Rinaldo Del Gallo III: Lenox's problematic short-term rental bylaw

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PITTSFIELD — Under the proposed short-term rental Lenox bylaw, "up to two bedrooms in a dwelling unit may be rented year-round by right provided that the owner or tenant is occupying the dwelling unit at the time of the rental." Presumably, bedrooms may not be rented at all if the owner or tenant is not occupying the dwelling unit. In other words, literally, the very same use is allowed by one type of owner (an owner occupying the dwelling unit), but not another type of owner (one who does not occupy the dwelling unit where bedrooms are being rented). Because there is identical use and intensity and the only thing that differs is the type of owner or renter, it is hard to view this as mere regulation of use and not ownership.

The other provision suffers from the same problem. Suppose there is a duplex or land with two houses on it but with separate owners for each dwelling unit. Under the rule regarding "dwelling units being rented in their entirety," "an entire dwelling unit may be rented up to 75 days per calendar year by right," and "an entire dwelling unit may be rented for an additional 35 days (up to 110 days) per calendar year by Special Permit." But then suppose there is unity of ownership and one person owns the entire duplex or both houses. In that case, "the above totals apply to the entire parcel" and "the day limits defined above shall be apportioned among those dwelling units." A town can regulate the number of days a short-term rental may be utilized under the newly passed statute: but this additional restriction based on who owns the premises is a regulation of ownership and not use.

Lenox residents or their guest can park in the street. But if you are renting a short-term rental, "All overnight parking must be within the property's driveway or garage." If you own or rent property, so long as you get the right permits, you may entertain on your property. But if you are a short-term renter, "events that include tents or amplified music or which would customarily require a license or permit are not allowed."

Back around 1905, when Home Rules was put into the Constitution, towns could pass their own bylaws, so long as there was no regulation of a civil relationship unless it was an incident to a legitimate municipal power. This meant, among other things, zoning laws had to regulate use and not ownership. It is now a fundamental principle of Massachusetts zoning that it deals basically with the use, without regard to the ownership of the property involved, or who may be the operator of the use. This bylaw appears to violate this fundamental tenet.

By way of example of the you-may-regulate-use-but-not-ownership rule, it has been held that a city did not have authority under the Massachusetts Constitution to pass an ordinance that affected the civil relationship between tenants and their landlord, who wished to convert their rental units to condominiums. In another case, a municipal ordinance which restricted a landlord's ability to terminate a lease and remove his property from the rental market in order to sell it was invalid. Under the same rule that one can regulate ownership and not use, it was held in 1970 that rent control in the town of Brookline, passed under the Home Rules Amendment, was a regulation of a civil relationship and not an incident to a legitimate municipal power.

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Back during the Ruberto administration, I wrote a legal opinion for a Pittsfield residential group that wanted to prevent the property at the former Ponterill/Camp Sumner facility from turning to time shares by adopting a zoning ordinance, where I opined that a zoning ordinance regulating time shares is a regulation of use and not ownership. But I do not feel as sanguine about this proposed bylaw since the very same activity, and as importantly, with the same impact or intensity of use, is being outlawed.

I have looked at the new Massachusetts statute authorizing local regulation of timeshares. Disturbingly, it defines a "short-term rental" as an owner-occupied, tenant-occupied or non-owner occupied property including, and then does not seem to provide ability to treat these units differently. The statute defines "operator" to mean, "a person operating a bed and breakfast establishment, hotel, lodging house, short-term rental or motel in the commonwealth including, but not limited to, the owner or proprietor of such premises, the lessee, sublessee, mortgagee in possession, licensee or any other person otherwise operating such bed and breakfast establishment, hotel, lodging house, short-term rental or motel." Treating these different types of operators (hotels, bed & breakfast, lodging houses etc.) seem to be a permissible "regulating the class of operators," which the state statute does permit, but not who owned the short-term rental, or whether they live on the premises.

Apart from legality, the proposed Lenox bylaw may be a salutary law. But Airbnb is wealthy company fighting for its corporate life, and has instituted litigation in Boston challenging Boston's new ordinances. Is Lenox next?

Rinaldo Del Gallo III

is a local attorney.


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