Airbnb debate: Sussex prohibits widow from renting her home

Barbara “Bobbi” McClay felt like she had no other choice when she went in front of the Sussex County Board of Adjustment in October to ask permission to rent rooms in her Lewes home through Airbnb.

Now, she may be the first person in Delaware specifically prohibited from renting through the online home rental site.

McClay's husband, Bill, died in 2012, leaving the 70-year-old with two mortgages. So she started renting rooms in her Lewes home in September 2016. Airbnb is an online marketplace that allows homeowners to rent out rooms or the entire unit. The platform is rarely regulated or required to pay taxes like hotels. 

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She says the people who stayed in her house were quiet and orderly, but neighbors spent the next seven months calling her, threatening legal action and complaining about her at neighborhood meetings.

"The neighborhood told me I was breaking the law," McClay said.

She thought filing for a special use permit would end the conflict and allow her to use Airbnb like hundreds of her Sussex neighbors. This spring and summer, $4 million worth of Airbnb business took place in Sussex, according to the company. 

McClay's special-use permit application sought permission to rent rooms through Airbnb at her Lewes home.

But the county Board of Adjustment denied McClay’s request to use Airbnb in October, basing its ruling on the testimony of neighbors who claimed McClay's hosting guests threatened their community. 

McClay said she never had a party of more than eight and never rented more than two rooms at a time. During her 21 rentals since September 2016, McClay was home for all but one.

Of six neighbors who testified to the Board of Adjustment, not one reported seeing or hearing a guest, according to the audio of the meeting.

"I'm not looking to destroy my neighborhood," McClay told the board, pausing to wipe away tears. "My home was built by my husband. He passed away. It's a beautiful home, and I would never bring anyone in to ruin my home."

McClay hosted guests in an upstairs bedroom — part of a 3,800-square-foot cabin tucked deep in the Woods on Herring Creek community.  With about 170 homes in the neighborhood, most occupy nearly an acre of land. 

A handful of her neighbors feared renting the rooms would change their quiet community for the worse. 

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“The neighbors were concerned about strangers coming in here,” said Carolyn Ludwig, director of the Woods on Herring Creek Homeowners Association. “And then we were really concerned about the property value of our houses going down if you start that.”

By renting two rooms in her home, the five-member board classified McClay’s house as a bed-and-breakfast or a tourist home under county code, which required her to apply for a special use permit.

The code defines a tourist home as a dwelling having more than six rental rooms per guest.

County code is not explicit on how Airbnb should be classified, however.

“The code doesn't address Airbnb specifically, let's be clear about that,” said Chip Guy, Sussex County public information officer. “I don't know if you're going to find many codes in any local or state jurisdictions that gets into that kind of specificity.”

Guy would not say whether every Airbnb host in Sussex County is required to apply for a special use permit.

For now, things will be addressed on a case-by-case basis, he said. If there is a complaint, the county will look into whether county code was violated.

Planning and Zoning Director Janelle Cornwell wrote in an email that she could not discuss an ongoing case, noting that oral decisions do not become final until the written decisions are approved. 

"We are historically a complaint-driven process,” Guy said. “This is why it (Airbnb) is considered under the code to be akin to a bed-and-breakfast inn and they're dealt with on a case-by-case basis."

Nuanced choices

For years, McClay and her husband, Bill, lived in Garnett Valley, Pennsylvania, vacationing at the cabin in Lewes, which was built in 2000 by Bill and their three sons.

"My husband liked the woods, and I liked the ocean," she said. "So that's how we ended up here."

After Bill’s death in 2012, McClay continued to work as a registered nurse at Crozer-Chester Medical Center until she retired in February 2016.

She was so attached to the memories in those pine walls, McClay decided to live at the Lewes cabin.

Using Airbnb allowed her to afford that and gave her some occasional company.

"I had two choices," she said. "I sell this and go back and stay in Pennsylvania, or I come down here."

Selling the cabin was never an option.

"We built this — this was supposed to be our retirement home," McClay said. "When you build something, it's not the same as signing on the dotted line. The amount of time we put into this, the energy — you just can't explain it."

McClay continued to host without incident until January 2017, when she shared a Facebook post promoting her home on Airbnb. 

Word spread through the neighborhood, prompting some neighbors to form a committee and lodge numerous complaints to county's Planning and Zoning board. 

From April to July, that committee devoted three community meetings to shutting down McClay's Airbnb.

It began with a petition and contemplation of a lawsuit, and ended with increased pressure on McClay to get county approval. 

"She didn’t go about it the right way,” said Karen Gastel, a member of the committee. "She's operating a business, and our community bylaws prohibit running a business from a residence."

McClay should have checked with their homeowners' association first, Gastel said, and that her reasoning for using Airbnb to supplement her income wasn’t consistent.

“She said her husband had just died — her husband had not just died,” Gastel said. “It has been six years, at least, since her husband died.” 

After nearly 10 months and less than 20 renters, McClay filed for the special use permit.

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At the October hearing, members of the board and neighbors who testified alternated between referring to McClay's home as a bed-and-breakfast and a business. 

“If we did approve this and she sold that property, would that bed-and-breakfast go with it?” one board member asked.

Airbnb is not explicitly defined anywhere as a bed-and-breakfast.

Where Airbnb allows homeowners the discretion to share extra rooms in their home or entire units for a limited number of guests and days, a bed-and-breakfast hosts multiple guests at one time and requires a specific type of license — like a hotel.

According to Crystal Davis, an Airbnb press secretary, the site aims to be an alternative to hotels.

“I think the distinction is that for Airbnb, the people that are primarily using our platform to share their homes are only doing it a few times a year, versus what you would see with a hotel or a traditional bed-and-breakfast that's done year-round,” Davis said. “Our folks are only doing this as an extra, supplemental income.”

Because the distinction between an Airbnb and a bed-and-breakfast can be subtle, Airbnb leaves it to local laws.

In Sussex County, those nuances leave room for debate. 

County code defines a temporary rental, or tourist home, as a space not having more than six rental rooms for guests. Tourist homes are permitted in the AR-1 MR and GR residential zoning district if the property owner obtains a special-use exception from the board.

Airbnb is something that is a fairly recent trend in the marketplace, Guy said.

"It's really something that the county has not had to contemplate in the past."

What's next 

Things in the neighborhood are quiet now, McClay said.

In the weeks since the permit denial, McClay has gone back to work, picking up part-time hours in an oncologist’s office in Chester, Pennsylvania. 

"I needed the money," she said. 

After the hearing, McClay asked if she could finish the few remaining reservations, but a Planning and Zoning official told her by phone to cancel the bookings. If she continued, McClay said she was told she would be fined.  

She is waiting until she can appeal the board’s decision to Superior Court — a move Planning and Zoning told her she can make 60 days after the hearing in October.

“Ms. McClay is a widowed woman, trying to supplement her income with an occasional rent of her property,” said Joe Haney, a neighbor and supporter of McClay. 

Haney said he began advocating for McClay after one of the neighborhood meetings, where the committee pushed for bylaws prohibiting short-term rentals.

"I didn't want them to come into my house and tell me what I could do with my house and what I couldn't do," Haney said. “There are approximately 175 homes, approximately 1 acre per lot. They're not on top of each other."

Haney said he's waiting to see what will come from McClay's appeal in December.

For now, McClay is commuting to work, spending some nights at her son's home near the office while she prepares to sell her home in Garnett Valley and move to the cabin full time.

McClay said she is prepared to do what she can to continue renting via Airbnb. 

“I will fight it,” she said. “I’m absolutely going to fight it.” 

mmoore@delmarvanow.com