Internet rentals challenged

 CORNWALL — An Aug. 24 public hearing on an appeal of a ruling by the Cornwall zoning enforcement officer (ZEO) opened a compelling discussion that may be echoed across the region: How can or should towns regulate short-term rental properties?

About 25 people came to the Cornwall Library meeting room to hear details of a matter that has been playing out since January, when Cornwall Inn owners Stacy Marcin and Mark Hampson filed a complaint about private homes that were being rented out in a variety of ways and advertised online. 

ZEO Karen Nelson ruled there was no action to be taken since Cornwall’s zoning regulations do not address rental properties. There were no violations to be cited or special permits to be sought. 

Zoning Board of Appeals (ZBA) Chairman Don Bardot opened the hearing by announcing no decision would be made that evening so that members could give the matter careful consideration. The hearing was continued to the next regular ZBA meeting on Sept. 28. Comments will be accepted in the interim. 

The complainants and Nelson were each given 30 minutes to speak, and then 30 minutes were set aside for ZBA members to ask questions, and then 30 minutes was allotted for public comment. Only the the complainants and Nelson used their allotted time. 

 Five points against

With their two children seated next to them, Marcin and Hampson spoke of following their dream and investing their life’s savings in the inn they purchased in February 2004. They live there, have made improvements to the property and volunteer in the community in a variety of ways, they said.

They laid out five points, to which Peter Herbst, attorney for Nelson, responded later.

Point one was what they called a contradiction to the stated purpose of zoning regulations: to promote and conserve the health, safety and welfare of residents. They listed the many inspections they pay for annually to ensure the building, the water supply and so forth are up to code. 

Herbst later responded that the statement of purpose is a broad concept, not a specific regulation that can be enforced. He prefaced his remarks by noting Nelson’s extensive experience as a land use administrator here and in other area towns, and said the question at hand is only about whether or not she made a proper decision based on the current regulations.

Point two was their claim that renting out a home is a change of use that requires a special permit.

“If they are offering the same lodging services we are, then it’s a change of use,” Marcin said. “They are using their property to generate income on a regular basis, and we believe it requires a special permit. These are not just summer or seasonal rentals. One has a full website. We always thought there was a level playing field, that they were paying the same business taxes and are subject to the same inspections.”

Herbst responded that the only thing that is relevant is the use of the property. The user and how long they use it is not relevant, he said. What matters is that the dwelling is still being used as a dwelling, which is the case even with transient rentals.

Point three was their assertion that the Town Plan of Conservation and Development is being contradicted because it says that the town is supposed to support businesses and help them thrive. 

“This does the opposite,” Marcin said. “We went to the ZEO looking for help. We never thought we would be here defending our business.”

An “aspirational plan” is how Herbst described the town plan (which is a document prepared by the planning and zoning commissions in every town; it is required by the state and is updated every 10 years).

“The ZEO’s job is not to look at the regulations and whether or not they comply with the plan.”

Point four is that the town enables unfair competition for existing lodging businesses by allowing the rentals.

The Cornwall Inn and the Hitching Post Country Motel are the only regulated lodgings here. Marcin said that when they filed their complaint, there were 16 rental properties listed online, at sites such as AirBnB and VRBO.

Again, Herbst stressed that this is not within the ZEO’s purview. How zoning might affect economic development is something the Planning and Zoning Commission (P&Z) considers when it writes its regulations, he said.

Point five was that allowing unregulated lodging does not promote economic development.

“We disagree that this helps promote the town,” Hampson said. “Five other inns opened in the area since we did, but we welcome competition that is following the same rules.” 

The couple said they cannot compete with rentals that are cut-rate because they are not subject to the costs of a commercial establishment.

Herbst said that residential buildings are allowed in all zones, and that only B&Bs are required to be owner-occupied according to the zoning regulations. 

Highly significant is whether or not meals are served. A B&B or a rental offering room and board would signal a further look. 

“But there is nothing in the regulations that prohibits renting a room without board,” he said.

 No rules in other area towns

When Nelson spoke, she prefaced her statement by saying her experience in local land use goes back to 1996, and now includes regular contact with land use offices in the 24 towns in the Northwest Conservation District, where she is a consultant. She has worked in Cornwall since 2007, where she is called the land use administrator because she enforces inland wetland regulations as well. She clerks for both commissions.

“As ZEO, I am charged with enforcing the zoning regulations, plain and simple,” she said. “That is my job.”

She went on to give details of her investigation of the 14 rental properties named in the complaint. It included talking to property owners and checking online listings. Some she could not locate based on the information given. One named the wrong owner. Another is an accessory apartment that now has a special permit to comply with amended regulations.

The owner of a property operated as a B&B, when advised of the issue, changed her website and plans to seek a special permit. 

Other findings were properties no longer listed or intended to be rented; a mother-in-law room included in approved construction plans; a large home historically used as a boarding house, inspected by the building official and located in a business district; and one or two homes rented in their entirety for extended periods. 

She submitted into the record letters from the building official and town sanitarian that define homes rented in their entirety, for any length of time, as single family dwellings that are allowed in all zones without special permitting. A family is defined only as people who live together. 

The distinction is there are transient rentals used for lodging, and not as primary residences. But there are also many homes here leased as primary residences, and as the hearing went on, the issue of trying to regulate any of that continued to be raised.

Public comment was very limited. 

Cornwall Country Market owner James Shepard asked if water testing, at the very least, was being done at rental properties.

That was followed by a comment from resident Jane Bevans, who suggested it is the responsibility of property owners and renters to ensure safety.

 While ZBA can only rule on the appeal, comments made by members and the public called for a further look at the questions raised at the hearing. Marcin noted that the Internet has brought big changes, and “with the click of a button, one can become a business.” She distributed and asked that the town look at regulations enacted in Ridgefield, Conn., to address rentals.

They also suggested the town look to state agencies for guidance, such as the Department of Revenue services, which, Marcin said, requires an occupancy tax to be paid for stays less than 30 days.

ZBA alternate member Joanne Wojtusiak said that any changes to the regulations cannot be effectively addressed in a vacuum because similar rentals are offered in neighboring towns.

Hampson said they have checked with area towns and found that most do not address the issue.

 The only other comment from ZBA members was a written statement by Nancy Calhoun, a former B&B owner here, who supports the free enterprise of property owners being able to rent homes, and said the only thing that has changed here is the marketing that is available. 

However, she said she believes that anyone renting out a room for money is operating a B&B, and that those who play by the rules are at a disadvantage.

The Cornwall Inn posted a petition at www.ipetitions.com. At press time, it had 74 signatures and half as many comments, with the latter divided on both sides of the equation.