Taking the air out of Airbnb? (11)

(11th in a series of posts on Airbnb)

Been a good 6 months since Gadfly buzzed about the Airbnb issue, affecting several parts of the City but especially the Northside Historical District.

But interesting news.

April 26, 2019

Justia Opinion Summary

The Pennsylvania Supreme Court granted discretionary review to determine whether a zoning ordinance that defined “family” as requiring “a single housekeeping unit” permitted the purely transient use of a property located in a residential zoning district. This question arose based on the increasingly popular concept of web-based rentals of single-family homes to vacationers and other short-term users (usually for a few days at a time). The Supreme Court concluded that pursuant to its prior decisions in Albert v. Zoning Hearing Bd. of N. Abington Twp., 854 A.2d 401 (Pa. 2004), and In re Appeal of Miller, 515 A.2d 904 (Pa. 1986), the purely transient use of a house is not a permitted use in a residential zoning district limiting use to single-family homes by a “single housekeeping unit.”

Let’s chew on that last line again: “the purely transient use of a house is not a permitted use in a residential zoning district limiting use to single-family homes by a “single housekeeping unit.”

What else can than that mean than Airbnb in the Northside Historical District is not permitted.

Can we look forward to the end of Airbnb in the Northside Historical District?

The Gadfly family recently stayed in an Airbnb-type house for an extended stay in South Bend, Indiana, for the graduation of a granddaughter from the University of Notre Dame. It was a lovely stay. It beat the hell out of us all staying in separate hotel rooms.

The previously rather run-down neighborhood around campus is undergoing a change as dilapidated homes are being demolished and new homes are replacing them, new homes expressly built for Airbnb-type purposes.

Thus, that situation is quite different than what we have.

Nothing against the home-sharing industry. Fine in South Bend. It is actually kind of creating a “neighborhood” there. Home owners are for the concept.

Quite a different situation than what we have.

“Our neighborhoods are under attack” (10)

(10th in a series of posts on Airbnb)

The Old info about the Airbnb issue that Gadfly wants to fill in here in this post comes from the Sept 4 City Council meeting, the minutes of which have only recently become available.

Those minutes are available at Sept 4 City Council minutes (pages 2-16).

(All quotes here will be from the minutes, but, as we all know, the Council minutes by Louise Kelchner are very full and good, so that the minutes are virtually transcriptions of the speakers.)

Gadfly wants to provide this “old” information not only to fill a hole in the record of this issue on the blog but also to highlight the high quality of the resident commentary.

Remember, the full minutes are just a link away, and you are encouraged to use that primary source.

Remember, too, that this meeting occurred before the successful Oct. 5 hearing before Judge Manwaring reported on in post #7 and then the appeal of the Judge’s ruling by the owners this past week, as just reported here in post #9.

Gadfly remembers the Sept 4 meeting as one of the best of the year. The air crackled. Tension was thick. The issue was urgent, resident commentators were passionate, Council was involved and concerned, the City solicitor provided necessary factual framework (first time Gadfly had heard him speak at a meeting) to help keep everybody’s eyes on the ball.

In short, everyone was concerned about and frustrated by a continuing problem that a recent ordinance was supposed to fix. Why were the Airbnb rentals still occurring? Why wasn’t the City enforcing the ordinance?

After all, as Frank Boyer said, “our neighborhoods are under attack.”

The basic response to those kinds of questions was mundane and bound simply to raise the collective frustration level: lack of enough enforcer person-power. Chief City code enforcer (and new to the job, Gadfly believes) Michael Simonson detailed the burdens of his limited staff compounded by the fact that violators must be caught in the act, in flagrante delicto, which, of course, is almost always after hours and on weekends when his staff is not working. This latter point seemed a genuine surprise to everybody. High hopes and expectations dashed by workaday, practical realities.

Councilman Reynolds asked the key question: why can’t the City just shut down these rentals while waiting for the Northampton County court to make a ruling on the validity of the ordinance? City Solicitor Leeson provided an answer as basic and as understandable as Simonson’s and just as frustrating: the punishments in our ordinance are only fines and penalties (and we cannot even increase the fines or apply penalties until we get a first adjudication of guilt on the homeowner). And if the City wanted to go further to stop the businesses, it would have to show proof of guilt, which it would not have till it won the case before Judge Manwaring that was not coming up for a month. The City was trapped by circumstance, paralyzed at the moment.

Attorney for the HDNers (Historic District Neighbors) Tim Stephens did not improve anybody’s digestion by reporting that the ruling by Northampton County judge Dally could take months and even if in favor of the City, appeals could take years. His advice was to continue enforcement, pile up multiple fines as evidence of guilt, do it throughout the City so that multiple judges are involved, and on that basis petition for a preliminary injunction to halt operation. Even that might not work. The standard is high. But faint hope glimmered.

Enter the residents. Gadfly only began following City Council in January, so he went back to the minutes of the meetings of Nov. 21 and Dec. 5, where this STR ordinance passed its two readings. Large and eloquent resident commentary overwhelmingly favored passage of the ordinance. Go take a look. It’s great stuff! This time, however, similarly forceful resident commentary was aimed at urging the City to beef up enforcement of that ordinance.

Ron Yoshida held up the bleak image of Lisbon, which he had just visited, where Airbnb has swallowed half the historic district, and, emphasizing the need to set budget priorities to enforce the STR regulations and fight this cancer, he reminded us of the old Fram oil filter commercial: “Pay me now, or Pay me later!”

No need to look across the pond for an image of the cancer besetting us, said Stephen Antalics, just look across the river into the Southside, where nonresident landlords destroyed a vibrant community by buying up properties and turning them into student housing. The common denominator between the Airbnb and student housing is simple — it is profit. Be aggressive, fight with every tool you have, counseled Antalics: “You have history here, the death of the south side from a cancer that could spread across the river to the north side.” (Gadfly thought Stephen’s ex tempore here, the most striking, the most powerful he heard all year.)

Riffing on Antalics, Bruce Haines described the significant and dangerous difference between student housing and Airbnb as the difference between the neighbor you can at least get to know and a succession of neighbors you don’t know, will never get to know — a succession of complete strangers. Neighbors not at all.

Al Wurth pointed out that the City rules and regulations confer value, the value that provides incentives for home owners to pay the higher prices for houses in the historic district. The City provides assurance to people that where they move will not turn into a nightmare. And that requires a good deal of enforcement of those rules and regulations. “We cannot have let’s make a deal, we cannot have sharp lawyers getting around the law.” We must give that assurance so people will want to live in the District.

While other residents focused on what the City can and should do, Bill Scheirer focused on what residents themselves can do. Like being City watchdogs. Catching renters in flagrante delicto. Seeing renters arriving at an Airbnb site one day, Scheier hustled himself right to City Hall and fetched the enforcement officer, who issued a citation. And like being just plain ornery rascals. To wit, when using the library, Scheirer makes it a point to park in front of the nearby Airbnb house when he can, “just to deny them one parking space.” Citizen activism! You gotta love it.

And successful.

Shortly after the meeting the Bethlehem Press could report that “Donchez cracks down on rentals.” The Mayor moved to make staffing adjustments aimed at improving the policing of the rental sites: “Effective beginning this weekend, there will be an increase in monitoring and enforcement of Short Term Lodging Facilities throughout the City. We will now have on-call and proactive monitoring of our STL ordinance on Thursday and Friday evenings, as well as on Saturday and Sunday. The public is encouraged to call the City’s non-emergency number, 610-865-7187 and speak with a dispatcher, leaving your name and phone number so an inspector can call you back to assess the situation. The inspectors will be available to come out to the site, gather evidence, and cite new violators of this ordinance.”

Nicely done, gadflies.

Local Airbnb decision appealed (9)

(9th in a series of posts on Airbnb)

My mole in the bureaucracy informed Gadfly that the Oct 5 decision of local magistrate Manwaring against the home owners for specific violations made at his then toilet-less but now fixed courtroom on Broad Street has been appealed.

At that Oct 5 hearing, Judge Manwaring as much as said he assumed his ruling would be appealed.

And, though Gadfly may be mistaken, there seemed to be some sense that the ruling would be reversed on appeal.

The case was appealed to the Court of Common Pleas, which, Gadfly believes, is the same Court hearing the case on the validity of the Bethlehem Ordinance, which is the bigger, more fundamental issue here.

But Gadfly could be wrong. Much a rookie in these legal matters.

Any info that the NHD neighbors can share would be valued.

Here are the court documents so far:

Airbnb 1

Airbnb 2

Not much to see here.

Gadfly has reached out to homeowners Brew and Williams, as well as their lawyer, but they have not responded. The basis for their appeal of Judge Manwaring’s ruling is given in post #7 in this sequence.

We do not have their position in detail on the larger issue of the validity of the ordinance per se. Newspaper articles indicate that the basis for their appeal there is that the City should have enacted a zoning change rather than the ordinance, thus grandfathering their business operation. The owners have also made a case in interviews that they are preserving the properties and keeping them from being turned into apartments. Also, Gadfly supposes, they could make the case they they simply have the right to engage in lawful business. They did not appear at City Council at the end of last year to contest the proposed ordinance.

Regrouping on Airbnb (8)

(8th in a series of posts on Airbnb)

Gadfly would like to regroup here, both for himself and for new followers.

There are two somewhat related issues going on concerning the Northside Historical District. Gadfly got in on both late, tends to confuse them, and thus the two discussion threads are a bit helter-skelter.

The two threads are “Airbnb” and “2 W. Market St.”

The fear that neighbors in the Northside Historical District share in these two cases is, as resident Al Wurth tagged it, “creeping commercialization.” And the desire that unites all of us in spirit with the NHDers is, as Council President Waldron, put it, control of our neighborhoods.

In fact, it was these two cases that caused Gadfly to start the broad continuing thread on Neighborhoods here on the blog.

There’s a lot of Neighborhood activity: some are under assault, some attempting comprehensive revival, some engaged in focused planning.

Let’s focus just on Airbnb.  Aka “short-term rentals” (STR). Aka “home sharing.”

On the Airbnb issue, Gadfly wants to fill in some old info, add some new info, and bounce off this case to a general point about his followers.

So, since Gadfly’s presentation has been a bit helter-skelter and since new people are listening in, here’s a bit of recap.

And then there will be 2-3 posts in fairly quick succession while I fill in, add, and bounce.

Jay Brew and Mary Ellen Williams are renting three properties – 258 E. Market, 265 E. Market, and 4 W. Church St. — in the Northside Historical District through Airbnb.

The neighbors complained.

City Council passed an Ordinance regulating STR. (December)

The City cited the home owners.

The homeowners challenged the validity of the Ordinance in County Court. (June)

Renting continued.

There was significant resident complaint and discussion at City Council. (Sept 4)

The Mayor stepped up enforcement. (Sept 19)

District Judge Manwaring found the owners guilty of some specific violations of the Ordinance. (Oct 5)

The case in County Court about the validity of the Ordinance continues.

So there’s the background up to the new development Gadfly can add in the next post.

Airbnb on Broad Street (7)

(7th in a series of posts on Airbnb)

Now score one for the City and the neighbors of Brew and Williams, who turned out in good numbers to Judge Manwaring’s nice but small and temporarily bathroom-less courtroom.

Nicole Radzievich, “Here’s how a judge ruled on the first citations stemming from Bethlehem’s home-sharing law.” Morning Call, Oct0ber 7, 2018.

“The first round of citations involving Bethlehem’s new home-sharing law were upheld Friday. District Judge Roy Manwaring found that a trio of stately homes in a historic neighborhood violated the ordinance which requires inspections and a license to rent rooms or the whole home to overnight guests.”

“In making his decision, Manwaring said the city ‘narrowly satisfied’ its burden for the convictions and suspected that the defendants will appeal the case to Northampton County Court.”

“Leo DeVito, the defendant’s attorney, declined to comment after the two-hour hearing.”

Though DeVito declined to comment to the Call, Gadfly picked up these points from his concluding statement:

  • The City failed to cite the proper party
  • There was no evidence that the people in the properties were there for less than 30 days (a provision in the ordinance)
  • a citation without an address was a “fatal defect” (he won that point from the Judge)

So that’s where we stand now. The City/neighbors won in local court, but there seems to be expectation they will lose in County Court.

Here’s a reminder what the stakes are in this issue:

  • the homeowner’s right to run a business
  • the neighbors’ rights to good quality of life
  • the city’s right to protect residents
  • the city’s right to collect taxes
  • the hotels’ rights to be spared unfair competition

It’s a knotty issue.

And Gadfly’s interest in the resolution of this issue over who has power in a neighborhood is especially spurred by our developing thread on neighborhoods, for instance, Northside 2027 and the West Side Rose Garden.

(By the way, on Airbnd paying taxes, see How much has Airbnb paid in taxes in Pennsylvania?”)

Airbnb in Northampton County Court (6)

(6th in a series of posts on Airbnb)

Old news. Just filling out the record. Gadfly likes a full record.

In post #1 in this series on the Airbnb Controversy, Gadfly gave you a timeline. He now wants to bring you up to date before moving on to another neighborhood issue at 2 W. Market St.

In that timeline Gadfly said that there were hearings before Northampton County Court and before local judge Manwaring. The issue is renting three properties owned by Jay Brew and Mary Ellen Williams – 258 E. Market, 265 E. Market, and 4 W. Church St. — in the Northside Historical District through Airbnb.

Here’s info on the Northampton County Court front.

Nicole Radzievich, “Airbnb owners in Bethlehem score first legal victory in clash with city.” Morning Call, October 3, 2018.

On October 3, “The couple renting out a trio of stately, historic Bethlehem homes on the Airbnb home-sharing platform scored their first legal victory over the city. Northampton County Judge Craig Dally ruled against the city’s initial arguments to toss the challenge of its new home-sharing ordinance and is allowing the case to proceed.”

“Leo DeVito, attorney for the plaintiffs, argued in court papers that the restrictions should have been addressed through a zoning ordinance, and that the city didn’t go that route because it would mean those existing rentals in the historic district would have been ‘grandfathered in.’”

“The city argued that the ordinance affects properties citywide to protect the health and welfare of its residents. The city has the power to regulate that outside the zoning code”.

“In his nine-page ruling against the city’s preliminary objections, Dally said the city hadn’t met its legal burden yet to dismiss the case at this time.”

“’While it may be true, as Defendant contends, that the [short-term lodging ordinance] contains provisions at least nominally directed at health and safety of Bethlehem residents, this does not obscure the fact that the overall impact of the [ordinance] indicates that it is effectively an amendment to the city’s zoning ordinance, intended to classify and restrict a new use previously unaddressed,’ Dally writes.”

“The judge also pointed out that the city initially tried to cite the owners under the current zoning ordinance before creating the new ordinance.”

“If the plaintiff’s claims are true, Dally said, there is enough legal basis on which the plaintiffs could establish their right to relief.”

“The lawsuit is asking a judge to rule the ordinance invalid, allow the short-term residential rental business to continue and stop the city from prosecuting them under the ordinance.”

Score one for homeowners Jay Brew and Mary Ellen Williams against their neighbors and the City of Bethlehem.

Now on to the local judge.

STRs are commercial operations and belong in commercial districts (5)

(#5 in a series of posts on Airbnb)

Barbara Diamond enjoys retirement as Lehigh University Director of Foundation Relations by engaging in various activities and organizations hopefully for the betterment of the community. Her particular interests at the moment are preventing gun violence, local government ethics reform, and Bethlehem Democratic Committee work.

Dear Gadfly, I have watched Mr. Brew’s video a couple of times (and have taken note that it appears embedded in a number of the Morning Call articles about this issue, as well as a slide show of one of his short term rentals [STRs]. I’m still waiting for the Call to do a video featuring opponents’ arguments!) In response to his statement that he is preserving the historic houses for posterity, I say that all of us who reside in these houses are doing that without turning them into businesses that create negative impacts for immediate neighbors and the neighborhood as a whole. There is a considerable body of evidence about how damaging this is for neighborhoods, easy to find online. That is why cities across the country and all over the world are passing ordinances to regulate STRs. They are commercial operations and belong in commercial districts not in residential neighborhoods. They instantly cause residences around them to lose value — who wants to live next door to one? They remove houses from available residential housing stock so that individuals and families, the very foundation of a neighborhood, are closed out. The houses he bought were all previously single family residences. He did not “rescue” them; they did not need rescuing. As to his implication that his only alternative would be to turn them into apartments, I actually would prefer that because they would be homes for people who would be my neighbors, part of my community rather than be weekend destinations for people with no investment in my neighborhood or community. But that is not his only alternative. If he can’t get the rent he wants, he can sell them so that they can become a home for people who will cherish them.

Barbara