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The short-term rental debate: A Reason Gone Mad series (Part 1)

In the first of a four-part series, Bill Shein takes a deep dive into Great Barrington Selectboard conflicts-of-interest, the laws surrounding them, and the letter which brought them to light.

Last month, when I asked Leigh Davis, vice chair of the Great Barrington Selectboard, about the ongoing debate, controversy and intense rhetoric that have accompanied a nearly eight-month-long effort to craft a bylaw to regulate and possibly limit short-term rentals (STR), she summed it up this way: “We’re having a discussion that should have happened a long time ago.”

Indeed we are. And not just about Airbnb and VRBO and the importance of vacation rentals to the Berkshires economy, but also how to provide housing that regular people can afford, the influence of wealth on this region, the struggles of low-wage workers — and of those who need to hire them — and what kind of community we’ll have in the future.

It’s fair to say it has not always been a constructive, thoughtful discussion. Citizen Speak Time sessions at the end of selectboard meetings have grown intense. Davis and selectboard member Ed Abrahams, the leading critic of limiting STRs, have engaged in sometimes petty bickering during public bylaw-drafting sessions that have dragged on for hours. Facebook threads on Great Barrington’s community boards are sometimes heated.

But as home prices in Great Barrington rocket out of reach for low- and moderate-income residents, available and affordable year-long rentals remain scarce, and town officials, nonprofits, developers and regional planners work to find a path forward, the hard questions about these problems outnumber the answers. Or, more precisely, the list of questions far exceeds the number of answers that have, or likely could produce, a consensus among those fortunate enough to live, work and play here.

Graphic courtesy Berkshire County Board of Realtors

Perhaps foolishly — especially as the weather turns glorious — I’ve spent the last month interviewing people with varied perspectives on local housing: developers, affordable-housing advocates, elected officials, real-estate agents, vacation-rental property managers, people who earn needed income from STRs, renters, business owners and others, all with an eye on telling the story of this important moment.

In this series of four columns for The Edge, I’ll share their voices and ideas in the run-up to Great Barrington’s town meeting on June 6, where perhaps two STR bylaws will be on the warrant for voters to consider.

So let’s start at the beginning: Why did Davis decide to take this up? “When I started the discussion of short-term rentals, my purpose was to provide some guardrails. Not to stop people from monetizing their own properties, but to fortify Great Barrington and disincentivize investors who were coming in solely for profit,” she told me in an interview last week.

Leigh Davis
Leigh Davis. Photo provided

She first brought it up last September at a meeting of a joint housing subcommittee of the planning board and selectboard. The idea was not new: A few years ago, former selectboard members Kate Burke and Bill Cooke had also explored the possibility of some kind of STR limits.

Davis believed it was time for significant action. “I felt that, as a selectboard and as town leaders, we weren’t really addressing the housing crisis, so I brought it up in a bigger context of a lack of housing,” she told me. She pointed to Great Barrington’s 2020 Housing Needs Assessment, a report produced with help from the Berkshire Regional Planning Commission that highlighted striking data on affordability, housing availability, and the number of residents who were “cost-burdened” by spending more than 30 percent of their income on housing. At the time, the report found nearly half of renters in Great Barrington were cost-burdened, with the “vast majority” of them spending more than 40 percent of their income on housing. And the data in the report was almost out of date, as it was largely collected before the pandemic had a dramatic impact on housing availability

To Davis, the report was devastating. “One of the specifics in the report was that there was a zero-percent vacancy rate, and I hadn’t realized it was that bad. It raised alarms in my mind, and I started to focus on rentals,” she said. At the same time, she was hearing from friends and constituents about people evicted specifically because of short-term rentals — the same concern that former selectboard member Burke had raised in 2019. But there was no method to track those stories. “There’s no portal people can log into to report what happened to them,” Davis said.

Still, she felt the anecdotal evidence was convincing. “I couldn’t provide any hard data, but if your ear was to the ground, and you actually listened to people, and were empathetic, you would hear many, many stories,” she said. “And those voices weren’t being heard.” (This lack of data has become a primary talking point for her detractors.)

Early discussion of a possible bylaw was underway when the infamous “Monetize Your Vacation Home” billboard appeared on State Road, placed there by Lucas Merchant of MerGo Vacation Rentals. The company promised to “unlock the potential of your Berkshires home” with professionally managed vacation-home rentals.

Combined with what Davis said she was hearing from local business owners who couldn’t attract workers because of a lack of affordable housing, she began to research STR bylaws in “many, many other towns.” And so the discussion and drafting process in the housing subcommittee began.

Pedro Pachano speaks at a September 20, 2021 Great Barrington housing subcommittee meeting

A preliminary draft was produced last September by local architect and planning board member Pedro Pachano, who, along with Abrahams, has been deeply involved in the broader housing discussion through his work on the two boards and also via Pachano and Abrahams’ WSBS radio show, “It’s Not That Simple,” and its accompanying biweekly column in The Edge, which has focused largely on housing over the last year.

Over the following months, and amid growing rancor (along with broad input sought by Davis), that first draft would proceed through a long, torturous process and a dizzying, nearly-impossible-to-follow number of major and minor changes. That very public process offered unrivaled transparency but also created confusion, fear and uncertainty that surely fueled what has become an acrimonious debate.

Many difficult questions have framed the community conversation:

  • Will limiting short-term rentals actually increase the amount of available and affordable housing? (Opponents say it won’t.)
  • If it doesn’t immediately address the housing crunch, is a limit still necessary to prevent the crisis from getting worse and ensure more properties aren’t transformed into vacation rentals?
  • Will limiting STRs negatively impact tourism, economic activity, and employment for those whose income is at least partially tied to vacation rentals — as well as those who need STR rental income to afford to live in Great Barrington?
  • What happens to longtime residents whose retirement planning includes renting their home for part of the year?
  • Without regulation and limits, will the character of neighborhoods change if more properties become vacation rentals?
  • Will there be a significant loss of rental-tax income to the town that might otherwise be invested in housing programs?
  • Politically, did Davis — who told me she may have been “a little naïve” about the intense opposition that would rally against her evolving proposal — make a mistake taking up STRs as opposed to other housing-policy ideas? Will the rancor around STRs hurt future efforts on housing? Or, in the end, will the attention paid to housing this past year inspire action?
  • And, importantly, as several people interviewed for this series have said quite plainly, can Great Barrington make any significant progress on housing affordability without transformational change at the federal level that invests billions more in housing and also reforms our financial system?

There are varied opinions on these questions across our community that are all worthy of consideration. Some answers can’t be determined from existing data alone, such as it is. Indeed, as noted earlier, many opponents of STR limits have focused their ire on “a lack of data,” suggesting there’s no evidence STR limits will do anything to improve the housing situation. (Later in this series, I’ll discuss that data challenge, including a recent, enormously useful 1Berkshire report on regional housing that specifically called for new efforts to aggregate housing data and metrics to better guide policymaking.)

So where is the selectboard’s proposed STR bylaw, and the state of debate, with less than a month to go before Great Barrington’s town meeting — as those on all sides of the issue prepare for a final, possibly contentious battle?

Ed Abrahams.

When I spoke to Abrahams about where things stand — as part of a longer conversation we had about ideas that will be explored in this series — he said he was frustrated by all the time and attention paid to short-term rentals that he believes could be better spent on other housing challenges.

“We have never held an emergency or special meeting to deal with affordable housing,” he told me last week. “But we’ve had half-a-dozen of them for short-term rentals.” Later in our conversation, he said, “We’re not talking about things that can actually create housing.”

Abrahams said he feels that Davis and other supporters of STR limits have not been responsive to concerns raised by opponents. In particular, he highlighted the impact that limits would have on older residents counting on short-term-rental income to fund their plans for retirement. “The people who are pushing this are not listening to the people who are opposing it,” he said.

But is that really true? Abrahams’ ferocious opposition, alongside robust public input by opponents over many months, has, in fact, changed Davis’ proposal from highly restrictive to substantially less so. The current draft, which, pending resolution of ethics-law questions (see below), is scheduled for debate and a vote by the selectboard at its meeting on May 11, permits any property owner to rent a single property for up to 150 days of short-term rentals (which doesn’t include rentals of a month or more); to rent rooms in their home as much as they like if they are present; and allows anyone who had multiple STR properties registered with the state as of January 1, 2022, to continue to rent them, subject to the 150-day limit. Properties owned by corporations would not be permitted to do short-term rentals, while limited-liability corporations (LLCs), which are sometimes used by individuals for tax purposes, would still be able to do so under most conditions.

So the proposal has evolved substantially since last fall, when it would have excluded second-home owners entirely from short-term rentals and limited residents to just 90 days of short-term rentals of their primary residence. The initial opposition came from those who own and manage vacation rentals, second-home owners, and from Abrahams, who was adamant that treating primary residents and second-home owners differently was unnecessarily divisive and would have negative economic effects. His argument won the day. In fact, the changes made since last fall speak to the kind of active citizen involvement in local politics that Abrahams has championed since he first ran for Selectboard in 2014.

Yet as I write in early May, it’s possible the proposed bylaw hammered out over many months may not even make it to the warrant. That’s because a thicket of alleged conflicts-of-interest have stalled the process. It’s a story that hasn’t been fully told and that’s left many wondering exactly what happened and whether this month-long, ethics-related delay is in some way part of a broader, organized strategy by opponents to block any significant limits on STRs. And perhaps deny voters a chance to have their say.

Indeed, it was Abrahams, the leading opponent of restrictions, who first floated the question of broad conflicts-of-interest as far back as a housing subcommittee meeting on September 20, 2021, when chair Pedro Pachano said that Abrahams had raised the question of conflicts with him — specifically, whether any elected official who owns property in town would have a conflict requiring recusal. At the time, no one, including Abrahams, chose to recuse themselves on that basis alone.

The living room of a short-term rental in Housatonic owned and operated by selectboard member Ed Abrahams’ fiancée. Photo via Airbnb

Then, in early March, after months of contentious debate, the question of conflicts moved front and center. Reporting by The Edge and The Berkshire Eagle revealed that Abrahams’ fiancée, who lives with him, owns a property in Housatonic that she rents as a short-term rental. This brought to light Abrahams’ filing, last November, of a state-mandated form, “Disclosure of Appearance of Conflict of Interest,” that described some, but not all, of his connections to his partner’s STR. He didn’t mention that, in December 2020, he loaned her $200,000 toward the purchase of the Housatonic property via a mortgage that was registered with the South Berkshire Register of Deeds. (The mortgage loan was repaid in full and discharged less than five months later, in May 2021.)

Abrahams quietly filed his ethics disclosure with the Great Barrington town clerk but never made a public announcement at a selectboard meeting, as recommended in the Massachusetts Ethics Commission’s guidance to selectboard members. He said he called the commission, which provides free and unlimited legal advice to officeholders, and was told to file the appearance-of-conflict form and did so. But, he has said, he was not initially told to make a public statement. In a follow-up call with a commission attorney, he was then told about the recommendation to make a public pronouncement.

At the time, Abrahams refused — and continues to refuse — to acknowledge that this financial connection is significant to voters and pertinent to how they view his decision-making on a matter with substantial financial implications for many in Great Barrington, including his partner. In a letter to The Edge, and in subsequent interviews, he has reiterated that he followed the dictates of the state ethics law, which he did. Yet despite the $200,000 loan, and living together, he insists their finances are separate. That the ethics law, passed in 1963 and amended most recently in 2011, still does not consider domestic partners to be “immediate family” or a close relative is surely overdue for an update to reflect modern relationships.

His letter-to-the-editor also claimed that a commission attorney called him back and said that simply owning a home was also a conflict requiring recusal, injecting that notion into the debate again and perhaps fueling distrust. (“These people are all so conflicted,” one real-estate agent told me, describing Davis and other selectboard members who support her efforts.) Abrahams called that “an interesting twist.” He also told news organizations that he would ask the commission for its opinion on these matters in writing, but never did, telling me last week that he was frustrated with press coverage of his personal life and so decided not to pursue it further. (He also told me that The Berkshire Eagle’s coverage was appropriate but did not care for details shared in The Edge’s news coverage, which included photos taken from his personal, yet public, Facebook page.)

On March 30, amid this scrutiny and just as the selectboard was to consider a near-final version of an STR bylaw that had been improved by town-hall staff to address various concerns raised by residents — and that was likely to pass with the required three out of five votes (selectboard member Eric Gabriel had previously recused himself because he owns rental properties) — Abrahams announced he received an email alleging that under the ethics law, selectboard chair Steve Bannon, Davis, and Abrahams all had a “presumed financial interest” in the STR bylaw because, the email said, they were all “abutters” to homes rented as short-term rentals. The email listed the street addresses of the three officials and of the STRs that were, the sender suggested, considered close enough to require recusal from participating in the STR debate or voting to put a bylaw on the Town Meeting warrant.

In the email thread, which I reviewed following a public-records request by The Edge, Abrahams advised the sender that the email should be sent to all selectboard members. And it was: The next day it arrived in mailboxes just minutes before a selectboard meeting during which a public-input session and further discussion of the bylaw was planned. In the email sent to all board members, the last name of the sender was changed to just an initial: “Allison B.” And the sender claimed the email was sent a day earlier: “I sent this yesterday but for some reason is [sic] got into my outbox instead of sending.”

Bannon, clearly perturbed that an anonymous email and Abrahams’ claim that the commission said he “absolutely had to recuse” himself was sprung on the board without notice, had a brief back-and-forth with Abrahams, who repeated, “I am an abutter.” Bannon then decided to table discussion of the STR bylaw and postpone the public-input session until he could receive an opinion from David Doneski, a lawyer with the firm KP Law who serves as Great Barrington’s town counsel.

Davis appeared stunned at this sudden development. She expressed her frustration and made a passionate case for listening to the stories of “people who are too busy [to speak to the selectboard] or working too hard or who have been evicted.” Bannon, who expected that night’s work to finally wrap up the bylaw-drafting process in advance of a vote, read a previously prepared written statement calling for unity and for moving forward on other vital town business. For someone with a typically calm and steady presence, his unhappiness was easy to see.

More than a week later, at the next selectboard meeting, Davis announced that she had made a public-records request for any email correspondence between Abrahams and the sender of the “abutter” email. A subsequent public-records request by The Edge produced the original email exchange between Abrahams and “Allison Bailly,” someone The Edge has not yet been able to confirm as a local resident, who also doesn’t appear as a living person in a broad LexisNexis search on her name, and who hasn’t responded to an email inquiry — all of which suggests the name could be a pseudonym, however unlikely that seems. The records request also produced a printed note Abrahams addressed to Davis and gave to all selectboard members along with a paper, but not digital, copy of the original email exchange — making the email thread harder to read. (He did not forward the original email to other board members.)

In the April 12 note, Abrahams told Davis she didn’t need to make a public records request. “All you had to do was ask. I have no secrets.” Abrahams’ note continued, with the edge that has marked his interactions with Davis for months: “I’m not sure why it matters who wrote [the email]. I was a communications major in college. We were taught that ad hominem arguments, where you try to pick apart the speaker rather than the argument, is a sign you don’t have an argument. If you think there’s something incorrect in her letter, say so. Who she is and even what her motive is, should be irrelevant. Either we can invoke the rule of necessity or we can’t.” (In Massachusetts, the rule of necessity permits boards to act even when documented conflicts-of-interest prevent them from achieving a quorum — but only on matters for which they are legally required to act, such as setting a local tax rate.)

A note sent from Great Barrington Selectboard member Ed Abrahams to member Leigh Davis on April 12, 2022.

Irrelevant? Especially considering his partner’s income from STRs that was revealed a few weeks earlier, there’s no doubt this information is important. And the identity and motive of a person who drafted and sent an email that derailed the selectboard’s ongoing process is also relevant, especially considering it was first sent, apparently, only to Abrahams, the board’s sole participating opponent of meaningful limits on short-term rentals. As to motive, a reasonable observer could assume it was to help Abrahams scuttle the STR bylaw.

“I get why people care, though to me that’s gossip,” he told me about earlier reporting on his fiancée’s STR rental property. “And if I actually did violate the conflict-of-interest laws, I get why that matters. But I didn’t, it’s been established that I didn’t, now let’s move on to what I’m saying, which is that people are going to be hurt by this, the town is going to lose tax dollars, and it will not create housing,” he said.

“Even if I were making money at [short-term rentals], other than the conflict-of-interest it doesn’t mean what I’m saying isn’t relevant, it doesn’t mean that I’m wrong,” he added.

In curious ways, Abrahams’ insistence that his views on housing policy should trump any public concern about his partner’s short-term rental property, or information about who drafted and sent an email that has stopped progress on the selectboard’s STR bylaw for more than a month — and perhaps permanently — speaks either to truly unimpeachable, unquestioned, perfect integrity, or, dare I say, to a certain hubris. Absent a violation of the ethics law — which has a significant loophole regarding the financial interests of domestic partners — Abrahams seems to believe he should simply be trusted to always do the right thing, his motives never questioned. And that his arguments, which are certainly informed and credible on their own, should be all that matter to voters.

On April 13, Davis took Abrahams up on his challenge to “say so” if she believed the “Allison” email was incorrect about the conflict-of-interest law. She alerted town officials that the email’s suggestion that she, Abrahams, and Bannon would need to recuse themselves was likely an inaccurate reading of the ethics law. And she may be right.

The conflict-of-interest law doesn’t presume a financial conflict if an official is simply within 300 feet, in any direction, of a property that could be impacted by a board’s decision. The municipal official’s property must meet one of three very specific conditions: (a) Be directly across the street, (b) be an abutter (with a shared property line), or (c) be an “abutter to an abutter,” which means the three properties must be contiguous and the official’s closest property line must be within 300 feet of that second abutter. Confusing? Perhaps. But Davis created maps that showed none of the selectboard members’ homes met any of those necessary conditions.

She requested that town officials ask Doneski, the town counsel, to review the information she circulated and ensure it was shared with the commission’s lawyers, who were by that point presumably examining the matter. She told me last week that she doesn’t know if there has been a response from Doneski or from the commission.

I reached out to Doneski three times over the last several weeks, twice by phone and once by email. He wouldn’t comment, which isn’t surprising for a town’s attorney, much less one in the middle of a contentious issue. Still, this weeks-long delay — based on information that should have been quickly fact-checked by a town counsel whose firm represents one-third of Massachusetts communities as town counsel or city solicitor, and that provides municipal-related legal services to 100 others — has prevented the board from moving forward. The still-unexplained delay has also blocked the selectboard from hearing from more citizens on all sides of an important issue, concluding its work and then putting the matter before voters. Timely action could also help the board find a way forward if a change in approach is required by the commission’s guidance.

David Doneski. Photo courtesy the KP Law website

When I asked Abrahams about the curious email and alleged conflicts, he said he doesn’t know, and didn’t have any other communication with, the sender. “I don’t know who she is. I didn’t have any other interaction with her other than those emails,” he said.

I also asked about his call to the Ethics Commission after he received the email. He confirmed that he told the lawyer-on-duty only what the email claimed: That he was “an abutter” within 300 feet of a short-term rental. So the advice of a commission lawyer was that he “absolutely had to recuse” himself, as Abrahams said at the March 30 selectboard meeting, even though, it turns out, he relayed imprecise information: Abrahams is not actually an abutter as defined by the law. Given the complexities and often confusing language of the ethics law, it’s surely not the first time a municipal or elected official has erred in this way.

In the end, though, the law’s definition of a presumed financial interest may not matter. Why? Because the ethics law also has a provision (Chapter 268 Section 19, paragraph (b)(3)) that makes any presumed financial interest due to proximity inapplicable if the action under consideration by town officials is a “matter of general policy” that would impact a “substantial portion” of residents, which the commission has defined as at least 10 percent of the population. Given that substantially more than 10 percent of Great Barrington residents live in homes they own and that they could choose to rent as short-term rentals — regardless of whether they do so currently — this also suggests this matter could have, and perhaps should have, been quickly addressed by town counsel so the selectboard could move ahead, pending any other legal complexities.

Indeed, looking around the Commonwealth at the many municipalities that have debated or passed short-term-rental regulations over the last several years, I have not found any recusals for proximity to a short-term rental property as defined in the ethics law. (Which is not to say they haven’t occurred; specific reasons for recusal don’t need to be made public.) Some municipal officials in other towns, like on Nantucket, recused themselves because they work in real estate or own rental properties. But in no case has there been a town where — as Abrahams has suggested could be the case in Great Barrington based on information in the surprise email, combined with Eric Gabriel’s separate recusal — enough members have a conflict requiring recusal that the selectboard could not achieve a quorum. And therefore, it could not take up any STR-related issue in any way.

It’s important to disclose that I contacted half-a-dozen local attorneys seeking comment on the legal issues raised by the ethics-law controversy and for comment on other questions of relevant real-estate law. Except for one, who said the ethics law is outside his area of expertise, none would speak on the record. Most didn’t respond to email and voicemail messages. Given the heat and light of a controversial local issue like this one, that’s not unusual. Also, the work of the Ethics Commission, and any advice its lawyers provide to municipal officials, is strictly confidential unless and until the municipal official decides to make it public. That said, I had helpful conversations with several attorneys outside our region and with others who are familiar with these issues.

It will become clear in the next few days whether months of hard work by Leigh Davis, elected town boards and town staff — as well as many hours of serious engagement by countless residents — will result in a short-term-rental bylaw that Great Barrington voters can weigh in on at town meeting on June 6. That’s how it should work, with citizens on all sides given an opportunity to participate and vote after a drafting process that includes public input and debate — which in this case has changed the proposal substantially from its early drafts. Or we’ll learn if this nearly six-week-long pause, initiated by what could be a faulty or incomplete reading of Massachusetts’ conflict-of-interest laws that was introduced by a curious email, and then followed by an unexplained delay by town counsel, will effectively block it.

– – – – – – –

UP NEXT: It’s no secret that the most outspoken opponents of restricting STRs in Great Barrington are those connected to the real-estate and vacation-rental industries. In fact, back in January several of them came together to draft and submit via citizen’s petition an alternate STR bylaw that will be up for a vote at town meeting regardless of what happens to the selectboard’s proposal. That bylaw, and its supporters’ perspectives on short-term rentals and the local economy, will be the subject of my next column.

Bill Shein’s weekly Edge column is normally far, far shorter than this one.

[CORRECTION: This article has been updated to reflect that the Massachusetts conflict-of-interest law was most recently amended in 2011, not 2009.]

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