ZONING ORDINANCE SEC. 19-8-14. SHORT TERM RENTAL STANDARDS (recent amendments Effective May 12, 2021)
A. Purpose
B. Permitted Short Term Rentals
C. Short Term Rental Requirements
F. Standards
G. Suspension and Revocation of Permit
A. Purpose
Cape Elizabeth residents prize the peace and quiet of their residential neighborhoods. Some property owners have capitalized on the desirability of their neighborhood by renting our their property, especially during the summer months and holidays. Neighborhood residents are concerned that short term rentals take on the character of a business operating non a residential neighborhood. In order to preserve the fabric of residential neighborhoods, to minimize the negative impacts of transient occupation on adjacent residents, to maintain housing availability for long-term residents and to protect the public safety of visitors and residents, the operation of Short Term Rental must be efficiently and effectively regulated to balance the respective interests of town residents. The purpose of this section is to balance the desire of property owners to rent their properties to short term tenants and the desire of residents to preserve the peaceful quiet and enjoyment of their residential neighborhoods.
B. Permitted Short Term Rentals
The following types of Short Term Rentals may be allowed after obtaining all required permits. Short Term Rental types not listed below are prohibited. Only one Short Term Rental may be operated on a lot in a calendar year, and limited to only one of the Short Term Rental types listed below for the calendar year. For the avoidance of doubt, for example, if the owner of a Short term Rental receives a permit to be a "Primary Residence Hosted" type of Short Term Rental in one calendar year, then the owner may not switch the type of Short Term Rental to "Primary Residence Unhosted," (or another type) until the following calendar year. Where operation of a Short Term Rental must include that the Short Term Rental owner is "in residence," the intent is that the owner shall be living on the lot, or abutting lot as the case may be, and managing the Tenants.
1. Primary Residence Hosted. A Short Term Rental may be operated by a property owner in their primary residence when the property owner is in residence, including overnight, during the tenancy of the Short Term Rental tenants. The Short Term Rental must be located within the host's dwelling unit and not in an area functioning as a separate dwelling unit. Use of the property as a Short Term Rental must be in compliance with the rental intensity requirement.
2. Primary Residence Unhosted. A Short Term Rental may be operated by a property owner in their primary residence when the property owner is not in residence during the tenancy of the Short Term Rental tenants. The property may be used as a Short Term Rental for no more than forty-two (42) days per calendar year.
3. Seven (7) Acres Plus Short Term Rental. A Short Term Rental may be operated by a property owner in their primary residence or non-primary residence when the property owner is in residence or not in residence during the tenancy of the Short Term Rental tenants, where the lot is seven (7) acres or more in size. (Land abutting the Short Term Rental lot in the same ownership may be counted toward the minimum lot size. Abutting shall mean any lot that shares a lot line or is located directly across a road right-of-way from the primary residence. Abutting land used to meet the seven (7) acres requirement may not be counted towards more than one Short Term Rental). The property may be used as a Short Term Rental for no more than on-hundred eighty-two (182) days per calendar year.
4. Short Term Rental Adjacent. One Short Term Rental may be operated by a property owner in a non-primary residence when the Short Term Rental owner's primary residence is located on the same lot as the Short Term Rental or an abutting not. (abutting shall mean any lot that shares a lot line or is located directly across a road right-of-way from the primary residence.). The property owner must be in residence during the tenancy of the Short Term Rental tenants. The property may be used as a Short Term Rental for no more than one-hundred five (105) calendar days per calendar year. If a property owner operates a Short Term Rental Adjacent, the owner shall not operate any other Short Term Rental on the lot, or abutting lot, during the same calendar year. For Example, an owner operating a Short Term Rental Adjacent on a lot (or abutting lot) shall not be able to also obtain a permit for a Primary Residence Hosted Short Term Rental (or any other type of Short Term Rental) during the same calendar year.
C. Short Term Rental Requirements
1. Permit required. No Short Term Rental shall be advertised, rented, or operated without first obtaining a Short Term Rental Permit. A Short Term Rental Permit shall be valid for the calendar year in which the permit is issued. A permit application received more than thirty (30) days after the permit deadline, which shall be January 2nd of the year the Short Term Rental will be operating, shall be considered late. The property must remain in compliance with the Short Term Rental Permit for the entire calendar year in which the permit is issued. A Short Term Rental Permit may only be issued to the property owner of the lot where the Short Term Rental is located and lessee of the lot may not operated a Short Term Rental.
Failure to obtain a Short Term Rental Permit prior to advertising, offering for rent, or use of the Short Term Rental shall require payment of double the Short Term Rental permit fee. Once notified by the town that a Short Term Rental has been operated without a permit, a permit application shall be submitted within seven (7) calendar days or shall be considered an additional violation. The permit applicant must make a diligent effort to meet permit requirements.
The second failure to obtain a Short Term Rental Permit for a property within a five (5) year period shall result in a prohibition from obtaining a permit for the property for one (1) year.
2. Advertising. It shall be unlawful to advertise occupancy or use of a Short Term Rental that would violate Sec. 19-8-14 of the Zoning Ordinance. For the purposes of this section, the term "advertise" shall mean any form of communication for marketing that is used to encourage, persuade or manipulate viewers, readers or listeners into contracting for goods and/or services as may be viewed through various media including, but limited to newspapers, magazines, flyers, handbills, television commercials, radio, signage, direct mail, websites or text messages. No Short Term Rental shall be advertised that does not have a current Short Term Rental Permit. The Short Term Rental advertising must be consistent with the terms of the Short Term Rental Permit and must include the current Short Term Rental Permit Number. Advertising of the Short Term Rental must include the statement, "[The Short Term Rental] is available for one (1) rental per seven (7) day period [or in case of a Primary Residence Hosted Short Term Rental, two (2) rentals per seven (7) day period], and may be rented for a partial week as long as the Short Term Rental remains vacant for the remainder of the seven (7) day rental period."
3. Rental Intensity. No more than one (1) rental/use of the Short Term Rental may occur in a seven (7) day period, except that a Primary Residence Hosted may be allowed up to two (2) rental/uses in a seven (7) day period. When a rental or non-compensated use of the property by any one (1) individual or group, including but not limited to personal or family use by the property owner of an unhosted primary residence, of less than seven (7) day occurs, the property must remain vacant for the remaining portion of the seven (7) day period. Any tenancy of the property for less than thirty (30) days shall be considered operation of a Short Term Rental and require a Short Term Rental Permit pursuant to the terms of the Zoning Ordinance.
4. Registration Record. The Short Term Rental owner must (a) maintain accurate, up-to-date records of all rental transactions involving the Short Term Rental, including the number of tenants and the length of their stays, and upcoming reservations; and (b) present said information to Town inspection officials upon request. Failure of the Short Term Rental owner to provide this information within five (5) business days fo a Town request for the same shall be considered a violation of this section.
5. Multi-family and Multiplex Units. No Short Term Rental may be operated on a lot containing a multifamily dwelling unit unless all of the dwelling units are held in common ownership. No Short Term Rental shall be operated on a property containing five (5) or more dwelling units.
1. The Code Enforcement Officer shall have the authority to issue a Short Term Rental Permit.
2. The Code Enforcement Officer shall provide a Short Term Rental Application to be completed by the applicant and submitted to the Code Enforcement Officer accompanied by the Short Term Rental permit fee as established by the Town Council in the Town Fee Schedule. The form shall include a non-exclusive checklist of code requirements that the property owner shall demonstrate compliance with.
3. The Code Enforcement Officer shall determine if the form has been properly completed before any permit is issued.
4. The first time that a Short Term Rental Permit Application is submitted for a property, no permit shall be issued until the Code Enforcement Officer has inspected the proposed Short Term Rental property for compliance with the Short Term Rental Standards and compliance with building code requirements. Thereafter, renewal of a Short Term Rental Permit shall require inspection by the Code Enforcement Officer of the Short Term Rental property no less than once every five (5) years. When the Code Enforcement Officer does not conduct an annual inspection, the Short Term Rental owner shall certify that there have been no material changes since the last inspection by the Code Enforcement Officer. Any third party inspection information submitted with the completed form shall have been conducted within the twelve months prior to the permit being issued.
5. The Code Enforcement Officer shall review the permit application for compliance with the Short Term Rental Standards.
6. If the Code Enforcement Officer determines that the proposed Short Term Rental application complies with the Short term Rental Standards, a Short Term Rental Permit shall be issued. The permit may be subject to suspension by the Code Enforcement Officer if the Short Term Rental property becomes non-compliant with the Short Term Rental Standards, and may be revoked as provided in 19-8-14. (G).
The Short Term Rental Permit Application shall include the following information:
1. Location. The street address and map/lot number of the Short Term Rental property. If the property is not located on a public road, the form shall include directions to the property from a public road.
2. Contact Person/Owner Responsibility. The name of the owner of the Short Term Rental property and contact information, including address and telephone number. In addition, if someone other than the owner is acting as the local contact person, contact information for that person shall also be provided. If there will be different contact persons for different time periods during the year, the form shall include the applicable contact person for each time period. Regardless of who enters the Short Term Rental agreement, or who may be designated as the owner's contact person, the property owner shall be responsible for compliance with the Short Term Rental Ordinance provisions.
3. Availability. The registration form shall include when, during the calendar year, the Short Term Rental will be available for rental. If this changes, the owner shall notify the Code Enforcement Officer.
4. All information needed to demonstrate compliance with the standards listed in Subsection F below.
F. Standards
The Code Enforcement Officer shall issue a Short Term Rental Permit upon the applicant satisfying the above requirements if the following standards are met:
1. Code Compliance. An applicant's property, without limitation, must comply with the following building safety requirements International Residential Code IRC and the International Building Code IBC:
a. Smoke Alarms: A smoke alarm is required in each bedroom. A smoke alarm is also required outside of each bedroom and in the immediate vicinity. A smoke alarm is also required to be on each story of the dwelling, including basements and habitable attics. The alarms shall be interconnected as much as reasonably possible. (Reference IRC Section R314);
b. Carbon Monoxide Alarms: If a house. has an attached garage or a fuel fired appliance, a carbon monoxide alarm shall be installed outside of each bedroom and in the immediate vicinity. (Reference IRC Section R315);
c. Portable Fire Extinguishers: At least one (1) portable fire extinguisher shall be mounted in a prominent location. One (1) size / type 2/A is required or two (2) size/type 1/A extinguishers;
d. Emergency Lighting: At least one (1) hardwired emergency light with battery backup is required per 1200 square feet of living space. The lights must be positioned to illuminate the path of egress to the maximum extent. There also must be exterior lighting that is permitted to be solar powered. Exception: The house lighting has a backup power source that automatically activates.
e. The applicant shall provide floor plans of the dwelling unit that shows the location of the alarms, fire extinguisher(s), and emergency lighting.
2. Building Evacuation Plan. A building evacuation plan shall be prominently posted in the Short Term Rental property during the rental period.
3. Sanitary Waste Disposal. The applicant shall submit information demonstrating that adequate sanitary waste disposal is available in compliance with the Town of Cape Elizabeth Subsurface Wastewater Disposal Ordinance, as determined by the Code Enforcement Officer, or that the property is served by public sewer.
4. Parking. The applicant shall include a depiction of how parking will be provided for tenants and guests on the lot where the Short Term Rental is located and/or include a written agreement for off-site parking at a specified location, to comply with the Off-Street Parking Standards, Sec. 19- 7-8. Garage parking spaces not allowed for tenant use shall not be used to meet the Short Term Rental parking requirement. On-street parking by Short Term Rental tenants or guests is prohibited. No bus shall be parked at the Short Term Rental property during any rental period.
5. Rental Agreement Addendum. The Short Term Rental permit application shall be submitted with an addendum to be attached to Short Term Rental agreement between owner and tenant that shall be provided to all tenants. The Town shall not be responsible for enforcement of the rental agreement of addendum. The rental agreement addendum shall include the following:
a. Primary and secondary contact person and contact information. A contact person must be available to tenants at all times of the rental period (24/7);
b. Emergency responder contact information;
c. Building evacuation plan;
d. Maximum number of tenants and guests;
e. Parking arrangements, including a prohibition of tenants and guests parking on-street or in a manner that impedes access by emergency vehicles to the property or any other dwelling in the neighborhood;
f. Maximum number of tenants and guests allowed at the property;
g. Good neighbor guidelines;
h. Copy of the Miscellaneous Offenses Ordinance.
6. Limit On Rental Occupancy. The maximum tenant capacity of a Short Term Rental shall be limited to no more than two (2) tenants per bedroom, plus two additional tenants for no more than one (1) additional sleeping space.
If a Short Term Rental property is operated on a lot of thirty-thousand (30,000) sq. ft. or less in size, the Short Term Rental Permit shall not allow occupancy by more than eight (8) tenants at any time. The number of Short Term Rental guests shall be limited to eight (8) at any tine. On-site parking shall be limited to four (4) parking spaces.
7. Response Requirement. Failure of the owner/contact person to respond to a Short Term Rental tenant or guest inquiry during the Short Term Rental tenancy, including check-in, within thirty (30) minutes shall be considered a violation of Sec. 19-8-14, Short Term Rental Standards.
8. Good Neighbor Conduct. The Code Enforcement Officer shall consider any complaints received about behavior at the Short Term Rental that diminishes the peaceful quiet enjoyment of property by residents within one thousand fee (1,000) of the Short Term Rental property line. Disruptive outdoor behavior may include, but not be limited to, smoking, swearing, lewd gestures or conduct, late-hour noise, pet control, substance use, parking, and speeding. The Code Enforcement Officer may deny issuance of the permit based on complaints that the Short Term Rental owner, tenants, or guests have diminished the peaceful and quiet enjoyment of neighborhood residents. An appeal of the Code Enforcement Officer's decision to issue or deny a Short Term Rental Permit based on this standard shall be heard by the Town Council.
G. Suspension and Revocation of Permit
In addition to the provisions of Sec. 19-3-6. Violations, a permit for a Short Term Rental may be suspended or revoked if the Code Enforcement Officer determines that one or more substantiated complaints regarding Short Term Rentals of a property have been made in a three (3)-year period. The Police Department may provide a report of conditions observed in plain sight to the Code Enforcement Officer, but enforcement of the Zoning Ordinance shall remain with the Code Enforcement Officer.
1. Complaint. Any individual or town official may file and/or initiate a complaint against a Short Term Rental permit holder. If the Police Department or the Code Enforcement Officer receives a complaint, they shall visit the property. The Police Department shall generate a report of the facts its officers have observed upon a visit, and statements made to them regarding the Short Term Rental. The Police Department shall then forward the report to the Code Enforcement Officer.
When the Code Enforcement Officer receives a report from the Police Department, or the Code Enforcement Officer has responded to a complaint or independently investigated, the Code Enforcement Officer shall inspect the property and shall collect information related to the complaint, including notifying the property owner and requesting information regarding the complaint. Within five days of receiving a Police Report or complaint, the code Enforcement Officer shall determine if the complaint is substantiated. A complaint is substantiated when the Code Enforcement Officer concludes that one or more violations of the Short Term Rental provisions occurred.
2. First Substantiated Complaint. Once the Code Enforcement Officer has made a finding of a substantiated complaint, the Code Enforcement Officer shall notify the property owner in writing. The notification shall require the property owner to meet with the Code Enforcement Officer within five (5) business days from the date of the written notification, or such other time as is agreed upon by the Code Enforcement Officer, to identify ways in which the violation(s) will be corrected. The owner will agree to take all necessary measures to correct the violation(s), which measures shall be memorialized in a written agreement at the conclusion of the meeting and shall be fully implemented within one (1) week of said meeting unless another date is agreed to by the Code Enforcement Officer. Failure of the property owner to enter into such an agreement at the conclusion of the meeting will be deemed a second violation of the Short Term Rental provisions. In addition, the Code Enforcement Officer may suspend the short Term Rental permit for a term not to exceed thirty (30) days.
3. Second Substantiated Complaint. Once the Code Enforcement Officer has made a finding of two (2) substantiated complaints, the Code Enforcement Officer shall notify the property owner in writing that the Short Term Rental permit shall be suspended for the remainder of the permit year but not less than six (6) months. When less than six (6) month remains in the calendar year, no Short Term Rental Permit may be submitted in the next calendar year until six (6) months after the second substantiated complaint. Late permit fees shall apply. The notification shall require the property owner to meet with the Code Enforcement Officer within five (5) business days from the date of the written notification, or such other time as is agreed upon by the Code Enforcement Officer, to identify ways in which the violation(s) will be corrected. The owner will agree to take all necessary measures to correct the violation(s), which measures shall be memorialized in a written agreement at the conclusion of the meeting and shall be fully implemented within one (1) week of said meeting unless another date is agreed to by the Code Enforcement Officer. Failure of the property owner to enter into such an agreement at the conclusion of the meeting will be deemed a violation of the Short Term Rental provisions.
4. Third Substantiated Complaint. Once the Code Enforcement Officer has made a finding of three (3) substantiated complaints, the Code Enforcement Officer shall notify the property owner in writing that the Short Term Rental permit has been revoked for three (3) years.
5. Appeal. An appeal to the zoning Board of Appeals as an Administrative Appeal may be taken by any person aggrieved by a determination of the code Enforcement Officer pursuant to Section 19-5-2.(A).
6. Effective Date. The Short Term Rental amendments shall be effective July 1, 2021. Any Short Term Rental permit in effect and issued prior to July 1, 2021 shall expire on June 30, 2021. On June 1, 2021, the Code Enforcement Officer will begin accepting for review a Short Term Rental permit application that is in compliance with the Short Term Rental amendments that become effective on July 1, 2021. All Short Term Rental permits issued after June 30, 2021 shall expire on January 2, 2022.
The 2021 permit fee for any property with an existing short term rental permit shall be $250. The 2021 permit fee for any property that does not have a short term rental permit shall be $500. Commencing in 2022, the Short Term Rental Permit fee shall be determined in the Town Fee Schedule.