BROOKLINE, MA —A Brookline woman filed a lawsuit against the town, accusing the town of violating her right as a property owner when they made her shut down her short-term Airbnb rental last year.
« Based on their flawed interpretation of the zoning ordinance, the Board has decided to suppress a property right that Brookline residents have enjoyed since at least the mid-nineteenth century: the leasing of rooms in private homes on a short-term basis, » reads the lawsuit that names the town, the members of the Brookline Zoning Board of Appeals, the building commissioner, deputy building commissioner and building inspector.
Heleni Thayre has owned her three bedroom floor Euston Street since 1994. She has lived there since the 70s, according to court documents. Throughout the years, the 76 year old has rented out one of the rooms to help make ends meet. At one point in 2017, she had a bad experience and found Airbnb, which helps vet prospective renters, a safer option.
But last year, officials at the building department told her she was violating a local zoning law by running a lodging house without a special permit, and needed to take down her Airbnb listing or face daily fines of $1,000 and possible legal action, according to court documents. Thayre did what she was told, but appealed the Zoning Board of Appeals decision. It was denied.
So, acting as her own lawyer and with the help of her boyfriend, she filed the lawsuit in May. On Friday, the town filed filed a motion to dismiss the lawsuit calling it frivolous and for failing to state a claim.
Brookline’s building commissioner « exercised his authority in a manner … inconsistent with his mandate » and has « gone beyond what the legislature has authorized him to do, » reads the lawsuit, which is in federal court.
Brookline put a stop to short-term rentals — even when a homeowner lived in the same space — once the state legislature approved « An Act Regulating and Insuring Short-Term Rentals, » in 2018.
The act provides for a state registry of short-term rental operators, amending the local option room tax to allow municipalities to collect 6 percent tax on all short term rentals, creates a local option for an additional 3 percent community impact fee on certain types of rentals, and establishes safety and insurance requirements.
« Unless a legally permitted lodging house or hotel, short-term rentals are not listed as a permitted use in Brookline’s Zoning By-Law and are therefore excluded in all zoning districts, » according to the town website, which then points to a lawsuit out of Hull.
But the lawsuit accuses the town – from the building commissioner to the zoning board of appeals – of imposing a zoning ban on all short-term rentals, by requiring all « lodgers » in private homes to occupy units for a minimum of 30 days.
But according to court documents, the zoning ordinance does not mention a specific time limitation on rentals. Nor does the ordinance include the terms « short-term rental » or « long term rental. »
The way Thayre reads town law, the town ordinance allows homeowners to rent a room in their homes for an unspecified length of time. The only caveat she said the ordinance provided is that submitters don’t violate what is specified – the number of people listed in Permitted Accessory Use 51. That use allows homeowners to rent « no more than two rooms » or to « no more than two persons » as long as « no more than 4 unrelated persons » occupy a dwelling unit.
Use #51 was voted by a two-thirds majority into the Town Zoning Bylaw in 1962, in part to help widows and retired persons defray their housing expenses and in so doing to improve their ability to remain in their homes, according to the lawsuit. And it has not required a special permit for such rentals.
« Thayre’s concern has been that this decision would have a precedent-setting impact on all residents in Brookline, » according to her partner Chiuba Obele. « It would effectively remove a right that Brookline residents have enjoyed for close to 60 years. »
The proposed short term regulations are on the warrant for the annual town meeting in November. Although last year there were several meetings on the topic, there have been no public meetings or hearings since February. Several boards will begin discussing them in the coming months, the first of which will be the Chamber of Commerce which has a presentation on all business-related warrant articles on Sept. 23.
Salem Starts Short-Term Rental Registration
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