Policy Wonk: Your Portland Airbnb is illegal

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Let’s begin with a fundamental proposition: owning property does not allow one to do whatever one wants with that property.

This is true in spite of the fact that doing something others in the neighborhood are not doing may be quite profitable.

In modern societies, larger community interests take precedence over individual profit making. To this end, zoning laws have been around for a century; they’re widely used in Maine and the nation, and consistently sustained in the courts. They limit what people can do with their property.

Zoning operates on the principle that the larger common good – the health, safety, and welfare of neighborhoods, of whole cities – is better protected if incompatible land uses of property are separated from one another.

Zoning prevents idiosyncratic (self-serving) uses of property by individual property owners, and protects the reasonable economic expectations that all property owners in a neighborhood/city have in their property.

Today, however, Airbnb threatens these larger social goals. It is a commercial (profit-driven) type of use that is often inconsistent with permitted uses in a neighborhood. Their number in Portland (close to, if not over 500) has increased dramatically over the last five years.

They are found in every corner of the city; they vary widely in size, and by who owns such a home, by the number of units at a single address, and by the facilities they provide. Sadly, however, Portland’s zoning code does not define or mention Airbnb.

The code does define similar profit-motivated commercial establishments catering to the short-term rental needs of visitors to Portland: bed-and-breakfast establishments, hostels, hotels, inns, lodging houses, motels, and tourist homes.

A cursory reading of these provisions and definitions makes clear there is no rhyme or reason, no consistency, no unifying thread of health or safety provisions to protect occupants of these establishments or the larger neighborhood.

For example, B&Bs and tourist homes may not exceed nine units, but the owner (or manager) of a B&B must reside on site; individual units may not have kitchen facilities; and only breakfasts may be served. No similar constraints exist for tourist homes, or for any of the other short-term rental types, except for inns; they may not provide individual units with kitchen facilities.

Hostels and lodging houses alone must provide common kitchen facilities; there is no mention of kitchen facilities for motels or tourist homes; inns and tourist homes are not required to provide on-site parking, as all other short-term rentals must.

Hotels, inns, and lodging houses may operate with, or without, providing meals, but the code is silent as to whether hotels and inns may provide common kitchen facilities, or whether hotels and lodging houses may provide individual units with kitchen facilities.

This morass of inconsistency among the various types of short-term rental accommodations defined in the zoning code is indefensible. Corrective legislation is long overdue.

That said, it seems clear that except for their profit motive, Airbnbs, though similar to short-term rental types defined in the present code, are not accurately defined by and cannot be equated to any of these rental types. A precise code definition is sorely needed.

This definition must take into account diversities within the Airbnb marketplace, e.g., the size of rental units, who owns Airbnb units (corporations or individuals), the number of units at a given site, the facilities provided, the duration of initial and repeat rentals, and the limitations, regulations, and costs justifiably imposed on those who would provide Airbnbs.

At this point, however, it is singularly important to note that Airbnbs, and all of the similar short-term rental types noted in the code (B&Bs, hostels, hotels, inns, lodging houses, motels, and tourist homes), are not a permitted or conditional use in any R-1, R-2, R-3, R-4, or R5A zone in the city.

Further, all of these zoning districts (which together contain most of the city’s residential housing stock) have an identical code provision that bluntly states: “Uses that are not expressly enumerated herein as either permitted uses or conditional uses are prohibited.”

Therefore, Airbnbs are prohibited – an illegal use of property – in all of these residential zones.

One may ask, why isn’t this widespread and illegal violation of the zoning code being addressed by the city’s code enforcement officer and/or corporation counsel’s office?

The assertion that the city manager can order city staff to not enforce the law – the present provisions of the zoning code (thereby allowing the illegal proliferation of Airbnbs) – is ludicrous. He has no such power. A City Council-passed moratorium to the same end is unlikely to withstand legal challenge.

In short, the city should amend the zoning code to deal with Airbnbs. Until it does, however, the present Code stands. It’s the law, and should be enforced.

Orlando Delogu of Portland is emeritus professor of law at the University of Maine School of Law and a longtime public policy consultant to federal, state, and local government agencies and officials. He can be reached at orlandodelogu@maine.rr.com.

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  • farmertom2

    I am unmoved by your position. I ask, “whose ox is being gored?” And if the answer is pretty much “why, no one’s at all,” then I will hew to my belief. Why rights clash– and this is clearly a case of that– you have to weigh benefits and harms. My neighbor renting out a room in his house on a weekend puts money in his pocket, saves money for his temporary tenant, and harms me not the least little bit. That’s a win-win-win. And your pesky rules that would interfere in that transaction serve no benefit to anyone.

    • Kristen Bifulco

      If your belief is that “if it does not hurt anyone – than allow it”, then rally and ask for an ordinance to allow short term rentals everywhere. What attorney Delogu is saying that if there is an ordinance – enforce it. He is not even commenting if the ordinance is good or bad, just giving his legal advice to the town, to enforce. If you think the law should be different, ask for a change, ordinances are not written in stone.

      • farmertom2

        Reasonable, but the default should be to allow something unless there is a reason not to– not to forbid something unless it’s proven to be safe (a path I would prefer when talking about, say, drugs)

  • Chew H Bird

    This article is complete BS. People have been doing short term rentals as long as people have had homes. The “issue” is the process by which short term rentals are contracted and the “problems” are created by the increase in volume of rentals, compunded by people who have little regard for the integrity of their neighborhoods.

    • EdBeem

      Rental properties should be in areas zoned for that purpose, licensed, insured, inspected and taxed.

      • Chew H Bird

        Why not just have a matrix of fines if neighbors complain and those complaints are substantiated? The only reasonable requirement that I can think of is to have sufficient insurance to cover any harm or damage. To view this as a regulatory and taxation opportunity is just plain slimy (regarding “small fry” home owners”. As for developers and large corporations, that is a different story.

  • truther

    “Zoning operates on the principle that the larger common good – the health, safety, and welfare of neighborhoods, of whole cities – is better protected if incompatible land uses of property are separated from one another.”

    Therein lies the problem. Delogu talks about “Airbnbs” as though they’re specially constructed, when in fact they are simply the existing property leased out in a slightly different manner but for the same use. There’s no such “incompatible land uses of property” when a single-family is inhabited by short term occupants rather than long term by the owner. You have the same number of people inhabiting the home at any given time, and doing the same thing.

    What if I buy a house in a residential Portland neighborhood solely to use as a weekend pied-a-terre? Or I take a six-month sabbatical and have a coworker occasionally house sit my empty home while I’m gone? What if I buy that house for my college-age child to live in, with a roommate, while they attend school? Or I buy it to renovate and then flip? Those are the kinds of things people do with homes all the time, and they’re much nearer to listing on Airbnb on the continuum of “land uses of property” than moving into the house you’ve bought and living there full time.

  • Edward Kearney

    I have 15 AirBnb units within 1/2 mile of my house. It’s a problem for exactly the reasons Delogu states. Wait until they become legal, ZOMBIE NEIGHBORHOODS!

  • Bowdoin81

    Question: Is this call for enforcement of existing law consistent with the columnist’s previous positions with, say, benefits for asylum seekers or homeless shelters?