2018-03-23 / Community

Rental issue postponed until April meeting

By Duke Harrington
Staff Writer

SOUTH PORTLAND — A months-long, often acrimonious fight over property rights in South Portland, which has degenerated at times into bitter name calling, sidewalk confrontations and at least one restraining order, is now set to enter a new phase.

On Monday, March 19, the city council accepted a petition to overturn a pair of Feb. 20 council votes that limit the ability of those who own homes in residential districts to rent out rooms for periods of less than 30 days.

As required by the city charter, the petition now prompts a public hearing on the ordinances under question, set by the council for April 3. At that session, councilors will have the option to either formally repeal the new rules or send the question to voters. If the later option is selected, the council can set a date for that vote as far out as 15 months, or July 2019. However, the new rules will remain on hold until the matter is settled, meaning those who complained to the council about the rise of short-term rentals made possible by websites like HomeAway and Airbnb will likely have to endure at least one more season subjected to what many have referred to as “party pads” and “virtual hotels” operating in their neighborhoods.

A chief complaint among those who sought to overturn the new rules – which set up a licensing procedure for homeowners engaged in short-term rentals, required that the homeowner be present on site for the duration of any rental, and mandated that properties may be rented to no more than two adults and one infant at any one time – was that the council did not listen to their concerns. In its fervor to appease West End residents who complained of neighborhood disruption caused by a few sites, the council had thrown the same blanket over everyone, regardless of circumstance, they said. Although the council considered the issue at more than half-a-dozen meetings between October and February, some of which lasted to 1 a.m., that work had amounted to listening to a series of short speeches.

Those who opposed the new rules, including Preble Street resident Michael Frabotta, who took out the repeal petition, and Willard Street resident John Murphy, who took a stance in opposition, claimed the council acted almost entirely on anecdotal evidence of noise and traffic, with almost no empirical data on the underlying issues.

In a bit of break with its usual process, Mayor Linda Cohen said Monday the council would not debate or take public testimony on its votes to reconsider the Feb. 20 ordinance votes, sending the question to the April 3 public hearing. About the only comment came from Councilor Maxine Beecher, who said something Frabotta, Murphy, and others said they have been longing to hear.

“I certainly am ready to listen,” she said.

Meanwhile, several supporters of the new short-term rental rules urged the council to set a public referendum as soon as possible. Casting the issue as a divide as much over political ideology as public policy, Deake Street resident Peter Stanton claimed his side had the numbers to reaffirm the council action and uphold the new rules.

“We’ve had all manner of libertarians, absolutists on property rights, and grouchy conservatives run for this council in recent years,” he said. “They lost. It wasn’t even close.”

Meanwhile, Cash Street resident John Wibby faulted both sides.

“I am disappointed in everybody,” he said. “I don’t know why this has to be an ‘Us vs. Them’ situation, when it should be ‘Us vs. The Problem.’ We should all be looking at this as neighbors, to find a compromise.”

Frabotta turned in the petition March 12, having collected nearly 1,500 signatures with the aid of Murphy and a small cadre of volunteer circulators. There have been claims leveled online that paid petitioners were employed, but Frabotta said the drive was conducted by about 50 volunteers. Only one person, “who wanted to petition but did not have time,” paid someone else to do so in his place, Frabotta said.

According to City Clerk Emily Scully, 12 names were scratched out on the submitted petition forms and 151 were not signed by people registered to vote in the city. That left 1,289 names validated, more than enough to clear the 1,000-name hurdle set by charter – 5 percent of the number of registered to vote at the time of the last city election – to trigger council action.

Petitioning, however, was not done without controversy. Several supporters of the new rental rules, including former Mayor Rosemarie De Angelis, said Frabotta and others lied to residents about what they were doing, and why. One person, Walnut Street resident Sarah Gay, said she was subject to an “aggressive” and “deceptive” sales pitch by Frabotta and Murphy, even as she and her husband were wrestling groceries and three small children “actively having overtired tantrums,” into their home.

“We told (Frabotta) it was not a good time, but he insisted he would be quick,” Gay recalled in a March 19 email. “That promise was repeated every time we told him he had come at a bad time. While our children were begging to go inside, Mr. Frabotta shared a number of incendiary facts about the situation he was hoping to resolve, all the while moving his clipboard away from our sight and instead showing us a supplemental printed page of information about the petition.

“Even with direct requests to leave materials and go, Mr. Frabotta and his partner continued to insist that we sign before we leave,” Gay said. “They even offered to accompany us into our home to help with the groceries or children – which was, frankly, unsettling. Finally, I asked if signing would make them leave, to which they both cheerfully responded yes. We did, and only then did they leave our property.

“I will note that both men were outwardly polite through the whole interaction, which only made us feel more taken advantage of when we learned more about the situation,” Gay said.

According to Gay, who said she was largely unaware of the issue that has dominated council agendas for months, Frabotta and Murphy positioned their signature drive as an attempt to resolve a property rights issue, never mentioning that it was, in fact, an attempt to overturn a council action.

“The petition was presented as a new action,” Gay said. “He was clear that the petition was addressing existing issues, but that he was proposing something original that would fix and improve things beyond what was already done.”

Frabotta has never taken in short-term rentals, and said he has no plans to, even though he resides in the Willard Village- Commercial District, a small enclave of 12 lots that are now one of the few places on the east end free of the new restrictions. He only got involved, he said, after watching a council meeting on community access television and hearing councilors caught on open mics scoffing at Murphy and others opposed to the new restrictions. His issue since then, he said, is less with the new licensing process (adopted by a 6-1 council vote) than with an associated amendment made to the city’s zoning regulations (which passed 6-2).

The new zoning text clarifies that any use of residential property not expressly permitted in city code is forbidden. That, Frabotta said, turns on its head the previous presumption by many that 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. “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.”

However, City Planner Tex Haeuser said the zoning amendment was made merely to clarify the way things have always been enforced in practice.

“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.

In a March 19 email, Kennebunk attorney Durward Parkinson who specializes in municipal and land use law, and annually trains code enforcement officers and other municipal officials on land use and zoning issues through the Maine Department of Economic and Community Development, backed Haeuser’s interpretation.

Specifying that he is only speaking from his own experience and not on behalf of the Department of Economic and Community Development, Parkinson said, “It could be argued that not allowing short-term rentals (was always) understood because they were not specifically permitted under the ordinance. Adding language to the ordinance clarifying that uses not specifically listed are prohibited is good practice and serves as the proverbial ‘belt and suspenders’ helping guard against legal challenge.”

According to a Maine Municipal Association handbook for planning board members on file in the South Portland office of planning and development, “A zoning ordinance runs counter to the common law, which allowed a person to do virtually whatever he or she wanted with his or her land.” Citing a 1968 court case, Forest City Inc. vs. Payson, the handbook reads, “Ambiguity (should be) construed in favor of the landowner.”

Still, Murphy said any ambiguity can be used against unpopular or unconnected homeowners, which is why he and Frabotta cited potential home occupation uses not expressly listed in city codes as now potentially disallowed.

Haeuser, however, said the run-down of allowed home occupations given in city codes is a citation of similar examples only, and not a definitive list.

“It’s all open to interpretation,” Murphy said. “With this new idea that any use not listed is not allowed, what do you think the odds are that something I might want to do might not be deemed ‘similar’ (to the listed uses)?

“It’ll all depends on who you are and how much the city likes you,” Murphy said.

At Tuesday’s meeting, Winding Way resident Paul Fielding agreed.

“Even if it’s right and even if everything there is meant well, and even if all the other towns are doing it, this clause is bad because in the south I have seen people pass vague laws that then get enforced selectively against people they don’t like.”

Murphy has also claimed the new zoning text is poor policy because “South Portland could never afford the staff it would need to chase down every possible violation.”

Even now, it’s believed some residents are skirting the law, and not just on short-term rentals. Existing code bans “inns” from residential neighborhoods and several opponents of short-term rentals have claimed this means they were always “illegal” in South Portland. However, Frabotta said the city pointedly did not address that interpretation when crafting its new regulations. Murphy said he and others have engaged in shortterm rental deals for decades – since long before social media created the so-called sharing economy phenomenon – with full knowledge of city officials.

However, what has been a requirement is that home occupations must be registered with the city – and boarding homes were, and still are, listed as an allowed home occupation.

Even so, Simonton Street resident Dan Romano does not have his business, Home Radon Detection Company, registered as a home occupation.

Romano is the one against whom Frabotta took out a restraining order, after confrontations during petitioning. While Romano and De Angelis said they were only exercise their free speech rights when asking people to talk to them before signing Frabotta’s petition, Frabotta and Murphy said they were using “brown shirt tactics” to intimidate residents into not signing, interjecting themselves into conversations and allegedly placing signs they carried between the petitioner and potential signer.

Police were called six times to intervene over one weekend and, Frabotta has said Romano was especially combative in his approach, yelling loud enough to scare Frabotta’s wife and children and then “stalking” him throughout the city.

On Tuesday, Romano declined to comment on the protection order due to pending court action, other than to deem it “a kind of political character assassination.” However, he did acknowledge that his business is not registered as a home occupation, adding it is registered with the state.

“What I’ve always understood from the state is that a business like mine does not need any municipal approvals,” Romano said.

However, Code Enforcement Officer Matt Leconte said Tuesday that even though Romano does not see clients in his home, and even if the business only amounts to a desk and filing cabinet – Romano said he works almost exclusively out of his car – the presence of a business phone line to the home means it should be registered as a home occupation.

“See, right there, that shows exactly what I’ve said, that the city does not have a prayer of enforcing this new provision only that selectively and by its own whim,” Murphy said.

“Most of the people like me who do shortterm rentals, we want to be regulated. We’ve said that from the beginning,” Murphy said. “There should not be 14, 15, 16, people staying in a home for the weekend down here (near Willard Beach). But what the city has done is they’ve just gone too far with this (zoning text) change.”

Murphy, Frabotta and several others who spoke Tuesday urged the council to come back April 3 and repeal the ordinance changes, and to then create a task force of stakeholders to create regulations closer to rules recently adopted in Portland Cape Elizabeth.

But others see that as a drawn-out process unlikely to resolve anything, given the growing divide between the two sides.

Like Stanton, D Street resident Melanie Wiker urged the council to send voters the question of whether to uphold the new rules or not. In adopting those changes, the council acted responsibly and appropriately to address a concern raised by a growing number of residents, she said.

“(Short-term rentals) were already illegal,” she said, claiming the new rules at least allow a framework for some limited short-term rental options in residential neighborhoods.

“We have rules. And if you want to live here, you obey those rules,” Wiker said, inviting short-term rental proponents to relocate.

“There are communities that offer a free-for-all,” she said.

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