Attorney General Upholds Nantucket's Vote To Legalize Short-Term Rentals, Rejecting Legal Challenge

The bylaw amendment legalizing short-term rentals (STRs) by-right across Nantucket has withstood a legal challenge and been upheld by the Attorney General.

“We approve Article 1 because, based on our standard of review, we cannot conclude that Article 1 conflicts with state law,” the Attorney General wrote in a letter to the town approving the bylaw.

Article One at last November’s Special Town Meeting, which codified STRs as an allowed use under zoning islandwide, passed by a vote of 1,045-421, clearing the two-thirds threshold needed for adoption and ending a divisive stalemate on the issue of STRs that had gripped Nantucket for five years.

But, a month after the vote, attorney Nina Pickering-Cook submitted a letter asking the Attorney General to disapprove the bylaw. Pickering-Cook argued Article One violated a state statute that prohibits a zoning bylaw that was previously defeated by voters from coming back to a Town Meeting for two years under certain circumstances. Pickering-Cook cited the recent defeats of other articles that also sought the full legalization of STRs on Nantucket.

“At Nantucket’s 2024 Annual Town Meeting, 2024 Special Town Meeting, and 2025 Annual Town Meeting, the Town voted on nearly identical articles,” Pickering-Cook wrote. “Each time, the amendments failed to pass. However, at this past November’s Special Town Meeting, the Town Meeting once again voted on an amendment that would legalize STRs in all but one zoning district on the island. This time, the amendment passed. Under the clear language of G.L. c. 40A § 5, this cannot stand.”

Cook referred to a Massachusetts statute that reads: “No proposed zoning ordinance or by-law which has been unfavorably acted upon by a city council or town meeting shall be considered by the city council or town meeting within two years after the date of such unfavorable action unless the adoption of such proposed ordinance or by-law is recommended in the final report of the planning board.”

But the Attorney General did not agree that Article One was disqualified under state law.

“We cannot, under our standard of review, conclude that the Planning Board’s recommendation in support of the three prior zoning articles and the Planning Board’s subsequent negative recommendation of Article 1 prior to the November 4, 2025 Special Town Meeting, results in a two-year bar against the November 4, 2025 Special Town Meeting considering Article 1,” the Attorney General’s office wrote.

Pickering-Cook has previously represented STR opponents, including the political action group ACK Now and Silver Street resident Cathy Ward, but it is not clear who was behind her petition to the Attorney General. Charter Boat captain and Planning Board candidate Brian Borgeson, who called the Special Town Meeting and sponsored Article One, said that he believed ACK Now was behind the petition, but Pickering-Cook declined to name her client.

While the Attorney General has limited power to disapprove local bylaws passed at Town Meeting, their response approving Article One notes that “every presumption” must be made in favor of the validity of the bylaws.

Town Counsel John Giorgio had previously submitted a full brief to the Select Board on the topic.

“In my opinion, the pending citizen warrant article under Article 1 does not constitute a repetitive zoning petition for two reasons,” Giorgio wrote. "The reasons for this opinion are (1) the Planning Board recommended favorable action on Article 66 of the May 2025 Annual Town Meeting; and (2) Article 1, although similar in many respects to Article 66, is of a different character than what was proposed in Article 66…By expressly allowing both long-term and short-term rentals in the definition of principal uses, Article 1, in my opinion, does not share the same fundamental or essential character as Article 66. Undoubtedly, if Article 1 is approved, the zoning bylaw will be amended in ways that were not contemplated by Town Meeting when Article 66 was considered.”

The Attorney General equivocated on both points. On the first point, Pickering-Cook argued that “the final report of the planning board” mentioned in state law must refer to their recommendation on the most recent article. Giorgio argued it could mean either article.

The Attorney General wrote that “case law does not definitively answer the question regarding which Planning Board recommendation controls.”

On the second point, Pickering-Cook argued that Article One was essentially identical to past articles, while Giorgio argued it was substantially different.

The Attorney General said that “based on our standard of review, it appears that Article 1…contain[s] enough differences that they do not constitute identical proposals. However, whether those differences are significant enough to render the proposals of the ‘same fundamental or essential character,’…is a question that requires a factual determination that is beyond our limited scope of review.”