2018-03-09 / Community

Petition circulates to undo city’s new rental rules

By Duke Harrington
Staff Writer

SOUTH PORTLAND — Just one week after the South Portland City Council adopted new rules that curtail the ability of most homeowners to rent out rooms and living units for periods of less than 30 days, a petition has been taken out to undo those changes.

And, perhaps ironically, the person who took out that petition, Preble Street resident Michael Frabotta, does not rent out his home, has no intention of doing so and does not even live in one of the three residential zones most impacted by the new licensing requirements.

Frabotta stands to reap a huge financial windfall from the new rules, because his home sits in the Willard Square Village- Commercial District, created in 2006 for 12 lots in the heart of the historic neighborhood center. Located just a stone’s throw from Willard Beach – given a good arm – the village commercial district is a ground zero of the demand for short-term rental sites in South Portland, and is not subject to the same limitations imposed on the surrounding Residential A district.

“He could practically run a hotel if he wanted to,” said Willard Street resident John Murphy, one of several property owners who say the city council went too far, and cast too wide a net in trying to deal with the phenomenon of Airbnb and other upstarts of the so-called “sharing economy.” Although he disputes the number often thrown out in recent months that claim 282 residential homes in South Portland are registered on Airbnb, HomeAway, and other similar websites, Murphy says, whatever the actual number, the city council has effectively wiped most of them off the market. Given the marked demand for short-term rentals, and the newly castrated supply, Frabotta is in the unique position of being able to basically name his price, Murphy says.

But Frabotta does not care.

For him, the potential personal gain, even if he had any desire to take advantage of it, is nowhere near great enough to divert him from attacking what he sees as the real sin committed by the council. His issues is less with the new rental limitations, not that he’s especially wild about those, either. His concern is an associated amendment made to the city’s zoning regulations, which clarifies that any use of residential property not expressly permitted in city code is forbidden. That, he says, turns on its head the previous presumption by many that any homeowners are free to do as they chose, unless a use is specifically denied.

“To me, this is all about property rights – not just for me, but for everyone living in South Portland,” Frabotta said in a March 1 interview. “This is about how the city council has completely taken away those basic homeowners rights. I despise government trying to take away rights in general, anyway. But I think the process the South Portland City Council went through to do what it did seemed farcical, almost.”

Created in the face of strong and vocal complaints from east end residents over short-term rentals, particularly those made for large groups over social networking websites like Airbnb, the new rules allow such rentals in South Portland’s three residential zones only when the building owner lives in the home and only when present at the time of the rental. Such rents that are allowed must now be registered with the city and are limited to no more than two adults and one infant at any one time.

Homeowners have until April 15 to register up for the coming summer rental season. However, prior deals can be honored through Sept. 15 if a rental contract was signed before Feb. 6.

Although debate on the issue of short-term rentals began at an October workshop, in response to complaints that began to surge around July of last year, Councilor Adrian Dowling voted against the new licensing limits at the final decision, Feb. 20, saying his peers were acting on “ a huge amount of fear, and very few facts.” Dowling said he felt the city would have achieved better results had it tasked a professionally led committee of stakeholders with recommending rules, rather than merely responding to a series of two- and five-minute statements from residents on the issue, given at council meetings.

Councilor Eben Rose joined Dowling in voting against the zoning amendment that most concerns Frabotta, but not for the same reason. Instead, Rose said he felt the topic of short-term rentals was a code enforcement issue best handled entirely through land use zoning, rather than licensing.

In a Jan. 24 memo, City Manager Scott Morelli acknowledged the city’s code enforcement officer was never asked for a ruling on whether existing bans on “inns” in residential zones should applies to short-term rentals. Although many opponents of short-term rentals claimed repeatedly that this provision makes them “illegal” and all the city had to do was enforce the existing code, Morelli said, “there is no guarantee the CEO will determine the existing ordinance prohibits” them.

In an Oct. 30 email, City Attorney Sally Daggett advised a licensing process was preferable to trying to zone short-term rentals out of existence, because current zoning language is “unlikely to be dispositive in court.” Meanwhile, any new zoning definitions could be open to costly appeals that also might fall before a court challenge, Daggett said, because, “the Maine Supreme Court has recently been critical of municipalities and their drafting and administration/enforcement of municipal zoning ordinances.”

Frabotta, 36, is a Massachusetts native who has lived all over the country, including Florida for the last 15 years. A programmer for an international company specializing in enterprise resource and planning systems, he brought his family, including two young children, to Maine as the kids neared school age, primarily for the better schools, he said. Initially focused on Cape Elizabeth, he rented his current home from Murphy, before deciding to buy it outright, closing the deal last April.

Without a dog in the short-term rental fight, Frabotta admits he got interested in the issue late in the game, and only after watching how city councilors handled themselves, when watching a Feb. 6 meeting on cable access television.

“They don’t seem to realized their mics are on,” he said. “You could hear them moaning and groaning when people came up to speak. I think that is pathetic. I think they should not have got into the business they are in of they are not willing to listen to their constituents.

“And I don’t think a single one of them really listened,” Frabotta said. “I think they simply bided their time while people spoke and them went ahead and did what they wanted to do from the beginning – from day one, from everything I’ve seen. I don’t think that a process.”

Having researched his city since making it his home, Frabotta says he sees a pattern in council behavior, referencing the lawsuit over the Clear Skies Ordinance, which the council adopted in 2014 after a public referendum killed a similar provision drafted to ban “tar sands” oil from the city.

“With money allocated this year, that (lawsuit) will cost almost $230 per household,” Frabotta said. “They are already being threatened again with a lawsuit and their answer to that is to ignore it and to not go the same path and all the other towns and cities around us and created a committee and go through the process. They’re response has been, let’s just do it.”

Although he is largely concerned with the zoning aspect of the new rules, his petition calls on repealing the entire package, in favor of adopting a process more like the one suggested by Dowling, Frabotta said.

Others, meanwhile, object to Frabotta’s view that basic property rights have been unfairly infringed by the recent council action.

“There are probably episodes of ‘Star Trek’ or ‘The Flintstones’ where some creatures have absolute property rights, but one of the ways we civilize ourselves and make communities possible is to agree together on what what we will and will not tolerate,” said Cottage Road resident Jeff Steinbrink in a March 7 email. “We’ve made these kinds of mutual decisions in South Portland on everything from raising chickens to raising marijuana. So it shouldn’t surprise anybody that the city council and many of the rest of us spent several months deciding we won’t allow absentee landlords to operate little motels in our neighborhoods.”

“Mr. Frabotta’s petition to attempt to change the new ordinances in South Portland, under the guise that it is restricting homeowner’s property rights, is shortsighted,” said Patricia Morrison of Preble Street. “The new ordinances regarding (short-term rentals) in the city does not restrict property rights to homeowners, as being stated by Mr. Frabotta. What does Mr.Frabotta, a resident of a one year, have to gain from this petition?”

Meanwhile, City Planner Tex Haeuser suggested during a February planning board meeting that the point may be moot. During that public hearing on the new zoning language, Haeuser questioned if it was even necessary, as, during his near 30-year tenure, he has always interpreted the lack of a specific residential use allowance in city code to be tantamount to a ban.

“This is what I always understood for years and years to be, that if something was not permitted it was prohibited – that if someone had something that didn’t really fit, they could come in and try to have it added through an amendment process,” he said. “If that is not what was intended, they I think this is a very, very needed text amendment.”

According to City Clerk Emily Scully, the petitioners have until 4:30 p.m. Monday, March 12, to return at least 1,000 valid signatures from registered South Portland voters. That will force the item onto a city council agenda. At that point, the council can either vote to honor the petition or send the question to a referendum vote, Scully said. Per the city charter, the public referendum must be held between 30 days and 15 months of the council vote, and would most likely take place in conjunction with the general election in November, Scully said.

Anyone interested in the singing Frabotta’s petition can email him at sopo.rights@gmail.com.

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