AirBnB use cannot be grandfathered.

Byline: Kris Olson

The online short-term rental of a house in Lynnfield was not a use "lawfully begun" before the town enacted a ban on such rentals and thus did not qualify for "grandfathering" under the bylaw, a Land Court judge has ruled.

The plaintiff homeowner argued that because short-term rentals through web platforms such as AirBnB were permitted as of right before the bylaw was amended, the amended law should not apply to his property.

But Judge Keith C. Long said the bylaw's introductory paragraph made clear that a use must be "specifically permitted"; otherwise, it would be prohibited.

A use might still qualify as an allowed accessory use if it was "customary in connection" with the principal use, "clearly incidental" to that use, and not one that effectively converted the use to one not permitted, Long said.

Functionally, the plaintiff's house was being used as a "tourist home" and, when rented to four or more people, as a "lodging house," as the bylaw defined those terms uses that required a special permit from the town's zoning board and thus clearly were not accessory uses, Long said.

The Supreme Judicial Court's 1971 ruling in Town of Harvard v. Maxant had spoken to "uses which in general tend to become deleterious to a neighborhood of homes," saying that, to be permitted, the use needs to be "one that is so necessary in connection with a one family detached house or so commonly to be expected with such a house that it cannot be supposed that the ordinance was intended to prevent it."

The plaintiff's frequent AirBnB-type rentals were not that, Long determined.

"Homes are expected to be used as residences, not for profit," he wrote. "Continuous rentals of a primary residence are contrary to the fundamental use of the home, as it leaves its primary residents without a place to stay."

Though the bylaw allows a homeowner to rent out rooms in the house or furnish meals, it clearly envisions the homeowner remaining on site, Long said.

The 17-page decision is Styller v. Aylward, et al., Lawyers Weekly No. 14-083-18. The full text of the ruling can be ordered at here.

'Underlying driving force'

The plaintiff's attorney, Lester E. Riordan III of Concord, said he filed a motion to amend Long's ruling in the Land Court, and that he and his client, who has since sold the home in question, are mulling other legal options. He declined to comment further.

Thomas A. Mullen, who defended the Lynnfield Zoning Board of Appeals and the town's...

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