For two years, when commercialized "homes" are reported to the Town, there is zero enforcement of our zoning laws or occupancy limits. Wonder why? So do we. You'll find the complete code on the Town of Barnstable site here: https://ecode360.com/6558188
The current codes in Barnstable are diverse, district by district.
Nowhere does the law allow single family homes to be changed to transient lodging.
The Barnstable code also officially cares about neighbors. For example, it says "parking areas shall be screened from adjoining residential properties by a fence or dense plantings, not less than five feet in height."
Zoning law? New disclaimer says we don't know, hire a lawyer
HOW THE CASE BEGAN
It started with a murder at a residence whose owner routinely commercialized it on Airbnb, HomeAway, and Tripz. The murder is still unsolved.
The Massachusetts Land Court said "homes are expected to be used as residences, not for profit. Continuous rentals of a primary residence are contrary to the fundamental use of the home, as it leaves its primary residents without a place to stay," and "the continuing presence of the owner in the house ensures the continuity and supervision that are the essence of a single family district."
THE COURT OPINED ABOUT NEGATIVE EFFECTS ON NEIGHBORS
"From the neighbors' perspective," the court said, "it is all downside. The owner may not be there to experience the external effects of frequent short-term rentals — a constantly-changing cast of strangers in the building or neighborhood, unknown cars on the street, and the traffic and noise from parties (a not-infrequent purpose of AirBnB-type rentals, as evidenced by the incident that led to this case). But the neighbors are there to experience those effects, and may not be pleased. These effects are likely worse in non-owner occupied properties where the owner never lives there but instead rents it out in a continuous series of short term arrangements, calculating that the rental income will be higher than that received from longer-term tenants. This has a community-wide effect as well as effects on the immediate neighbors."
In 1908, zoning started establishing residential, commercial, industrial, and mixed-use areas. It replaced most nuisance laws, once the only way to keep things like slaughterhouses and tanneries out of neighborhoods.
Soon, zoning and planning became a profession.
Barnstable zoning is very thoughtful about how it makes room for residents (seasonal and year-round) and for tourists.
We have residential zones where only single family home use is allowed. And other zones where room rentals, bed and breakfasts, inns, and other commercial activities are permitted. No matter where you chose to buy a home, zoning gave you clarity and certainty that your neighborhood wouldn't suddenly or adversely change.
Researchers have studied tourists and "the locals" for years. Conclusions are easy to find on Google.
Tourists and residents do depend on one another. People who live in destination communities want tourism to thrive. And locals who support the place year-round make it somewhere worth visiting. The consistent conclusion? Locals and tourists come into conflict when they're forced into close proximity (unless voluntarily, in mixed-use zones).
The rise of Airbnb, Vrbo — and profiteers who buy homes in residential areas and run de facto, unstaffed and unsupervised hotels — create conflict.
Destinations have responded with consistent regulations, and with zoning and bans on investor-profiteers at the center.
These destinations continue to enjoy record-breaking tourism. Why isn't Barnstable following evidence and effective examples?
In its first pro-residential zone ruling, the Land Court affirmed a zoning board's finding that "...the [property owner] is essentially operating a commercial enterprise in a single-family residential zone." The court also said "weekly rental use is inconsistent with the purpose of a single-family residence district..."
In an April 2019 decision, Justice Donohue wrote : "The establishment of residential zoning districts has long been recognized as a valid exercise of a municipality’s police power. They serve to insulate areas intended for residential living from increased noise and traffic, protect children living there and their ability to utilize quiet, open spaces for play, and to maintain 'the residential character of the neighborhood.' Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 394 (1926). Non-family uses, including fraternity houses and boarding houses, have been found to be antithetical to the residential character."
Expedia's HomeAway and Airbnb, losing arguments that focus on the real issue of zoning, decided to try arguing the First Amendment. The court dismissed them out of hand. The law is about conduct, not speech, the court said. And conduct that turns residences into revolving door hotels is not allowed.
The platforms then went to the US Court of Appeals. They claimed that Santa Monica's home sharing ordinance — which requires that the place be one's actual home, and that one is there, actually sharing it — makes them unduly responsible for third-party content ofntheir websites. The Court said that Santa Monica's ordinance never said the platforms had to remove those illegal listings, only that they could not complete a transaction. Expedia and Airbnb replied: “common sense explains” that they cannot “leave in place a website chock-full of un-bookable listings!” Ah, that would suck for them. Too bad.
Palm Beach passed an ordinance that made online platforms responsible for the properties they list for rent, and for the de facto hotel taxes they promised local officials. The ordinance requires the firms to verify that every property they're going to list is registered with the tax collector’s office and has met the business and tax collection requirements. Palm Beach also expects these platforms to submit monthly reports of each property advertised, the property’s tax collector account number, the parcel ID number, the address, name of host, total number of nights rented, and amount paid per stay. Airbnb, valued pre-IPO at $38 billion, sued and said it's just too burdensome.
Last summer, Boston’s City Council and Mayor Marty Walsh passed an ordinance stopping absentee investor-owners from buying up real estate to establish de facto Airbnb hotels. Airbnb sued, saying it merely puts what users post online, and can't be held responsible for whether the posts are legal or not.
Airbnb is arguing that a new ordinance restricting how rentals are advertised online makes them unfairly responsible for content on its platform. Mayor Dan Gelber said platforms should, minimally, know they're renting where it's legal. He said Airbnb was suing “so they can continue to illegally rent in our neighborhoods.”
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