WILMINGTON, MA — Wilmington resident Lijun Zhu was happy renting the accessory apartment off her Concord Street house on Airbnb, an online marketplace popular with individuals looking for short-term lodging.
“[Renters] were screened very carefully. I never had any trouble. They were all nice people that I enjoyed hosting,” said Zhu. “My neighbors never had an issue.”
Zhu’s Airbnb activity, however, stopped on September 25, after receiving a second cease and desist notice from the Town Building Inspector, notifying her that she was in violation of the town’s zoning bylaws.
The letter read:
“It has come to my attention that you are running a commercial business from your home, in violation of the Wilmington Zoning Bylaws, Section 3.1 General Principal Use Provisions — Except as provided by the Zoning Act, in each district, no land, structure or building shall be used except for the purpose permitted in the district as set forth in Section 3 and Table 1 Principal Use Regulations unless otherwise specifically permitted in this Bylaw. It is the intent of this Bylaw to prohibit in any district any use which is not specifically permitted herein.
Airbnb, short-term rental use, is a commercial use and is strictly prohibited.
Please call this office before October 13, 2018, so that we can discuss these violations. If I do not hear from you, I will have no resource but to start legal remedies which can result in fines of $100.00 a day every day you are in violation and could result, up to and including, an appearance in Woburn District Court.”
Building Inspector Al Spaulding would later clarify to Wilmington Apple that he believes Airbnbs are not an allowed use under the town’s zoning bylaws. And both the previous Town Counsel and current Town Counsel shares his opinion.
Zhu, with her attorney, was recently in front of the Wilmington Board of Appeals, asking members to overturn the Building Inspector’s decision, despite Town Counsel’s support of the Inspector’s position.
Zhu’s attorney argued that Town Counsel did not review all the pertinent facts in this case. Town Counsel issued his opinion in December, before the applicant’s attorney even submitted his memo on January 9 outlining their arguments. Zhu’s attorney stressed that renting on Airbnb should be permitted in this case since the Board of Appeals, in 1986, issued a special permit to allow for the accessory apartment.
Board of Appeals member Tony Barletta asked that the Town Counsel review Zhu’s attorney’s memo, with an emphasis on the preexistence of an accessory apartment.
“The bylaws don’t really stipulate short-term rental vs. regular rental. I’d like to hear Town Counsel’s opinion related specifically to the special permit that’s in place,” said Barletta. “If they rent [the apartment], that’s what they were given permission to do. I’m confused as to why Town Counsel’s opinion didn’t factor that in. I’d think differently if it’a house renting out a bedroom and a bathroom, but this is an accessory apartment.”
Board colleague Jacquelyn Santini agreed that clarification was needed in the bylaws as there is no mention of “short-term” when referencing rentals.
Zhu noted that many Massachusetts communities do permit Airbnbs, including next door in Andover. She noted Airbnbs have become so popular that the state, in December, decided to add new regulations and taxes to Airbnbs effective July 2019. And Zhu’s attorney, while not debating the Lynnfield and Hull land court cases referenced in Town Counsel’s opinion, stressed that the allowance of Airbnb’s are governed by each individual community’s zoning bylaws, noting that Wilmington’s are very different from the two other communities cited.
Santini was curious how the Building Inspector found out about about Zhu’s Airbnb, suggesting a neighbor must have complained. Zhu’s attorney speculated that the Building Inspector may have just gone on Airbnb’s website, looked at Wilmington’s listings, and contacted each renter.
“From what I know, [the Building Inspector] sent everyone a letter to stop Airbnb rentals. He said that he sent everyone a letter,” said Zhu, who stressed that her situation is different from many of the other residents who received letters because of her accessory apartment special permit.
The Board of Appeals unanimously voted to continue the matter to its March 13 meeting and to provide Town Counsel with the applicant’s attorney’s memo from January 9, plus his written response to the Counsel’s opinion, to see whether it changes Counsel’s position.
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