After Land Court Ruling, Zoning Board Begins Remand Hearing In Short-Term Rental Case

The remand hearing stemming from Cathy Ward’s short-term rental lawsuit against her neighbors and the Zoning Board of Appeals began Monday, with the ZBA hearing arguments from both parties’ attorneys and members of the general public. Monday’s hearing was the result of a Massachusetts Land Court judge Michael Vhay’s decision in March that the town's zoning bylaw does not allow short-term rentals as a principal use of a primary dwelling. He reversed the Zoning Board's prior decision in the case, and remanded the matter back for further consideration.

Ward alleges her neighbors using their home primarily as a short-term rental (STR) is not allowed under the island’s zoning bylaw. No decision in the case was reached Monday, with ZBA chair Susan McCarthy adjourning the meeting after two and a half hours. The hearing will be continued on June 24th at 1:00 p.m., when the ZBA is scheduled to hear another similar case against a neighborhood STR.

“[This will] give us time to process what we heard,” ZBA chair Susan McCarthy said. She added that continuing the hearing will allow the ZBA to better understand the community’s perspective on the issue. “I would be open to additional public comment,” she said.

The ZBA initially ruled against Ward, holding that short-term rentals were permitted as a principal use in a residential district, but was overruled by the Massachusetts Land Court judge last March. Judge Vhay held that the Town’s zoning bylaws do not allow STRs as the principal use in a residential zone, but may permit STRs as an accessory use. The case was remanded to the ZBA to determine whether the Grapes’ use of the property as an STR qualified as accessory.

“The Grapes used the house more often for rentals than for personal stays,” Ward’s attorney, Nina Pickering-Cook, said. “The rental use…was nearly double the residential use.”

“Who’s going to go around to determine who lived in every one of the 1,700 (STRs) and how many days?” Robert McLaughlin, the Grapes’ attorney, countered. “It’s an unworkable solution.”

An accessory use is defined in Nantucket’s zoning bylaws as subordinate and customarily incidental to some primary use. Much of the debate Monday centered on this definition, and particularly whether the days a vacation home is left vacant count towards its primary use for the purpose of determining whether the use as an short-term rental is subordinate and thus accessory.

“They did not count vacant days on their tax returns. They cannot ignore vacant days on their tax returns and then ask the town to count vacant days for zoning purposes,” Cook said.

Cook also pointed out that counting vacant days toward residential use would class all STRs, including those that are only used as STRs and never occupied by the homeowners, as accessory and thus protected by the town’s zoning bylaw.

“You could have an exclusive STR that’s rented for three months a [year] and vacant for nine months, and under the Grapes’ argument, that would still be an accessory use,” she said.

McLaughlin countered that vacant days should be counted towards the primary use because case law suggests that all days a property is “used or to be used” for its primary use should be considered.

“It was there to be used,” he emphasized. “The 275 days [a year] the property was vacant was to be used as the primary use, which is the Grapes’ vacation home.”

Pickering-Cook and one member of the Zoning Board pointed out that the home was listed as available to rent when vacant.

“It seems to me that if there’s no calendar, those vacant days are for the owner, or for the short-term renter,” Zoning Board member Joseph Marcklinger said. “It doesn’t say on a calendar: reserved for owners.”

“They’re not actively trying to rent it,” McLaughlin replied. “It’s their decision but not in writing.” He also noted that even if the home was listed as available, the Grapes could always choose not to rent it if someone attempted to reserve it.

The ZBA decision in the remanded case could impact other local short-term rentals by providing precedent for determining the definition of an accessory use, potentially impacting the island’s economy—though attorneys for both sides and for the town emphasized that the ZBA must rule on the specifics of the Ward case and not issue a general rule for the island at large. There are hundreds of STRs on the island, many not primarily occupied by the homeowners, all of which could be impacted by the ZBA’s ruling.

The town opted not to appeal the Land Court’s decision because the Select Board believed the issue was best addressed through legislation. Voters at Town Meeting, however, rejected island attorney Steve Cohen’s proposed zoning bylaw amendment that would have protected STRs as an allowed use in all residential zoning districts. That means any legislation to protect or further restrict STRs can’t be considered until the Special Town Meeting this fall at the earliest. Until an amendment to the zoning bylaw is passed, the remanded case carries enormous weight, as the ZBA’s decision could functionally act as a temporary governing rule for STRs on the island, even though the ZBA is not a legislative body, pending other lawsuits already waiting before the ZBA.

Ward initially brought the case against the Grapes alleging that the “constant” churn of renters and the associated noise and light pollution forced her to significantly change the way she used her home and disrupted her life. McLaughlin fell back on this several times during the hearing.

“We’re here because Ward had some complaints about light and air. Well, she doesn’t have any complaints about light and air when the house is vacant,” he said. “It’s quiet as a mouse.”

The case has been closely watched by town officials, the island’s real estate community, short-term rental operators, and ACK Now, the political action group that has spent the last three years attempting to place restrictions on short-term rentals on Nantucket. Ward, who serves on ACK Now’s advisory council, has had her legal effort supported by the political action group, and her attorney - Pickering Cook - also represents ACK Now.

The hearing also spiraled into a broad debate about the relative importance, history, and impacts of STRs on the island. Several of the sponsors of current and past proposed STR bylaw amendments, including attorney Steve Cohen and activist Charity Benz, spoke on the issue. The Select Board is currently working with sponsors of STR articles for the fall’s special town meeting to find common ground and draft a unified proposal to put before voters.