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Summer home rentals — could they be illegal?
By Pru Sowers
Banner Staff
PROVINCETOWN – What if the town’s largest seasonal industry was illegal?
What if the estimated millions of dollars that change hands each summer between tourists and Provincetown homeowners renting out their residences violated local zoning laws? What if all the investors who purchased single-family houses and condominiums had to stop renting them seasonally? And what if the building department was put in charge of enforcing the bylaw, responsible for stopping hundreds of unregistered landlords from collecting rent money that often is needed to pay mortgages on their high-priced Provincetown real estate?
This “what if” scenario is not so far-fetched. An ongoing debate over whether it is legal to rent single-family dwellings seasonally has come to the surface again, challenging whether the town’s bylaws actually outlaw what is arguably the town’s largest industry.
Ginny Binder, a member of the Local Comprehensive Plan Committee, which wrote Provincetown’s master plan for land use and growth management that was approved at the 2000 Annual Town Meeting, and Anne Howard, a current member of the Provincetown Planning Board, have brought the issue up recently to town officials, hoping to bridge what they consider a gap between the town’s zoning and general bylaws. They are basing their argument on their interpretation of the laws, but are backed up by a 2001 opinion given to then-town manager Keith Bergman by town counsel Judith Cutler.
In that decision, Cutler, responding to an inquiry from Bergman, said she believed that weekly rental of single-family dwelling units was not a permissible use under the town’s zoning bylaws.
“In my opinion, the [zoning bylaw use regulation] schedule does not list any use category permissible in the residential or other districts of the town, which could be interpreted to include the rental of dwelling units on a transient basis. Therefore, it is my opinion that such use is prohibited under the bylaw,” Cutler, who is no longer a town counsel, wrote to Bergman.
Cutler was referring to section 2410 of the zoning bylaw, which sets out precise regulations governing the types of uses allowed in different residential and commercial districts in town. Nowhere in the so-called use table are short-term rentals listed. And that, according to Binder and Howard, means that seasonal rentals of single-family home residences, which include both stand-alone homes and condominiums, is illegal.
“There is no line item for short-term rental housing,” Binder said of the use regulation table. “If it’s not in there, it’s not allowed.”
“We go round and round on this one,” Howard said. “And it’s not just here in town. It’s up and down the Cape and all over. Block Island has a problem. Southern Connecticut has a problem.”
Some knowledgeable local officials disagree. Lynne Davies, a selectman and former chairman of the zoning board of appeals, pointed out that the town’s general bylaws, which are a separate set of local regulations, do allow short-term rentals of less than 90 days, requiring a $165 license and registration. Despite an apparent conflict between zoning and general bylaws on the topic, Davies took the opposite tact from Binder and Howard.
“If zoning laws are silent on it, there are no rules for or against it. It’s your home. You are allowed in most cases to do what you want,” she said.
However, the zoning laws appear on their face to contradict that thinking. Under section 2440 of the Provincetown zoning bylaw, it states, “No building or structure shall be erected, and no premises shall be used except as set forth in the Use Regulations Schedule.” The only reference to seasonal rentals that schedule makes under the residential use section is for boarding, lodging or tourist homes, which are different from single-family residences and are prohibited in the “residential 1” zones in town, which largely encompass the far west and east ends of town, including the Beach Point section of Provincetown.
Jonathan Silverstein, current town counsel, said Provincetown’s zoning bylaw is open to interpretation on the issue of whether short-term rentals of less than 90 days are legal. He said it comes down to the definition of a single-family residence versus commercial use. Using a single-family dwelling as a weekly rental unit may constitute a commercial use, particularly if the owner does not inhabit the residence at other times, as is often the case with units purchased as second homes.
“The question is whether seasonal rental is different from single-family residential use,” he said. “If a residence is rented week to week, then that’s something up to the town to decide. The courts generally look at past practice in towns.”
Because past practice in Provincetown – at least since the real estate boom that brought hundreds of new second home owners here – has been to look the other way on the private rental market, the practicality of enforcing the zoning bylaw is debatable. Matt Mulvey, acting building commissioner, said the state building code, which takes precedence in local municipalities, outlaws using residential units as lodging houses, which are defined as lodgings rented to four or more unrelated people. Under that definition, renting a privately owned house or condominium to more than four people not in the same family constitutes a commercial, not residential, use.
“If they’re unrelated and more than four, that’s something we could look at because then it’s a rooming house. To enforce that, I’d have to get proof. And if we started doing that, I’d need 100 inspectors to enforce it,” Mulvey said.
That seems to be the prevailing attitude. Howard Burchman, chairman of the Provincetown Planning Board, said he has “no intention of putting energy behind it because I don’t see any benefit to it.” Anne Howard, Burchman’s colleague on the planning board, said she would need specific direction and commitment from selectmen and the town manager before bringing it up again. And if the town did decide to crack down on private short-term rentals, the impact would be something that no one wants.
“It will strike terror into the heart of anyone who has bought a condo in this town, and that would have a negative impact on our economy,” Burchman said.
“If adapted, it would drastically change things in town,” added Silverstein. “Is that something the town wants?”
Nick Brown, owner of Thomas D. Brown Real Estate, which sells and rents properties on the Outer Cape, agreed that the zoning law probably prohibits short-term rentals. As easy fix would be to add language to the zoning bylaw including seasonal rentals on the permitted use list, he said. While summer rentals handled by Thomas D. Brown account for only 10 percent of its total revenues, there are other real estate firms which see summer rentals as a major source of revenue.
“There are some real estate firms where rentals are all they do. It would put them out of business,” Brown said.
“It would be instantaneous market value decline,” added Bill Dougal, co-owner of Pat Schultz Real Estate. “A lot of people depend on paying their mortgage in part through summer rentals. It would mean higher taxes and a downward economic impact on the town.”
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Oct 18th, 2007