Lenox official sends 'cease-and-desist' letter to residential property owners in short-term rental flap

Lenox Building Commissioner BJ Church has sent a "cease-and-desist" letter to dozens of residential property owners who offer short-term rentals, touching off a legal battle in the popular tourist community.

LENOX — The town's building commissioner has sent a "cease-and-desist" letter to dozens of residential property owners who offer short-term rentals, touching off a legal battle in the popular tourist community.

The letters were sent to at least 56 residential property owners who offer lodging for fewer than 30 days through Airbnb, VRBO and other online sites.

Building Commissioner BJ Church ordered the homeowners, identified only by address, to either stop renting their properties to short-term visitors or "request inspection of property for compliance."

But attorney William Martin, of the Pittsfield firm Martin & Oliveira, is challenging the validity of the order, and he plans to file appeals on behalf of some of the residents.

"We believe that the Building Inspector acted prematurely by sending a broad and confusing letter to numerous members of the community," he told The Eagle in an email.

The flare-up comes just over a month after the town shelved a plan to regulate such rentals, which have caused a divide in communities like Lenox. Officials had planned to put the bylaw before voters at annual town meeting, but decided to wait until November.

The increasing popularity of sites like Airbnb has raised concerns among owners of more traditional inns and lodging who say they are facing unfair competition from homeowners who rent out rooms or entire houses but skirt the costs associated with oversight and regulation of the industry.

Several homeowners who contacted The Eagle and Town Hall said they were shaken by the letters, which were sent May 24 and began arriving after the Memorial Day weekend.

"Any continued use of the dwelling for transient or short-term rentals will be considered an unlawful use," Church warned, citing interpretations of state Department of Health guidelines and of the town's zoning bylaws.

She also cited an advisory opinion letter from local attorney Jeffrey Lynch of Lynch & Scrimo, who represents a group of property owners, including inns and bed-and-breakfasts.

She advised the property owners that, under state law, they can file an appeal with the Lenox Zoning Board of Appeals within 30 days of her warning letter. Otherwise, the violation order becomes final. The appeal notice must be filed with Lenox Town Clerk Kerry Sullivan.

"On enforcement matters, the building inspector is the sworn independent agent of the town," said Lee-Lenox Chief Administrative Officer Christopher Ketchen.

As a sworn public safety official, Church is under no obligation to be redirected by anyone, including town counsel or Town Hall leaders, on enforcement issues and alleged violations.

Church, who was conducting unrelated inspections Wednesday, did not return a message requesting comment.

The advisory letter by Lynch, dated May 16, argues that a directive from the state's Executive Office of Health and Human Services requires that inspection agencies and health departments "treat online home rental services for transient guests as a lodging house or bed and breakfast establishment."

Lynch demanded that Church, the building inspector for Lenox and Lee, enforce the Lenox zoning bylaws by issuing cease-and-desist orders against all homes used by transient guests.

"The facts are not in contention," Lynch said. He provided Church with a list of properties purportedly being used by homeowners who rent out their homes to short-term guests.

The orders were sent to local addresses identified by Host Compliance, a subscription website that tracks online rental listings. The Planning Board receives reports from the site for a fee.

Martin, representing some of the homeowners, assailed the action.

"Clearly, many of the property owners who this letter was sent to do not operate so-called short-term rentals. Properties on the list include Bed & Breakfasts, Inns and individuals who seasonally rent rooms as allowed under the zoning bylaw."

He argued that "the letter has the force of law and it should not have been sent without having investigated the actual use occurring at each individual property."

Referring to his clients, among others, the attorney contended that "many of the property owners have been placed in the untenable position of having to risk incurring fines and other penalties, incurring expenses to defend the clearly appropriate use of their property or forego important income."

"The best course of action would be for the Building Inspector to rescind the letter," Martin stated. Otherwise, he added, "property owners will have no choice but appeal to the Zoning Board of Appeals."

Martin predicted that "since the town's own attorney has confirmed that the short-term rental practice conforms to the current bylaw, it seems probable that the Board will follow that advice."

And he asserted that because the town's Planning Board has delayed presenting the issue to town meeting voters, "the Building Inspector's action seems misguided as it is both inconsistent with Town Counsel's opinion and sure to create uncertainty and hardship for a large group of residents."

Town Counsel Joel Bard of KP Law in Boston has ruled that the current Lenox zoning bylaws do not prohibit unrestricted short-term house rentals. Bard, who issued the legal opinion in January 2014, reaffirmed it in April in messages to Town Hall.

This helped prompt the Planning Board to withdraw a prepared zoning bylaw proposal to regulate and restrict short-term rentals from the May 3 annual town meeting agenda. The board is now aiming to craft a new one in time for a Nov. 1 town meeting.

One of the homeowners affected by the order is East Street resident Kelly Brown, who told the Select Board recently that he represents 25 short-term renters who received the warning letter. Brown speculated that Church's "dilemma is that the Planning Board has not acted to date in regulating or proposing regulations."

He contended that short-term renters don't compete with lodging businesses because they rent to families with young children, babies or dogs — people who can't stay in motels and B&Bs.

He urged the selectmen to become involved with the Planning Board efforts "to try to open up thought processes and move the process along."

"Good points," Select Board Chairman Kenneth Fowler responded.

Attorney Martin reinforced town counsel Bard's conclusion that the town's current bylaw does not bar short-term or long-term rentals and that there should be no zoning enforcement by the town against owners of properties who periodically rent their homes for fewer than 30 days.

He contended that the building inspector's "cease and desist order stating that short-term rentals are an `unlawful use' seems to make no distinction between whole house rentals for the entire summer season, or seasonal room rentals which are allowed by the bylaw."

Martin told The Eagle that the order "seems to suggest that it is unlawful for any homeowner in Lenox to rent their home" because the bylaw states "any use not listed in Schedule of Uses, or provided elsewhere in the zoning bylaw shall be deemed prohibited."

"It is unfortunate that the Building Inspector accepted the position of an interested party on such a controversial issue without more information and an unbiased legal opinion," he said.

Clarence Fanto can be contacted at cfanto@yahoo.com, on Twitter @BE_cfanto or at 413-637-2551.