Are Short-Term Rentals Illegal On Nantucket?

Are short-term vacation rentals illegal on Nantucket? On its face, the question seems ridiculous. After all, there are thousands of active short-term rentals on the island, and the town reaps millions in tax revenue from them every year.

And yet, many Nantucket residents received a letter in the mail this week proclaiming definitively that short-term rentals are illegal on Nantucket. The letter was sent to advocate in favor of a proposal to regulate and restrict short-term rentals - Article 60 - that will be considered at the upcoming Annual Town Meeting, and was signed by a number of well-known and influential island residents.

Short-term rentals “are not currently legal under Nantucket’s zoning bylaw,” according to the letter signed by the following individuals: longtime island physician Dr. Tim Lepore; Toscana Corporation owner Carl Jelleme; builder Ron Winters who owns the company Thirty Acre Wood; former Nantucket Looms owner Liz Winship; former Select Board member Rick Atherton; firefighter Joe Townsend; veterinarian Jennifer Fraker; and nurse practitioner Meredith Lepore, who also happens to be a member of the town’s Short-Term Rental Work Group.

"The town's lack of action to address short-term rentals leaves homeowners unprotected and commercial interests in residential neighborhoods unrestricted," they wrote.

But Andrew Vorce, the director of Nantucket’s Planning and Land Use Services, said that the assertion that short-term vacation rentals are illegal on Nantucket “is completely misleading and completely false. That’s their hope and their agenda, but that has not been decided and to say that now is false.”

The rhetoric is an escalation of what critics of short-term rentals have been arguing for several years now: the island’s zoning code does not specifically permit short-term rentals, and thus they are a prohibited commercial use in residential zoning districts. That has been the basis for a handful of challenges brought by island residents against their neighbors who operate short-term rentals (all of which have been supported or funded by the political action group ACK Now).

But in each of those cases, Nantucket’s building commissioner Paul Murphy has declined to take action after interpreting the zoning bylaw as allowing short-term rentals, a decision which has been upheld by the Zoning Board of Appeals.

Three of those Nantucket cases have now been appealed to the Massachusetts Land Court, where they remain pending.

“Nobody interprets the zoning bylaw except the building commissioner, and he’s interpreted the zoning bylaw and made a decision,” Vorce said. “It can be appealed to the ZBA, and it has, and they've upheld the building commissioner. That’s where it ends locally but there are those three cases moving forward at Land Court.”

Jelleme, who signed the letter asserting short-term rentals are illegal and currently serves as ACK Now’s executive chairman, did not return a message seeking comment. But Julia Lindner, the group’s executive director, explained the group’s position.

“Nantucket’s zoning bylaw does not mention short-term rentals anywhere in its text while clearly stating that any use that is not explicitly listed in the zoning code is prohibited,” Lindner said. “This is the fundamental basis for saying that short-term rentals are not legal in residential districts under current zoning.

“The Building Commissioner and ZBA are interpreting the local bylaw, but they can be wrong,” Lindner added. “The many acknowledgements by the Town and Town Counsel that amending current zoning laws to address short-term rentals in residential zones is important and continues to be an issue is a good indication of the actual situation.”

Atherton, one of the signatories of the letter, struck a similar chord.

“My understanding is that the Nantucket zoning dode essentially says if a use is not specifically authorized, it is not permitted,” Atherton said. “As in most such matters there are interpretations made, and one of those is what is an accessory use.”

Those arguments, Vorce said, are the basis for the legal claims being made before the Massachusetts Land Court, but certainly don’t constitute settled law on Nantucket, and shouldn’t lead anyone to conclude that short-term rentals are illegal on the island.

“It is an opinion and an agenda,” Vorce said. “Random people do not have authority to interpret the zoning bylaw. The Building Inspector does and has and his opinion was supported by the ZBA on appeal in accordance with state law. There are three cases challenging these outcomes. Nantucket’s zoning bylaw basically says nothing about leasing at all. That’s a transaction - not a use. Single-family homes and other dwellings are allowed, some with restrictions for occupancy. Their use by occupants, whether they are owners, visitors, lessees etc. is not segregated in the bylaw. Leasing of dwellings is a subset of residential property rights, well established by custom and practice. The use of property remains as a residence. Under that flawed logic of the claim, rental of dwellings of any term wouldn’t be allowed since it isn’t stated in the bylaw.”

Nevertheless, the supporters of Article 60 continue to suggest in their online and printed communications that short-term rentals are not legal, and that the proposed zoning bylaw "would protect homeowners by legalizing STRs in residential neighborhoods under one simple condition: that the STR use is less than the residential use of the home."

Ron Winters, a builder of luxury homes who signed the letter, added: "Bottom line is that the Town, including the Planning Director and Town Counsel, have admitted on several occasions that current zoning laws don't clearly indicate that the STR use in residential districts is allowed."

Those alleging that short-term rentals on Nantucket are not legal have also pointed to the 2021 Massachusetts Supreme Judicial Court (SJC) decision involving short-term rentals known as the Lynnfield case, or the Styller case.

The case reached the SJC after Alexander Styller, the owner of a home in Lynnfield, Mass., appealed a decision by the local building inspector that prohibited him from offering short term rentals of his home based on the fact it was located in a residential zoning district. After losing at the local Zoning Board and the Land Court, Styller appealed to the SJC, which also ruled to uphold the building commissioner’s decision. The decision stated: “short-term rental use of a one family home is inconsistent with the zoning purpose of the single-residence zoning district in which it is situated, i.e., to preserve the residential character of the neighborhood.”

The ruling has led many towns in Massachusetts - including Nantucket - to examine their zoning bylaws closely with respect to short-term rentals.

“The Supreme Judicial Court ruled (in the Styller decision) that short-term rentals are a commercial use not compatible with residential zoning,” Lindner said. “In other words, the highest court in Massachusetts ruled that STRs are not a residential use…there is no doubt that a decision by the highest court of Massachusetts applies to all municipalities in the Commonwealth.”

Vorce, however, has routinely stated that the Styller case does not apply directly to Nantucket, pointing to a footnote in the SJC decision in which the justices stated “We hasten to add, however, that a different result may obtain in other circumstances, depending upon, for example, the specifics of the zoning bylaw of the city or town, including what types of additional uses are permitted (if any), as well as what is considered a customary accessory use in a particular community."

“Each community has separate zoning bylaws and customs, and that footnote said there could be a different outcome,” Vorce said. “Lynnfield, Mass .is a bedroom suburban community. It’s not a summer, seasonal resort community with a long history of rentals. The action was brought by town officials to deal with a specific, single property situation. It wasn’t done for town wide things.”

The debate over the legality of short-term rentals was also a topic of discussion Tuesday evening during yet another marathon session of the Short-Term Rental Work Group.

“I don’t think anyone on this work group is in a position to say whether it’s legal or not,” said David Iverson, a member of the work group and the Planning Board. “It’s clearly an accepted use, and until a judge says its illegal, it’s an accepted use. To contemplate whether or not it is legal in our zoning is beyond what any of us should be saying or doing.”