Minutes – Special Meeting
Cornwall Zoning Board of Appeals
November 5, 2015
Cornwall Library
Establish Quorum
Chairman Donald Bardot called the meeting of the Cornwall Zoning Board of Appeals to
order at 7:30 p.m. in the Cornwall Library meeting room. Present were regular
members Donald Bardot, Pricilla Pavel, Amy Worthington-Cady, Ann Schillinger, Nancy
Calhoun, Betty Spence and alternate member Joanne Wojtusiak. Fred Scoville was
absent.
Also Present: Board Attorney Perley Grimes
REGULAR MEETING
Notice of Appeal of the Cornwall Inn, dated June 18, 2015 of a June 8, 2015 Notice of
Compliance issued by the Zoning Enforcement Officer.
The Chair began this discussion summarizing the issues before the Board. First is the
issue of whether the ZEO erred in her decision regarding renting of houses to transient
visitors. That decision was made based upon her interpretation of the Cornwall Zoning
regulations Section 16.3 which defines “family”.
He reminded the board of the state statute explaining that any members of the board
who have an interest, either directly or indirectly, financially or personally, in the
outcome of this matter should recuse themselves. He polled the members and none
were disqualified themselves.
Ms. Wojtusiak questioned Ms. Calhoun regarding the statement she issued at the
beginning of the hearing process. Ms. Calhoun stated that she has no financial interest
as she no longer runs a bed & breakfast in town and has no personal interest in the
outcome. She stated that she has personal knowledge of the subject only because of
running a bed & breakfast.Chairman Bardot about the possible impact of a Board
member expressing their opinion prior to the Public Hearing being closed, on an appeal
that might be taken against a decision of the ZBA. The Chair saw no impact. Ms.
Calhoun pointed out that she had not expressed her opinion, but had simply raised
questions about the issue before the Board based on her knowledge and experiences
as a former B&B owner and that the concern raised was therefore irrelevant. Atty.
Grimes did not comment.
The Chair reminded the members that the zoning regulations in Cornwall are
permissive, which means that if a use is not specifically permitted in the regulations then
it is prohibited. Since the regulations are silent on short term rentals, besides bed &
breakfasts, they, on the face, aren’t allowed. The regulations do not define the term
“short term”. He stated that other terms such as accessory use and customary use are
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terms that the board should discuss relative to short term rentals. He referred members
to memos the Board has received from their attorney, Perley Grimes.
He noted that the members should take into consideration “past practice”, which means;
has the practice of renting out dwellings existed in Cornwall. Was this use commonly
and habitually established with the primary use of a single family dwelling? He stated
that he is well aware that long term rentals are used in Cornwall and short term rentals
are not contemplated in the regulations. Betty Spence said “or any rentals at all.” The
Board needs to discuss short term rentals versus long term rentals, what the difference
is and what is allowed in the zoning regulations.
Attorney Grimes explained to the board that two principals are involved here. The first
principal involved is the fact that regulations in Cornwall are permissive. Which means
unless the use is clearly allowed in the regulations, it is prohibited. The next step is to
look at what uses are allowed in residential zones. Uses permitted in the residential
zones are single family dwellings as stated in Section 3.4, 3.5 and 3.6. which state; “a
single family dwelling together with such other structures or uses which are accessory
thereto”. The next step would be to look at Section 16.3 of the regulations which define
an accessory use or structure as; “A use or structure which is subordinate to and is
used for purposes customarily incidental to those of the principal use or structure on the
lot.” So the board has to decide if allowing either long term or short term rental
arrangements are customary and incidental accessory uses to a single family dwelling.
Which means, is it a routine to allow daily rental to a non-family members without food.
The serving of food is the key touchstone to this issue. Because if food is prepared it
would be a B&B and would require a special permit
Nancy Calhoun asked if it couwould not be considered a change of use, because of the
financial aspect of paying for the rental, as it then becomes a business in a residential
zone. Attorney Grimes stated it could possibly rise to that, if the board finds that this
use is allowed. It becomes a de novo decision for this board, which means; to find facts
and to apply the pertinent zoning regulation to those facts. Is whether or not daily rental
of a room in a house in Cornwall, without food, to up to five people is ok, because it is
customarily incidental. That is a question of fact, and the board needs to recall the
written records submitted to the file, the oral testimony that was submitted and their own
general knowledge about the town. Is this use; temporary, one day rental without food in
a residential zone customarily incidental? He stated that that was not the issue raised
by Ms. Nelson in her decision. Her interpretation of the definition of “family” in the
regulations is what she based her decision on.
Ms. Wojtusiak stated that she knows of several houses in Cornwall that are rented out
during the holiday season and there is a large market for these short term rentals. Ms.
Pavel stated that she, as a real estate agent, only services rentals that are long term.
She doesn’t service short term rentals because of the paperwork involved. She has
worked with some families on Yelping Hill renting houses out for two weeks, nothing
shorter than that, most of the houses are rented out for the entire summer. She does
know of some homeowners that advertise on the internet and take renters for long
weekends or less.
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Nancy Calhoun gave her experience regarding B&B rentals, which is typically short
term, one or two nights. Her experience in living in Cornwall is that all types of rentals
are done, be it a long weekend, a summer rental or any other arrangement. She thinks
this new issue, with the internet being available for transient, short term stays is
changing the character of rentals. She believes this changes the residential
neighborhood to allow transients as opposed to rentals in accessory apartments or
B&B’s, which require owner occupancy. It was noted that Mohawk Mountain attracts
people that just want to rent for a weekend to ski.
Ms Wojtusiak made mention of the last P&Z meeting minutes which had an application
for an accessory apartment. In response to a question regarding owner occupancy of
the apartment, the minutes stated that the P&Z commission does not regulate the rental
of single family dwellings including those listed on AirBNB. She questioned what
enforcement could be pursued if this board decides against the ZEO’s decision on this
matter. She stated that she feels that this matter should be addressed by the Planning
and Zoning Commission to clarify what is and isn’t allowed as far as rentals in the town.
The rest of the board agreed.
Attorney Grimes stated that this appeal came before the ZEO under very limited terms
as to the B&B aspect of renting, which is the avenue pursued by the ZEO. The question
becomes; a one night rental of a room in a residence without food for money is that
something that is customary to residences in Cornwall? He stated that the Courts have
often held that use of the word “customary” places a duty on the board to determine
whether it is usual to maintain the use in question. The applicant did not rise to the level
of monthly rentals because, as an Inn Keeper, he was looking at this rental issue as
affecting his night to night use. The issue then becomes the fact that the board finds it
customary and usual to rent out rooms for one day or two days or three days without
food to transient people is customary in town.
The Board has the ability to fashion their decision on what they find customarily
incidental (rental of dwelling for a month, a weekend, etc.) to residential use in Cornwall.
The Board discussed the meaning and definition of “customary”. Attorney Grimes
stated that customary can also mean usual. The board agreed that long term rentals
have been ongoing for many years. The factual determination should also address the
issue of length of stay.
Nancy Calhoun statedsaid that while it was not our concern collecting money for the
State that she believes that one of the reasons people do not want to apply for B&B
permits has to do with money. The state requirements and taxes imposed defer people
from pursuing this. She stated that it was not difficult to get a B&B Special Permit.
Ms. Worthington Cady stated that the whole landscape has changed in terms of housing
or room rentals with the advent of the internet and websites such as AirBnB and it
behooves the Planning and Zoning Commissions in the state to rethink regulations on
this issue regarding safety, etc. for both the renters and neighbors regarding nightly and
monthly rentals. She recommended referring this important issue to the Planning &
Zoning Commission and the Board of Selectmen to review for the health and safety of
not only Cornwall residents but for the people traveling through.
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The Board asked their attorney for guidance regarding the outcomes of either affirming
or reversing the ZEO decision. Attorney Grimes stated that the board has the ability to
fashion the remedy if they vote to reverse the decision. They could recommend a
remedy. If the board affirms the decision, the ruling stands and P&Z could still change
the regulations and homeowners who currently rent out their houses would be
grandfathered in the use. Attorney Grimes pointed out the two major issues to be
looked at; a) the regulations are permissive and b) does the word family as interpreted
by the ZEO allow this use. If the board does not agree with that interpretation, then the
next issue which would be is there any conceivable way that, under these regulations, a
daily rental could come into play. Is such a use customarily incidental as an accessory
use.
The board members questioned what is customary and what amount of time a rental
would be customary. Ms. Calhoun noted that the State of Connecticut defined rentals
as over one month. Ms. Wojtusiak was concerned about limiting people’s ability to do
with their homes as they wish. Some homeowners use these rentals to pay their taxes
or subsidize their mortgage payments. A lengthy discussion ensued regarding safety,
health and money issues as they relate to this issue.
Attorney Grimes reminded the board that their decision needs to be based on the ZEO’s
interpretation of the regulation that allows rental of rooms, in a dwelling, to unrelated
individuals not to exceed five, provided there is no room and board furnished, and there
is no bed and breakfast (furnishing of breakfast). The board needs to determine if that
interpretation is correct based upon the use of the word “family”. Then if the board
thinks it is beyond that the board needs to look at uses that are customary and
incidental and think about times and lengths of stays. If the board agrees that the
ZEO’s interpretation is correct then the board should affirm her decision. But if the
board does not find with the ZEO then they have to go to the regulations and looks for a
section in which this use is allowed. The third question is, if it is not clearly allowed, is it
captured in the accessory use definition; customarily incidental.
Don Bardot moved to reverse the ZEO’s decision based on her interpretation of the
definition of family to allow rental of a portion of a house or room in a dwelling to
unrelated individuals not to exceed five, provided there is no room and board (furnishing
of meals) and there is no bed and breakfast (furnishing of breakfast), second by Nancy
Calhoun. The motion passed unanimously with a 6-0 vote.
Nancy Calhoun made a motion that the board finds that the rental of a dwelling for a
period of time not less than a month, using the State’s definition, is an accessory use in
Cornwall, and under a month would require a Special Permit. Amy Worthington Cady
seconded the motion. Voting in favor of the motion were D. Bardot A. Worthington
Cady, Nancy Calhoun, Ann Schillinger; voting against the motion were P. Pavel and B.
Spence. The motion passed 4-2.
The Board respectfully request that the Planning and Zoning Commission look at the
zoning regulations to address the issue of renting of dwellings.
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The Board thanked Attorney Grimes for his guidance on this issue. When asked about
enforcement, Perley stated that anything less than a month was in violation of the
interpretation and there would be the normal course of enforcement.
Approval of minutes - P. Pavel moved to approve the September minutes, A.
Worthington-Cady seconded and the motion passed unanimously,
Adjournment - P. Pavel moved to adjourn the meeting at 9:04 p.m., A. WorthingtonCady seconded and the motion passed unanimously.
Respectfully submitted,
Nancy Lacko
Recording Secretary
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