk in my shoes. I try to do it fairly, but there's no playbook and I'm following zoning bylaws to the best of my ability. It has been a very intense time."

Lee-Lenox Chief Administrative Officer Chris Ketchen acknowledged that "the rift in town is not good; the disruption speaks to the need for the Planning Board to make progress in their policymaking role and propose a clear policy direction for the town in the form of a zoning bylaw amendment."

"The longer that takes, the more anxious this process is going to be for residents, businesses, town officials and visitors," he cautioned. "That being said, if the future resembles the past, Lenox will embrace this opportunity to be a leader on this issue and I am confident that a well-crafted policy will be the end result."

One solution that occurs to me would "grandfather" property owners who have been using Airbnb to rent homes to visitors but would add registration and safety regulations to protect the public. Newcomers to the online rental game might need to seek a special permit in residential zones.

Let's hope compromise is not a lost art. After all, as Mick Jagger sang, "You can't always get what you want, but if you try sometimes, you just might find you get what you need."

Clarence Fanto can be reached at cfanto@yahoo.com or on Twitter @BE_Cfanto. The opinions expressed by columnists do not necessarily reflect the views of The Berkshire Eagle.

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