Canaille: SJC-12901, Alexander Styller,
the Lynnfield Zoning Board of Appeals.
-: Thank you and we will hear from Mr. Riordan.
-: Good morning, may it please the court.
My name is Les Riordan and I represent Alex Styller.
Mr. Styller appeals the decision of the Land Court,
which upheld an order of the building inspector
of the Town of Lynnfield to cease and desist his advertising
in short term rentals of his personal residence.
This case presents an issue as to whether you can prohibit
such rentals by characterizing those rentals
as a tourist house or a boarding house.
Mr. Styller's position is that the localities
must pass expressed restrictions and limitations
relative to short term rentals,
and in fact, in this case, the Town of Lynnfield did
but not until after the building inspector's order.
A subsidiary issue that was raised by the Land Court,
which I think is unnecessary to its decision and premature
is whether a short term rental provided
through an internet platform such as Airbnb
or Home Away can ever become a qualified
prior nonconforming use within the protection
of Chapter 40A, Section 6.
Mr. Styller's position is that it's expressly
within the protections of that Chapter
and that we think that any restrictions
or limitations are best done within those imposed
by the Chapter itself and particularly the prohibition
against changes or extensions of such uses.
In this sense, we believe
that the Land Court's decision was premature.
He should be considering this issue relative
to subsequent rentals as opposed to indicating
that a future rental will have to be nonconforming and--
-: Can I stop you for a second?
I just wanna find out, so is your position
that this was an enumerated accessory use?
-: We believe that it would have fallen
within the accessory use.
We don't really believe we get there
because we don't think there's a prohibition of a rental
to a single tenant under the bylaws
as they existed at the time.
But certainly, the accessory use which was expressly
within the bylaws would allow for the renting
of five rooms to separate individuals, expressly.
-: He's not renting rooms,
right? Les: Right.
He's renting the entire house.
And doesn't an accessory use have to be a customary use?
And Airbnb is not customary.
It's a revolutionary new way of leasing homes, isn't it?
How is it customary?
-: Airbnb is not a use.
Airbnb is a rental agent.
Airbnb is a platform.
-: Renting your entire house out or even renting rooms
on a regular basis on the internet like this,
it's pretty dramatically different
than when the bylaws were written, isn't it?
I mean, Airbnb didn't even exist,
this type of arrangement didn't exist, did it?
-: I think it is, your Honor, but I think what you're doing
is conflating the idea of the manner and the technology
that we have available to us to engage in certain types
of activities with the activity itself.
I mean, if you look at the expressed provision
of the bylaw, which was changed, if it permits
in that district a single family residence.
The bylaw was changed to change the tenor of the use
by indicating it needed to be residential.
There isn't any doubt about that,
but I guess what I'm saying relative to this is that
all the use that we engaged in took place before the order.
-: Let me summarize for one second.
Just tell me where I'm wrong.
So this is a single family residence zoning district, right?
Les: Yes.
-: Secondly, uses that are not specifically authorized,
specifically permitted are not allowed, correct?
-: That's what the bylaw says.
Orwellian dictating the bylaw,
which I'll repeat 'cause we all know from our readings
in school is almost the exact opposite
of the structure you use when looking at personal freedoms.
So we have a bylaw that says
that anything not expressly permitted
is forbidden, forboden.
I don't agree with that
and this court has not ruled on that.
You have a Land Court case which used it,
but I would say to this is that the permitting use
which is actually outlined is use...
It's a single family residence.
-: But it's not being...
Single family residence aren't a mixture
of single family residence
and business opportunities that you put out
I'm living in my home, but anyone who wants to come in here
can take it for the weekend for $5,000.
That's gotta be not a traditional or customary use
of a single family residence.
-: Well, your Honor, I understand what you're saying
but I don't believe the bylaws indicate it that way.
Look, I'm not arguing that the Town of Lynnfield
or the General Court can't legislate
and regulate these things.
I'm just arguing that that's what they need to do.
I mean, there's no doubt
that this has been an important issue
in the Commonwealth and across the country.
We know that the state legislature is taking up a number
of proposals regarding limiting these statewide.
We see that the Lynnfield Zoning Board in reaction
to a problem that existed enacted a bylaw.
That's what they did.
And what they said, okay, aside from the issue
of accessory use is that our bylaws implicitly,
implicitly restrict transient rentals of less than 30 days.
That was my brother's argument
before the ZBA and in the Land Court.
It's the Land Court that didn't accept that definition
and then did what I think you see in a number of the cases
that have developed since Worcester v. bondage venture
straight through to your decision
in the second Worcester case
regarding the college group home.
They developed this erosion
of what a boarding house really was.
And so I certainly agree with you
that this is the changing technology
is now presenting new challenges, new challenges
which need to be addressed in a democratic way
with the checks and balances that we have.
-: But it's not just the new technology.
It's also transforming the way a home,
a single family residence is being utilized,
which is converting a single family residence
into basically a business opportunity at the same time.
And that doesn't seem to fit
within a customary or accessory use.
And it's also it's not a lodging house
because you're not renting rooms,
you're renting the whole house.
It's not a tourist home because that also talks
about renting rooms, right?
So it doesn't seem like we're...
I don't know exactly what the rationale we're accepting is,
but if we affirm the ZBA on different grounds
than the Land Court judge, are there cases
that say that's okay
if that's our statutory interpretation?
Or do we have to send that back to the ZBA somehow?
-: I think, let me answer it this way
if I understand the question.
You have to...
The Land Court judge should've provided deference
to the ZBA's view of its own bylaws.
And I think you are correct.
I don't think it can be fit within the rubric
of a tourist home or a boarding house.
And I think the Land Court
didn't accept the ZBA's position on that.
But you have to look at what the ZBA did.
The ZBA adopted a definition
that wasn't within its bylaws itself.
The Little v. Swick case is right to the point on this.
There wouldn't have been anything wrong
with Lynnfield banning transient rentals
or banning rentals for less than 30 days.
They just didn't do that.
And I would say this is an important issue
because there are a number of towns in the Commonwealth
which are depending and use seasonal rentals
or weekly rentals.
Salisbury, Massachusetts, individuals renting their house
on the Cape or on the Islands.
The means to be able to do that needs to be distinguished
from the conduct.
Today in Lynnfield, you can rent a house
under the same conditions, it just needs to be for 31 days
or the season.
And I think that's the difficulty here
is that there was no restriction on renting
and now your Honor is disturbed
rightly so by intensity of use.
And you're saying the intensity of use is bothering me.
It's not the use itself, it's the turnover.
Is 30 days in the case of Mr. Styller's rentals
over a course of a couple years, was that prohibited?
Our position is simply that it wasn't
and that he would have been entitled under the bylaw
as written to that use and then he would have been required
to show the Zoning Board of Appeals for subsequent uses
that he didn't change or extend it.
Maybe the court is right in fact, but in fact,
I think even under Chapter 48, we have a right
to go to the Zoning Board of Appeals and ask them
to provide us with the opportunity to change or extend
and alls they need to do is essentially say
it's not more detrimental.
So you're even taking away that right for us
to go back to the Zoning Board of Appeals
and say we're conducting this activity, we did it before,
we appreciate the opportunity to do this,
we have a right to ask you.
-: Could I go back?
I know it's your secondary argument but nonetheless
on the prior nonconforming use issue
and Justice Kafker asked you about customary
and this emerging technology, but what about incidental?
In your last answer, you were talking about the amount
of times that your client rented the property,
but it's well over 10 times he rented it.
I think well over $100,000, 65 days
and he had events there like big weddings.
How would that fall as follows accessory use
into an incidental use?
How much...
When he's renting that much,
how can that be an incidental use?
-: I think Justice Lowy, I think that the amount
of his use over the course of a year
is I wouldn't characterize it as that much.
I mean, we're looking at 20 days in 2015, 37 days in 2016
and I believe 12 or 14 in 2017.
But relative to your position, you're again focusing
not on the use, but on the intensity of it.
And I think this is the mistake.
It is better to allow the Zoning Board of Appeals
to deal directly with that by its regulation.
But the incidental use is that we don't look at the people
or how they use it, we look at the use itself.
And the use is a dwelling.
That's the incidental use.
On a related issue, I hope this can highlight it a bit,
when Judge Long was dealing with that issue,
he came up with a conclusion
that it couldn't even be accessory
unless the person lived there,
that it needed for it to be incidental, customary
and necessary, the person offering the lodgings
needed to actually live on the premises.
If you look at the Lynnfield zoning bylaws
regarding accessory use, they have a provision
and I can cite it for you if you'd like
relative to apartments on the property.
And in that provision, they require that you live on it.
But they acknowledge that the renting of an apartment
within the context of a house is customary and incidental.
They acknowledge relative to home office,
it says, you must be a resident.
It doesn't say it in that case.
But if I could step back, if you don't believe
this is a boarding house or a tourist house,
I don't need accessory use.
I just have a rental that they can restrict
as many towns have done.
This is a case in Hall v. Edgertown,
the case in Little v. Swick,
transient rentals are prohibited,
short term rentals are prohibited.
My argument to us is simply that that's what they need to do
and then the next step is the step
of whether it's a prior nonconforming use if we prevail.
And that's when the ZBA has the opportunity
to address changes or extensions
and we have the opportunity to ask them to surpass that.
So in this case, we have the right thing.
Lynnfield passed the law and there isn't any doubt
that prior to that, they didn't expressly prohibit the use
of a dwelling as a rental unit.
-: But you're talking about the provision 5.15,
is that what you're talking about right now,
about short term rentals being permissible?
Because I think that might be what you're talking about,
but if you are, Justice Kafker's point
about not renting a room, you're renting a whole residence.
Also, there's requirements that...
And it's not being done regularly
and there's sometimes more than five people.
So if that's what you're trying to fit this into,
I'm not sure you can shizzle it in there.
-: Mr. Styller rents the residence.
I don't think the time is an issue
because it's not within the bylaws.
You're focused on the disturbing aspect
of short term rentals being short in turnover.
But I don't think there's a distinction between a rental
that's seven days in one of 10 or a rental which is 30
and one which is 31 other than what this town does.
But if you look at the exhibit volume 1, page 130,
which is a separate provision, you can see 5.1, .2, .3,
which addresses owner's occupancy requirement relative
to accessory apartments.
Accessory apartments are rented to one tenant
and they impose certain conditions.
Lynnfield knows how to impose the conditions.
I think your Honor's point is well understood.
The difference is that what I'm saying is
it's not up to the ZBA to dictate the law.
It's up to the Town of Lynnfield.
So do it, and they did.
And I think what's happening is that you're saying...
And I think that's the danger because--
-: I'm sorry, you answered my question.
-: All right, any further questions of Mr. Riordan?
Thank you, Counselor.
Mr. Mullen, please.
-: May it please the court, my name is Tom Mullen.
I'm the Town Counsel for the Town of Lynnfield.
Mr. Styller failed to prove at trial
that he had established a nonconforming use
of renting out his single family home
on a short term basis.
To do that, he would've had to show that the use he wished
to continue had been allowed as of right prior
to the amendment of the zoning bylaw in 2016
that expressly forbade short term rentals,
that is rentals of less than 30 days.
At all relevant times, the zoning bylaws provided
that only uses specifically authorized could be practiced.
And in the single family residence district
where Mr. Styller lived,
residing in a detached single family home
was an allowed use, as was any accessory use
and I'll get to that in a minute, but the use
that Mr. Styller made was neither residential
nor was it accessory.
-: Mr. Mullen, could I--
-: Did we lose one of the lawyers?
-: Oh, looks like we have.
I think we did, Justice, but I didn't notice that.
Mr. Canaille, do we have Mr. Riordan?
Canaille: Mr. Riordan cut out
and I'm going to email him now
to seek him back into the courtroom.
-: Yeah, if we could stop Mr. Mullen's clock, please.
Canaille: Will do. Gaziano: Thank you.
-: Attorney Riordan back, I apologize for that.
-: Okay, thank you, we have Mr. Riordan.
Mr. Mullen, please continue.
Kafker: Can I finish?
-: I think Justice Kafker
hasn't finished his question, correct?
-: Right, so let me pose the following.
So I understood from Mr. Riordan's argument
at the end in particular
that essentially he's arguing, look,
as part of your primary residence, people often
and even customarily rent out their place periodically.
The classic example is the summer rental.
People own houses on the Cape, they rent them out for a week
in the summer or two weeks.
Does the town need to specifically prohibit that?
I understand your argument this is not a lodging house
or a tourist home.
I understand some other things,
but it seems like that may be his best argument.
Now, Airbnbs may be different,
but why is this summer rental type prohibited here?
-: It's not prohibited, it's rather
that it was Mr. Styller's burden at trial to prove it.
And there were zero evidence
that such rentals were customary in Lynnfield.
They in one of the Land Court cases I cited,
DiGiovanni versus Pope--
Graziano: I think Judge Kafka
hasn't finished his question, correct?
-: No, I'm listening.
Mr. Mullen's got the--
Feedback: I understood from Mr. Riordan's argument
at the end in particular
that essentially he's arguing, look...
-: We've got feedback now going on it looks like.
-: We don't hear it.
Lowy: We don't hear it.
-: Maybe I was getting feedback, sorry, okay.
-: Sorry, are you done with your question?
Kafker: Yeah. -: Okay.
So there was no evidence here
of any custom in Lynnfield of the rental,
seasonal or otherwise, of single family homes.
I was pointing by contrast to DiGiovanni versus Pope
where Justice Piper found that in a town
that was on the Cape, there was evidence
or it was accepted by the parties
that there was such custom, then the question there focused
instead on whether if the people who rented the property
for brief periods used it as a wedding site,
whether that would be customary.
And the judge found there was no such evidence.
-: Let me just make sure I understand because I thought
that the first argument is that there's nothing
that specifically says you can't do this.
So does customary really fit into that?
I thought this was about whether it was something
that was okay under the bylaws.
-: So there are two points here.
First is that our bylaw said
if it's not specifically allowed, you can't do it.
And yes, there is nothing here
that specifically allows the renting out
for short periods of your single family home.
And second, the bylaw does say
that in a residential district,
you may make any accessory use of your home,
but it defines accessory as being customary and incidental.
And so this gets to Justice Kafker's question I think.
If there had been evidence at trial that it was customary
for people to rent out their home for brief periods of time
in Lynnfield, we'd be in a different universe.
But there was basis either to say that it's available,
that this particular use was available as a right
or that it was available because it was an accessory use
to an allowed use.
If I may, I think it's very important
to get into the weeds here about exactly what was done
with this property during the 13 times in 22 months
that it was rented out.
The rentals were two days to 15 days,
the median being four days.
But the purpose of the rental was never merely residential.
That is, nobody ever rented the house just to live there.
It was instead marketed and used for commercial purposes.
In five cases, the use was blatantly business related,
twice as a business retreat, twice for a photo shoot
and once for a corporate board meeting.
In another case, the one that ended up
involving 100-person party and a murder,
it was supposed to be a college reunion.
And in the other seven cases, it was for family reunions.
None of these rentals constituted a residential use.
Now, let me anticipate an objection.
There is nothing that prevents residents
in the single family district from holding family reunions
at their home, of course, but when they do,
such parties are not the main use of the home.
It's one thing when people who live in a house hold a party
for their family.
It's another when you rent out your house
so that the renters can hold a party.
The former is an incident of residence,
the latter is a business.
And I should point out that renting space specifically
for a party is a commercial use and is treated as such
under our zoning bylaws
because it was a use expressly allowed
in the commercial district.
-: Mr. Mullen, why do we care what the end user does
because the business use is that
of which the homeowner does.
So whether they rent it to someone who is on family vacation
versus a business retreat, why does that matter?
-: Well, I think it does matter because you couldn't,
Mr. Styller couldn't for example rent it to somebody
who would use the property to run a business.
He couldn't open a factory in the house
for a weekend, for example.
So the thing that's actually done, the use that is made
of the property by the renter is itself relevant
and I think frankly it makes for the easiest way
to resolve this case because in every single instance,
all of the 13, the use that was made of the property
was not purely residential.
It would be different, it might be a different case
if people had come in here to rent the property
for three weeks so that they could visit
their ailing relative at Mass General,
but that's not how it was marketed nor how it was used.
-: Mr. Mullen, I think your articulation of this is probably
even better than the ZBA's, the Land Court judge's,
but it's a little different.
Do we have cases that we can turn to
where we're affirming both the ZBA and the Land Court,
but the reasoning, your reasoning is different
from both the building inspector,
the ZBA and the Land Court.
It may be actually a much better interpretation
of the statute, but do we have cases like that
that we can turn to
'cause I know the standard review here is confusing.
-: So I know that in an appeal to say the Land Court
or the Superior Court under 40A-17, there's ample authority
for the proposition that the court can affirm the decision
of the ZBA on a different theory
than that advanced by the ZBA.
Frankly, I couldn't cite you to a case that says
the SJC can affirm the Land Court on a theory different
than the Land Court advanced, I don't really see why not.
You can just get specific about the reason why you think
the conclusion was correct, but for a different reason.
-: I know that the Land Court decides the facts
and the facts here are undisputed.
It's really the statutory interpretation
that we're struggling with,
meaning the bylaw interpretation.
-: So if I can just finish one thought about the bylaw,
I wanted to point your Honors to volume one
of the record appendix page 125.
And that is part of the bylaw.
It's section 4.4.3.
And that specifically allows in the commercial district,
but not elsewhere, places of amusement or assembly.
So to whatever extent people were renting this property
to use it for the throwing of parties, then I would say
that it's obviously in the wrong district.
Quite apart from this, there's a further argument to be made
that even the short term rental
for purely residential purposes,
say somebody you just wanted to sleep in Lynnfield
for a week, there are Land Court cases holding
that short term rental constitutes a business use
of real estate in and of itself,
no matter what the renter does on the property.
May I point you to Plymouth versus Swike, which is one
of the cases in my addendum, where the Land Court held
that the owner of a two-family house, who lived in one unit
and rented out the other on a weekly basis in the summer,
those rentals constituted an inherently commercial use
of the premises not permitted
in the single family residence district.
And getting back to the point
Justice Kafker asked about earlier,
if there had been evidence there that it was customary
to rent out in that particular town on a weekly basis,
that would've been a different case,
but that wasn't the case in Plymouth versus Swike.
Similarly, in Corey versus Rector, another Land Court case,
an applicant planned to cease the use of a cottage
as a residence and start renting it out
to short term lessees.
And the court treated that as a conversion
from a residential to a commercial use.
And as Justice Long found below, short term rentals
had impacts on the neighborhood that are different from
and greater than long term rental
or ownership for residential purposes.
People who rent for a couple of days are likely
to be less concerned about maintaining the property
and maintaining relations with neighbors
and the constant influx of new faces,
new vehicles is disruptive to the neighborhood.
-: Mr. Mullen, I think Justice Lenk has a question, please.
-: I do, Mr. Mullen, I wonder if you could explain to me
I'm really confused here.
I know that the bylaws basically say that you have
to have a specific permission in the bylaws
before a use is a permissible use, right?
But unless you had it compared to something specifically
authorizing it, it's not authorized, right?
That's the way it goes?
Mullen: Right.
-: Okay, so what is it?
Was it possible then for somebody to claim, listen,
I always rented my house out in the summertime
where I made a lot of money on it.
Is that specifically authorized in the zoning bylaws?
Mullen: No, it's not.
-: So anyone who did that really was also
in violation of the zoning laws
unless they had somehow a permission to do that, right?
-: Anybody who did that would be in violation
unless they could show that it was an accessory use.
But for that, they'd have to show proof
that it was customary in Lynnfield
for people in a residential district to do that
and it was incidental to their primary use,
which was to live in a house.
-: How about, I'm sorry about this, I just wanna see,
I'm just trying to understand this a little better.
How about somebody who wants to rent the house out
for a year because they had to, I don't know,
they're going to Europe for a year,
they've been shipped there for their job
and they want to rent the house out for a year.
Could they do that?
-: Yeah, they could and this gets to the difficulty
in this case, which is long term rentals are not something
that we forbid or even that I think we could forbid.
We can't prevent people from living in a house.
We don't care whether they live in a house
because they are the owner or the renter.
But we do care about the use of that house
and if there's constant turnover, if you have a lot
of strangers coming in and coming out all the time,
then you have something closer to a hotel use
and it's more commercial in nature
and disruptive as Justice Long found.
If on the other hand, you have people who are living there,
then it's a residential use.
And I get back to my earlier point
that I think the easiest way to resolve this case
is to look closely at those facts and say,
every single use made by every single one
of these renters was itself a commercial use,
either blatantly commercial like a corporate board meeting
or it was rented just for a party.
And there's another section entirely of the zoning bylaws
for renting a building for a party.
-: Okay, that being said,
why did you need to amend the bylaws?
-: Well, to make it absolutely clear, to codify it.
And the legislature around the same time
or shortly after that also passed legislation
about 30-day rentals.
So at some point, we just wanted to achieve clarity
through codification.
-: Okay, so the fact that you did this,
it doesn't have any implication as to the interpretation
of the bylaws that were in effect at the time,
that the civilian is claiming to have rights
to this grandfathered use?
Mullen: I don't believe it does.
-: Okay, do you have any cases not in the Commonwealth?
Do you have any kind of extra Commonwealth cases outside
of the Commonwealth,
other states how they've handled the situation?
Mullen: No, I do not.
Lenk: Okay, thank you.
-: One last question, Mr. Mullen,
so how does an ordinary resident
figure out what's customary here?
I mean, you've probably been Town Counsel for a long time.
I even vaguely remember
you may be even an elected official there,
so you may have a sense of what the custom is in Lynnfield,
but how does an ordinary person
make these types of distinctions?
You may be right that this is so far on the spectrum
it's easy to know it's different, but these issues
about how long you can rent your house and stuff like that,
how does a normal person figure that out?
-: Well, as a practical matter, the easiest,
the way this works out
is you typically call the building inspector
and you ask, how do you treat these issues.
And as a legal matter, you can ask the building inspector
for a ruling on paper and he has to answer you
within I think it's 14 days and if you're dissatisfied
with his answer, you can take it to the ZBA
and their decision under section 8 of 40A
is itself appealable to court.
-: Anything further for Mr. Mullen?
Thank you, Counselor.
Mullen: Thank you, your Honor.