WENHAM (AP) — A local family says the town has wrongfully tried to deny them the use of their home for short-term rentals, even though Wenham has no legal restrictions on such uses.
At issue appears to be the legal definition of short-term rentals versus a bed-and-breakfast or lodging house.
The family argues they’re just renting out rooms for one- and two-night stays, with no food or other services provided. But the town says it’s still a bed-and-breakfast operation, whether or not breakfast is served.
There’s is no permit in place for a bed-and-breakfast at the property, which was the reason town officials gave in issuing a cease-and-desist order this past fall.
Town officials also pointed to a town zoning bylaw on bed-and-breakfasts that said breakfast may be served at such establishments, but included no requirement that breakfast be served.
‘‘I think the state definition is that breakfast is included with a bed-and-breakfast,’’ said Kate Gallagher, one of the beneficiaries of the trust that owns the property, pointing to the new state law on short-term rentals that was signed in December. ‘‘That’s the only difference I can find between the laws and regulations.’’
Until a court says otherwise, she said, they will continue to rent rooms at 253 Larch Row, known as Hurdle Hill Farm.
‘‘A short-term rental is perfectly legal in the town of Wenham and the state,’’ Gallagher said. ‘‘We have not done anything to promote or get events, and there’s no food at this point.’’
Town Administrator Peter Lombardi declined to comment for this story, citing the ongoing litigation.
Gallagher has filed suit with trustees William and Henry Phippen seeking to overturn the cease-and-desist order from the building inspector and the decision by the Wenham Zoning Board of Appeals to uphold that order.
Hoping for a B&B
The Phippens, who are sons of the original owners, had received a special permit from the ZBA in 2017 to operate a bed-and-breakfast at the family homestead. It’s a 6,000-square-foot home, set back from the road, on nearly 14 acres. They and their five siblings were raised there.
But they appealed amendments that were made to the special permit after the board had voted to approve it on May 31, 2017, according to Gallagher. The changes involved the permit renewal process with the town and the allowed hours and days for functions, which Gallagher said would make it very difficult to run the business. They contend those changes could not be made after the vote was taken without another hearing.
That case is still pending in Superior Court and, as a result, the permit is not in effect.
Meanwhile, the Phippens — who live elsewhere in Wenham and Beverly — decided to rent up to five rooms at Hurdle Hill, starting in January 2018. Gallagher, who had taken care of the Phippens’ late parents, continued to live at the home and work as the innkeeper. She had previously run a bed-and-breakfast on Cape Cod.
So they listed the rooms on Airbnb and another service, while still maintaining the website that had already been created for Hurdle Hill.
At most, Gallagher said, they could entertain 10 guests at once. Most of their guests were parents visiting kids at college, usually nearby Gordon College or Gordon-Conwell Theological Seminary — or just visiting family in the area for a weekend. The neighbors were always supportive, she said.
And then, an article was put on the warrant for last April’s Annual Town Meeting seeking to regulate short-term rentals in town. Local regulations are allowed under state law.
In short, the proposal sought to establish an annual licensing and fee structure with the Board of Selectmen, required owners to ensure their homes met all building, fire and health safety codes, and limited short-term rentals to a maximum of four guests per home.
Gallagher and others argued the proposal was too restrictive. It was overwhelmingly rejected by residents at Town Meeting.
On Oct. 5, Building Inspector Brian Leathe issued a cease-and-desist order, saying Hurdle Hill Farm was being operated as a bed-and-breakfast without a permit.
Gallagher says she tried multiple times to discuss the issue with Leathe, and after finally meeting with him on Nov. 7, she says he told her he had never inspected the property and had only signed a letter he was handed his second day on the job from Town Administrator Peter Lombardi.
Gallagher appealed the cease-and-desist order in December, noting that there was no file on record about the property nor any complaints about it. But on Jan. 24 the Appeals Board voted to uphold the building inspector’s order.
Eventually, in February, Gallagher and the Phippens filed their second suit in Superior Court, claiming Leathe and the ZBA exceeded their authority and that the board’s decision should be annulled.
Last week, the town, through the Boston law firm of Pierce Davis & Perritano, filed an answer to the charges, disputing them.
‘‘The defendants acted in good faith, within their discretion, and in the reasonable belief that they were acting in compliance with all relevant state and local laws and bylaws,’’ they said in a court filing.
Gallagher said they are open to some reasonable regulations on short-term rentals, just not what was proposed last year. And they’re still hoping for a bed-and-breakfast permit.
‘‘It’s hard to understand what the motivation (from the town) is,’’ she said, ‘‘other than maybe there’s some fear about short-term rentals.’’
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