Published in the November 9, 2016 edition

By MAUREEN DOHERTY

LYNNFIELD — In an unanimous decision, the Zoning Board of Appeals (ZBA) voted on Nov. 1 to uphold, in part, the cease and desist order issued by the building inspector last May to Alexander Styller, 8 Needham Rd., prohibiting the rental of his property for 30 days or less.

ZBA Chairman Tom Aylward and members John Fallon and Patrick Rondeau agreed with the advice of Town Counsel Tom Mullen not to include references made in the original letter to Styller forbidding him to advertise the rental of his single family home, which is located in a residential district.

“The building inspector and I concede that his original order was over broad to the extent that it purported to prohibit Mr. Styller from using Airbnb, that is from using an electronic market place. He has a First Amendment right to express himself, even commercially, and our zoning bylaws do not portend to have any jurisdiction with respect to electronic market places,” Mullen said.

“It was my fault; I drafted this original order in haste,” Mullen told the board, referring to the cease and desist order issued in the wake of a murder that took place at 8 Needham Rd. over Memorial Day weekend during what Styller had been told by the renters was going to be a small college reunion party. The murder of Keivan Heath of Randolph remains unsolved.

At the outset of the meeting, Aylward stated that the ZBA had received a letter from Styller’s attorney, Lester Riordan, requesting the ZBA “decide the appeal based on materials before them without further argument.”

This request was made based on the fact that the hearing had been extended in order to give Styller an opportunity to file for a special permit with the ZBA to resolve the outstanding issues regarding the rental of his property. However, during the interim, voters at Town Meeting approved revisions to the zoning bylaw that “bar special permits and now prohibit rentals of 30 days or less,” Riordan stated in his letter. This action precludes Styller from pursuing relief from the cease and desist order through the issuance of a special permit, Riordan believes.

Riordan therefore requested that the ZBA “find in favor of Mr. Styller and hold that the building inspector does not have the authority to restrict Mr. Styller’s advertising regarding his short-term rentals,” adding that the newly passed bylaw allows his client to engage in “temporary rentals for more than 30 days as a matter of right.”

ZBA member Patrick Rondeau requested “some clarification from Mr. Mullen about what our options with respect to the ruling are. I know one option would be to overturn the ruling. Another option would be to uphold it. Is it that binary or are there middle grounds, such as upholding it in part?”

Mullen explained, “The building inspector and I take the position that the zoning bylaws, even before the recent amendment, properly construed, forbid short-term rentals in the single residence district – that is rentals of 30 days or less.”

In view of this, Mullen suggested one option available to the ZBA would be to “uphold the building inspector’s cease and desist order to the extent that it sought to prohibit such short-term rentals, and also any other commercial activity in that residential property. By ‘other commercial activity’ I mean to include video shoots, parties and corporate meetings, because those three things were referenced in an advertisement for the property.”

Riordan weighed in, telling the board that under MGL 40A section 14, the board has the ability “to modify the (building inspector’s) order. And if you want to do that, then you should vote on that.”

However, Riordan contended that Building Inspector Jack Roberto’s cease and desist letter “specifically did not raise that (Memorial Day) party as an issue of the enforcement action, and we have henceforth said we won’t conduct any more events like that. So to the extent that the inspector meant to prohibit that type of conduct, he certainly didn’t do that.”

“The inspector also didn’t indicate what types of rentals were within the five-person accessory use or whether the short-term rentals under 30 days were prohibited,” Riordan stated. Instead, Riordan said, Roberto’s letter “focused solely on this suggestion that Mr. Styller was operating a lodging or boarding house, which we disagreed with.”

Zoning Board members John Fallon and Patrick Rondeau had a brief discussion on the merits of whether a vote by the ZBA should make any distinction between commercial and residential uses.

Rondeau felt that if the board were to uphold the order to prohibit rentals of 30 days or less there was no need to define what constituted either a commercial use or a residential use.

Fallon had originally suggested making such a distinction “because that has been an overriding concern as far as the prohibition of commercial activity and allowance of residential activity of 30 days or more.”

Rondeau then moved that “we uphold the building inspector’s order to the extent that it prohibits any rentals of the property for 30 days or less. And if that’s all we’re upholding, I don’t think we need to talk about what we’re not upholding.”

Aylward and Fallon agreed.

“That is unanimous so we will uphold under those conditions the cease and desist order of the building inspector,” Aylward said,

Appeal planned

After the meeting, Riordan told the Villager that he plans to file an appeal of the ZBA’s decision in either the Land Court or the Massachusetts Superior Court because “no compromise is available anymore.”

“The town of Lynnfield passed a prohibition specifically deciding this issue before this hearing. They said ‘no more shall you have properties that are rented less than 30 days.’ They also passed a provision that said that applies to the five-person accessory use on a going-forward basis and they also said no more special permits in the residential district,” Riordan stated.

“Our view is they decided that issue, and specifically rejected what the Zoning Board of Appeals discussed but decided not to do tonight, which was to specifically find that short-term rentals were already prohibited by the bylaws,” Riordan said.

“What they’ve just done is apply the new rule, but they ruled against Mr. Styller despite the fact that he had established what is now a prior, non-conforming use,” Riordan explained. He added, “Our position on appeal would be that this was decided by the town of Lynnfield that prior to the passage of the bylaw they allowed short-term rentals to one person and they had an accessory use that covered five (people), and that the board is ignoring Mr. Styller’s prior well-proven use before that. In short, based on the way this matter was handled, Mr. Styller may be one of the only people entitled to conduct short-term rentals.”

We have 20 days to file in the Superior Court or the Land Court.