Planning Board Minutes

Town of Lenox

Planning Board

Board of Selectmen’s Meeting Room

June 26, 2018

Members present:  Chair Pam Kueber (PK); Kate McNulty-Vaughan (KMV); Kameron Spaulding (KS); Tom Delasco (TD)

Member absent: Deborah Rimmler (DR)

Staff present:  Gwen Miller, Land Use Director (GM); Peggy Ammendola, Land Use Clerk (PA)

Others present: Joel Williams of the Berkshire Record and Clarence Fanto of the Berkshire Eagle, who along with staff recorded the meeting. There were approximately 20 members of the public present.

Document from Howard Eisler presented before and during the meeting

The meeting was called to order at 6:05.

Discussion with Town Counsel Joel Bard on the Short-Term Rental bylaw being considered. To include recommendations to craft a sound bylaw, along with discussion of opinion on ‘grandfathering’ of current short-term rentals of entire dwellings.

Attorney Joel Bard of KP Law in Boston is an authority in municipal law specializing in land use and environmental law, including zoning. He has broad municipal law experience serving as town counsel to numerous Massachusetts towns.

Prior to the meeting, Board members submitted their questions to Attorney Bard on this topic.  Specifically they wanted to know how to create clarity in Short Term Rentals (STR) for an entire dwelling using key legal language and concepts involved to finalize a zoning by law.  At the July 10th meeting, the Board will begin working on that with the goal to present to the voters at the Town Meeting in November.  PK told that there would be an opportunity for members of the audience to ask questions, but she asked them to limit questions to legal issues. Comments and opinions relative to whether one is for or against a bylaw can be voiced at the July 10th meeting. 

The first question asked of Attorney Bard was that he explain grandfathering, i.e., what it is and how it is determined. He said that technically a grandfathered use is one that was in place legally before a zoning change. This is referred to as pre-existing, non-conforming and therefore the use is allowed to continue despite a later regulation.  Two examples were given. One is if a residence is built on a quarter of an acre, and later a zoning change resulted in lot sizes to be a minimum of ½ acre. This is a pre-existing, non-conforming structure.  The other example is a commercial use being in existence in a residential neighborhood. A subsequent zoning change resulted in it being zoned residential. The market could legally remain because it is a legal pre-existing, non-conforming use.

A use that was prohibited by the zoning bylaw would not be grandfathered. Attorney Bard would not interpret the zoning bylaw, as currently written, to allow someone to buy a structure sole for the purpose of renting it out week to week with no intention of ever moving in. This, he describes, would be a commercial use. He wanted it to be clear on what would be a protected non-conforming use and what would not. This is not a protected use.

Attorney Bard used an example of someone who has rented out 2 or 3 rooms for 2 or 3 decades that has been allowed under the bylaw and that if regulations changed, this would be a protected non-conforming use that has been permitted in the bylaw.  If that person now wants to rent out the whole house on a short term basis week to week, it would not be permitted as this would be an alteration or an expansion of a non-conforming use.  This would require a Special Permit.

Attorney Bard issued a legal opinion in 2014 that the zoning bylaws do not prohibit unrestricted short-term house rentals of entire dwellings.

Attorney Bard stated that a zoning bylaw becomes effective when approved at Town Meeting and by publication, i.e., when the public hearing of a proposed zoning bylaw is first published would be the effective date once the bylaw has been approved at the Town Meeting.  He referred the Board to Massachusetts General Laws, Chapter 40 A, Section 5 and Section 6.

KS provided the scenario of a property owner who has been renting rooms as allowed in the bylaw; renting rooms outside of the season noted in the bylaw; and not registering their property as the bylaw stipulated. He asked Attorney Bard if this use would be grandfathered. Attorney Bard responded: “Probably not.”

Attorney Bard was asked by PK how he came about his 2014 opinion. He responded that he looked at the bylaw and the different kinds of rentals allowed, e.g., the seasonal rental of rooms during Tanglewood season, absence of any more limiting language, etc. The overall view is that STR is a residential use. The purchase of a home solely for the purpose of STR of an entire dwelling is clearly a commercial activity. In 2016 the bylaw was amended to remove year round permission of renting of rooms. Up to that change, the renting of rooms year around that would be a classic non-conforming pre-existing use and therefore legal.  He referenced the bottom of page 2 of his January 22, 2014 letter to the Board of Selectmen regarding Regulation of Short-Term Rental of Dwellings which stated: “In light of this interpretation of the zoning bylaw, it is my opinion that there should be no Town-initiated zoning enforcement against owners of properties who periodically rent their dwellings for period of time less than 30 days in duration.” (There is a link to the letter “Bard opinion” on the April 10, 2018 agenda posted at lenoxplanningboard.com.)

TD asked Attorney Bard to clarify if the seasonal rental of up to 3 rooms, periodically, by one who owns a home that is their primary residence is a residential use. Attorney Bard answered in the affirmative.  To TD’s question that if someone vacates their primary residence to rent it week by week or weekend by weekend it would be a commercial use. Attorney Bard responded that it would not if it is done periodically.

KS sought clarification on “periodically”. Attorney Bard said that he would have to look at the facts before making an opinion. He advised the Board to amend the bylaw to answer the questions, i.e., quantify and qualify what is allowed and what is not allowed.

KMV suggested that there be a separate section to the bylaw with residential accessory uses with clear language. She believes that this issue of renting out or rooms or homes on a short term basis should be referred to an “accessory use” as it is not a primary use. 

PK said that she felt that the zoning bylaw clearly stated that the STR of dwellings was not allowed.  She referred to the definition of dwellings in the bylaw which states that a dwelling is a building occupied or suitable for occupancy as a residence…but not including commercial accommodations would be motels, tourist home and guest house.  Attorney Bard response to PK’s interpretation was that not all short term rentals of dwellings are “commercial” uses which would be the equivalent of motels or guest houses. In those cases, the commercial rental is the only use of the structure, but in many cases, the rental of rooms or the rental of the entire house is secondary and accessory to the residential use. 

PK referred to the May 16th letter from Attorney Jeff Lynch to Building Commissioner BJ Church in which he argued that a directive from the state's Executive Office of Health and Human Services required that inspection agencies and health departments "treat online home rental services for transient guests as a lodging house or bed and breakfast establishment.  Attorney Bard disagreed with Attorney Lynch.

PK asked about the Hull Decision, (Land Court in Lytle v. Swiec, Mass Land Ct. May 23 2017). Attorney Bard said that the property owner owned a parcel which had two legally existing single family dwelling units. The plaintiff resided in one and rented the other, with a minimum rental period of one week. The Building Commissioner determined that the homeowner was using his property for a commercial use in violation of the zoning bylaw. The property owner appealed, and the ZBA upheld the determination. The owner appealed to the Land Court which upheld the decision. This case does not set a precedent so each municipality’s bylaw will need to be looked at on a case by case basis.

The two versions of the draft bylaw and questions that have come up relative to the crafting of the bylaws were then discussed with Attorney Bard. First it was asked if the zoning bylaw could treat property owners/occupants differently based on the residency and to discuss equal protection and the rational relationship test and its relevancy to regulating STR. Attorney Bard responded in the affirmative.  Attorney Bard advised the Board to look at the public purpose of the bylaw, which would be to protect residential neighborhoods and the quality of life and suggested that they articulate several purposes. The question would be if there is a rational relationship between those purposes and require that they be resident/owner occupied. He said that in Amherst where the STR are allowed in certain building districts for 2 family uses only if one unit is owner occupied and that was challenged. The special permit imposed those conditions. The rational relationship was born out of police data that showed that there were more nuisance calls (90 + percent) from STR than those that were not owner occupied.  That is the rational relationship.

There are various ways to prove primary residency, e.g. voter registration, and state tax filings.

PK stated that some of the definitions and schedule of uses need clarification and asked Attorney Bard if he had any suggestions. He said that a reorganization of the schedule would be alright as long as there wasn’t anything substantive, but he suggested that the Board focus on the STR bylaw for now.

PK asked about adding language on inspections and licensing in the Town General Bylaw.  Attorney Bard said that he was in favor of making this as clear as possible and that all of the regulations should be in the general bylaw. This, he said, would eliminate any questions about grandfathering. KS said that the bylaw he constructed addresses the inclusion such language. 

The Board said that they have been asked by property owners if there could be a grace period and if so how that could be handled.  Attorney Bard that that a date could be included in the bylaw. 

The last question related to two sections of the zoning bylaw.  PK asked Attorney Bard if it is it was better going forward to explicitly include uses the town wants to allow and uses the town wants to prohibit and state these out accordingly e.g., should the wording “This is prohibited.” be included in the use table. Attorney Bard responded that 4.5 years ago when he wrote his opinion letter to the Board of Selectmen, no one was aware about the short term rental phenomenon, but said that if it occurs to the Board, they should go ahead and express it.

Public Comment:

Jim Biancola Main St. - He asked for clarification that anything not listed in the bylaw is prohibited. Attorney Bard agreed. Mr. Biancola also asked if a requirement that a property owner lives at that property “six months and a day” could be a part of the proposed bylaw.  Attorney Bard responded that it could be in the bylaw for this purpose as it goes back to the equal protection question and it is rationally related. He stated that this would be only for this context.  PK added that there is a definition in within the Accessory Dwelling Use portion of the bylaw and that she would want to be consistent within the bylaw. 

Beth Gamble 47 Hubbard St.-She asked if a property or owner was grandfathered.  Attorney Bard said that it would be the property, but if the use was discontinued for two years, it would be considered abandoned, i.e., no longer grandfathered.

Angela Lomanto-Innkeeper of Brook Farm-She asked for the bylaw’s definition of family. Attorney Bard said that a family is a group of people related by blood or no more than 4 unrelated people.

Attorney Jeff Lynch-51 Taconic Ave-He disclosed that he represents a number of innkeepers and B and B owners. He first cautioned the Board that there are now “Glam Camps” where people are using their property to set up tents for Airbnb rentals. PK said that in Section 5.2 H of the zoning bylaw there is a prohibition of boats, travel trailers, etc. for living, sleeping or housekeeping purposes. Attorney Lynch asked for Attorney Bard’s opinion related to his letter to the Building Commissioner, her cease and desist letter to homeowners who were engaging in STR activity. (This letter was subsequently withdrawn.) His question was with regards to the Building Commissioner doing an inspection or investigation before issuing a cease and desist or if it is the responsibility of the property owner to declare if they are operating STR full time or part time. Attorney Bard would not comment, but agreed with Attorney Lynch that the Zoning Board of Appeals could make the ultimate decision on periodic or full time.  

Jim Harwood 34 Walker-Cautioned the Board on taking away the rights of people. He asked about if grandfathering would apply to a property owner who has not advertised on the internet, but rather by word of mouth. Attorney Bard responded that the use is the same. Mr. Harwood asked how one could prove that they qualify for a grandfather status.  Suggestions by the Board included, but not limited to, testimony, affidavit, and state income tax filings. He asked about two homes on a lot with one being occupied by the owner and the other a rental and if that rental would be inherently commercial. Attorney Bard responded that this was the Hull case which was discussed earlier in this meeting. In that case, it was not a two family home, but two structures on a lot.

Susan Hoffman-She described a situation of one living in one house and 2 years later buys another house next door and it is now their permanent residence. The first house is now rented out as a Bed and Breakfast. She asked if the previous use of a primary residence would be considered grandfathered.  Attorney Bard responded that it would not.

Howard Eisler 850 Summer St.-He asked Attorney Bard if he had ever been overturned in Land Court of the State Supreme Court. Attorney Bard said that there were two cases where he was defending town boards and was overturned.  He was not asked for his opinion in those cases. Mr. Eisler asked Attorney Bard if action (STR bylaw) by the Planning Board resulted in a devaluation of property and loss of rental income and owners filed a lawsuit against the Town, would the Town be responsible and have to pay.  Attorney Bard said that the Town would not be responsible. Mr. Eisler asked questions about a home on a property zoned as resort and if it would be treated as a single family home. Attorney Bard stated that he was not familiar enough with the resort bylaw to answer this question. PK responded that the Board would take on the question and determine if this needs to be carved out.  Discussion ensued and KS stated that condominium associations have regulations which could be stricter than the Town. Mr. Eisler felt that with a restrictive bylaw people would buy in other communities who are less restrictive.

Susan Foulds Walker St. - She suggested that there be a list of activities and uses that are prohibited. 

Attorney Bard suggested the following language could read to the effect: The following uses shall be permitted, but it is not an inclusive list. This would be preceded by the current language which states that if it is not expressly permitted is prohibited.

Discuss next steps on Short-Term Rentals bylaw-

TD felt that the Board should categorize, stating simpler is better. KS said that the Board should work on the amendment to the General Bylaw as it would go together with the Zoning Bylaw. The former should then be presented to the Board of Selectmen. PK and KMV will work together on information provided tonight and then review with GM.  PK advised that the Planning Board meeting that had been continued to September 11, 2018 has been continued to September 12th due to Rosh Hashanah.

Discuss next steps on Master Plan-

Berkshire Regional Planning Commission and Harriman have made proposals and GM gave a quick review.  She asked the Board to weigh in on which approach they favored.  PK felt that Harriman produced a Master Plan that was “flashier & digestible” and BRPC had the data. She asked if perhaps the two could work together. KS preferred to go with BRPC as they were within a budget that the Town could afford.  His experience has been with other projects that those who offer something that was “flashier” do not give the project priority because of the Town’s budget. KS offered to take the BRPC plan and using their facts and data write the narrative and do the grafts and charts, etc. to make an attractive, digestible product provided it was no more than 40 hours.  GM said that there is a possibility for a grant matching program that might be offered in the fall. KS suggested that the Board go with BRPC and then in the fall apply if the grant program is available. It was agreed that at the July 10th meeting, the Board would have a concrete scope of work to decide on.

KS made a motion to adjourn. TD seconded the motion and the Board voted to adjourn at 8:15 PM.  

Respectfully submitted,

Peggy Ammendola