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.