Selectboard's short-term rental bylaw proposal a NIMBY sham - theberkshireedge.com

To the editor:

I should start by saying that I have no horse in the race to the extent that I do not have any short-term rentals (STRs) and am not likely to in the future. On the other hand, as a lifelong resident and property owner in Great Barrington, I have a keen interest in fostering a vibrant community where people can live well and work together to solve vexing problems that undermine the health of the community.

Initially, the proposal for a short-term rental bylaw seemed to be prompted by a legitimate concern that Airbnb and Vbro rentals were displacing local residents by driving the conversion of traditionally affordable housing into STR properties. However, it quickly became clear that in spite of a handful of outrageous examples, the actual number of STRs compared to the total number of housing units did not support this idea.

From this point forward, the selectboard dropped any pretense that the proposed STR bylaw had anything to do with affordable housing. Instead, its stated purpose is vague and the resulting regulations are arbitrary and capricious. It has become clear that this bylaw is a reactionary “Not In My Backyard” (NIMBY) assertion rather than a serious attempt at formulating good public policy. There are ways to attenuate the negative impacts of STRs and foster affordable housing. This bylaw is not one of them.

The stated purpose of this proposed bylaw is to:

Enable residents to earn extra money from their properties to better afford to live here, maintain their properties, and contribute to the community
Minimize public safety and health risks
Deter commercial interests from buying housing to use primarily as short-term rentals

Sounds reasonable, but the devil is in the details. First off, property owners already can “earn extra money from their properties.” This bylaw only places restrictions on that ability, in some cases to the extent that the ability to do so is severely restricted or eliminated.

Only if the property and circumstance conform to the narrow definitions set forth in the bylaw can a property owner realize the allowable income. Properties vary widely in their appropriateness for this kind of use. There is no allowance to discern between a reasonable and a detrimental rental use case. It would seem like a special permit would be a far more appropriate approach than a simple moratorium in this regard. Minimizing public safety and health risks is a reasonable objective, but one does not need the rest of the bylaw to accomplish this.

The most convoluted part of the “purpose” is to “deter commercial interests.” Renting is by definition a commercial activity. The real purpose of this clause is to limit the number of units that can be held by any one party, especially out-of-town real estate syndicates. While the point is well taken, the basic unit restrictions eliminate this possibility anyway. The carve out that allows LLCs and trusts to hold STR property but not S Corporations is arbitrary and unnecessary to meet the objectives that were discussed in selectboard meetings. Very sloppy, very counterproductive.

Furthermore, in these times where the nature of “work” is fluid (and many people have side hustles of all types), it would behoove the selectboard to use the word “commercial” very carefully to avoid unintended consequences that would make Great Barrington even less affordable and more restrictive than it already is.

It is pretty easy to see numerous unintended consequences this proposal might create. By definition, the partial moratorium on STRs makes them less available and thus puts upward pressure on price. Inflation in STR rates could in turn incentivize more people to convert long-term housing to short-term housing. The fact that monthly vacation rentals are exempt means that a property owner could do STRs for half the year and month-to-month for the rest, completely circumventing the use cap.

On the other hand, it is also possible that the town could lose revenue by throttling income; this would certainly be true for certain individuals who rely on STRs to help them cover taxes or mortgage. Of course, no one has done a proper analysis of these questions, so how would we really know? Anecdotal reports from other areas that have tried similar approaches to controlling STRs seem to indicate that these are real risks.

But the most shocking thing about the selectboard’s discussion has been their indifference to the traditional ways STRs have served as a critical economic tool since Europeans first arrived here in the Berkshires. Seniors, itinerant workers, farmers looking for extra help or a little cash, and new arrivals buying time to find permanent housing have always relied on what we now call “STRs.” Long before Airbnb, short-term rentals provided elasticity in the housing stock to smooth shifts in demographics and facilitate economic activity. Granted, there are qualitative differences between a stereotypical Airbnb rental and the traditional “room for rent,” but that does not mean they do not exist or that they are somehow exempt from this bylaw.

My “first place” when I moved out of my parents’ house in the 1970s was a rooming house owned by a widow who needed the income to get by. It cost $25 per week for a furnished room with shared living room, dining room, kitchen, and bath. There were 4 bedrooms for rent. Some rooms turned over quickly (sometimes in days), others were occupied for years. I stayed for a while, until I decided to go to college. The owner lived in a cute apartment built by her son out of what had been the garage. She lived on her Social Security check and the rent she collected from us. We operated as a family. She mothered us; we took care of her. Many types of people passed through — people in transition, students, short-term workers, and young working adults. This kind of arrangement was not uncommon back then, and we could use places like this now. Under the proposed bylaw, this traditional arrangement would be disallowed.

Probably most importantly, it should be recognized that this proposal would hurt families in crisis. Because of a death, sudden illness, or even divorce, families can find themselves with property that cannot be sold at this time but still have mortgages, insurance, and maintenance expenses. Short-term rentals provide a tool for families to navigate these tough times. In these situations, long-term rentals can be problematic because the future is extremely uncertain.

On the flip side, sometimes individuals or families need temporary housing while securing longer-term housing, to stay in the Berkshire Hills Regional School District for example. Short-term rentals can provide a kind of flexibility that is especially important in times when housing availability is at its lowest.

I have to say that I was horrified to hear selectboard member Garfield Reed say he had “no empathy … no sympathy” for the single mom who was desperately trying to hold onto her lovingly restored dream home by using an STR to raise money after losing her income due to COVID and, on top of that, a divorce.

If this is the kind of compassion we can expect from the selectboard, then it is no wonder this proposal is their product. To be clear, STRs are no panacea and do have their downsides. The important thing is to recognize the impacts of this proposal from all citizens’ perspectives. Ultimately, the STR bylaw represents a significant taking of people’s property rights. It should not be taken lightly or glibly.

Similarly, Davis’ unwillingness to discuss definitions or terms, and her zeal for adding restrictions, belie her desire to simply eliminate STRs altogether without regard for other people’s rights or needs. The selfishness and combativeness on display at these meetings has been painful to watch. Without [Eric] Gabriel participating, [Ed] Abrahams was left essentially on his own to try to clarify the muddy language and terms of the proposal (with only marginal success). This is no way to formulate good, thoughtful, and functional public policy.

It is impossible to properly assess the full impacts that this or any other proposal would have on the availability of housing – or on the town at large – given the available data. The selectboard has done little to provide objective information that would make a thoughtful decision possible.

However, from what we do know (from what little data is available) the actual number of STRs is quite low relative to total housing stocks. The number of houses converted from primary residences to second homes is dramatically larger. A high percentage of second homes appear to be at least partially used for vacation rentals. Month-to-month vacation rentals (which are exempt from the proposal) outnumber STRs by a very significant margin. And some proportion of new STRs actually represent formerly unused space newly brought to market, effectively increasing housing stock.

All of these things taken together suggest that the real opportunity here is to design a mechanism that can balance all vacation rentals vs. full time residences while discouraging the conversion of primary housing to vacation rentals.

There are several alternate proposals currently circulating to do this, most notably the alternative proposal from Tony Segalla, et al. This citizen petition alternative is clear, and focused solely on health, safety, and well-being issues. It is more thoughtfully constructed, less arbitrary, and is more consistent with the stated purpose of the bylaw. It will also appear on the town meeting warrant on June 6. This version contains only common-sense provisions and should pass, but unfortunately it is posted at the end of the warrant when the fewest number of voters remain.

My personal view is that the town should go one step further and institute a marginal tax on all vacation rentals, regardless of duration. The tax should be hefty enough to curb speculation but not so severe as to cause property owners to lose money. The collected tax revenue should go directly to the Affordable Housing Trust, who in turn should co-invest that money with the CDC, Community Land Trust, Construct, and other organizations to develop more affordable housing or purchase deed restrictions on existing housing to help secure the pool of affordable housing.

A tax like this would turn the housing crisis into an opportunity to improve the housing outlook for residents in turbulent times like these in the future. The housing market is cyclical. Nearly every 20 years the market has slumped or peaked. A tax can easily be adjusted to meet market conditions. Moratoriums are inflexible. One thing is clear: the town does need to do something. But it should do something that can address the fundamental problems that bar access to housing in a highly desirable area in the middle of a national housing shortage.

It is understandable that many people feel that STRs are the real threat. While STRs can cause real problems, the causes of the housing shortage are far more complicated. History shows that while STRs may be here to stay, their relative impact will likely diminish over time. The key is to remove the incentive for greed without removing the incentives to develop housing, especially moderate and affordable housing.

Using a tax to remove the current windfall profits generated by vacation rentals would do just that. Needless to say, I plan on voting against the town’s proposal and I urge you to do the same. And by all means, vote for the citizen petition.

But after June 6, when all of this is done, I beg the selectboard to start actively seeking and implementing real solutions for the housing crisis, the thing that poses the greatest existential threat to our way of life.

Dave Long
Great Barrington

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