LENOX — As town planners forge ahead toward a proposal on how to regulate short-term rentals of entire houses via Airbnb and other online sites, a crucial public meeting is set for Tuesday with Town Counsel Joel Bard. The high-stakes controversy has stirred passions among many in the community.
Bard is expected to offer guidance to the Planning Board on how to craft a legally sound bylaw for presentation to registered voters at a Nov. 1 town meeting. A two-thirds majority is required for approval.
"The key goal of this meeting is to better understand how, very specifically, we can create greater clarity within our zoning bylaw when it comes to the short-term rentals of entire dwellings," Planning Board Chairwoman Pam Kueber told The Eagle on Friday. "The bylaw is a legal document, so we'll be discussing key legal language and concepts involved so that we can then move forward to finalizing a proposed bylaw, beginning at the following meeting July 10."
A formal, required public hearing on a new bylaw is expected Sept. 12.
The meeting will begin at 6 p.m. in the Select Board meeting room at Town Hall. Citizens will be invited to pose questions after the board's discussion with the town attorney. Questions also may be submitted in advance to Land Use Director/Town Planner Gwen Miller at email@example.com.
In a legal opinion issued in 2014, Bard of KP Law in Boston wrote that "although the town has a number of provisions governing the rental of 'rooms,' it is my opinion that these provisions cannot be read to restrict either the long- or short-term rental of entire dwellings."
In his memo to the Select Board, the town counsel asserted that there should be no town-initiated zoning enforcement against owners of properties who periodically rent their dwellings for less than 30 days. He restated those conclusions this past April.
Bard has recommended "grandfathering" current hosts of short-term rentals in entire dwellings or "accessory units" such as a carriage house or cottage, allowing property owners who were active in those rentals to continue. But health and safety inspections would be required under a proposed general town bylaw, a companion piece for the zoning revision.
Under this scenario, new hosts wanting to rent entire houses for under 30 days would need to register with the town and submit to inspections. Whether they would need a special permit from the Zoning Board of Appeals remains to be decided, Kueber said.
Seasonal short-term rental of one or two bedrooms would still be allowed by right, although town bylaws require a certificate of occupancy and an annual inspection. The town's traditional longer-term rental of entire houses for one month or more continues to be legal as a landlord-tenant deal and is not part of the current debate over new regulations.
A group of local innkeepers has argued that state and local regulations classify rentals of houses to short-term guests as commercial lodging businesses requiring an array of health and safety inspections as well as taxation at commercial rates. The innkeepers seek a "level playing field," pointing to the key role the inns play in a tourist town like Lenox, which gets $1.5 million a year in tax revenues from the hospitality industry.
Since the town's current zoning bylaw does not address brief rentals of entire houses, the practice is prohibited, according to some officials. Kueber, the board's chairwoman, cites existing zoning language that prohibits "any use not listed in the Schedule of Uses or provided for elsewhere in this Zoning Bylaw."
Kameron Spaulding, a Planning Board member, recently proposed a bylaw revision that would allow seasonal rental of rooms by right in all zones, but would require a special permit from the Zoning Board of Appeals in all zones for seasonal rental of an entire house which must be the owner's legal residence. The season is defined as Memorial Day to Labor Day, and then weekends only through Columbus Day.
"I think that come hell or high water, by Aug. 27 we'll have a consensus by this board," board member Deborah Rimmler suggested at a recent meeting. She was referring to the deadline for advertising a public hearing two weeks in advance, as required by the state attorney general.
"We'll throw it on the table and watch everybody jump up and down and go after it," she said. "If it requires some degree of discussion and further compromises, that gives us the time without feeling that our backs are against the wall and no one has a clue about what we're doing."
Rimmler also suggested a separate category "for mega-houses where people are having events, because I'd hate us to be driving a whole bylaw because of one house on Cliffwood Street that has big parties and 10 bedrooms."
Kueber argued for "the primacy of residential neighborhoods," pointing out that "commercial activity in residential zones" begs the question, "Why do we have residential zones?" She defined the role of the Planning Board as "to balance personal property rights with the good of everybody. You still have personal property rights to live in a residential neighborhood."
"We make hay while the sun shines, literally and figuratively, make some bank during the Tanglewood season," she acknowledged. "But looking at the impact of commercial activity, we have residential zones for a reason, because that's where we want people to be able to live, essentially in peace and quiet. I like that and I think we understand in the summertime it gets crazy, and everybody's making money."
But Kueber cited a feeling that "come Sept. 1, let's breathe again, let's get our residential neighborhoods back."
For short-stay home rentals, "it has to be your residence, because then it's home-sharing," said member Kate McNulty-Vaughan.
The board also discussed whether a proposed bylaw should be limited to the summer or allow more off-season flexibility to home-rental hosts. The members also debated whether there should be a cap on a certain number of rental days per year.
Board member Tom Delasco voiced concern over "the idea of giving up your whole house for the weekend, taking off, nobody's there, there's the safety aspect of it. The impact is much more, especially if the house is going to be filled with a family from four or five different locations. Now you have four or five cars in the yard, how do you handle all that?"
He also cited "`the ogre in the room,' the building code, which, like it or not, exists for life-safety purposes, basically to protect all of us from ourselves. That's why those regulations are there, they were written because of terrible disasters that killed people. ... The building code is subject to interpretation by the local building inspectors. Certain areas are black and white, but then there are others that are gray."
Clarence Fanto can be reached at firstname.lastname@example.org, on Twitter @BE_cfanto or at 413-637-2551.