Cathy Ward, ACK Now Appeal Zoning Board Ruling On Short-Term Rental To State Land Court

Silver Street resident Cathy Ward and the political action group ACK Now have filed an appeal of the Zoning Board's ruling earlier this month that the use a property on West Dover Street as a vacation rental in a residential zoning district was permissible under the island’s zoning code.

The closely watched remand hearing ended earlier this month when the Zoning Board of Appeals (ZBA) voted 4-1 in favor of the property owners - Peter and Linda Grape - while stating that their use of the home as a short-term rental was a valid accessory use. How they came to that determination - as well as the finding that the Grapes' rentals were subordinate to their residential use of the property - are at the center of Ward's appeal to the Massachusetts Land Court.

It marks the second time she has appealed the ZBA's ruling in the case. Earlier this year Land Court judge Michael Vhay ruled in Ward's favor, deciding that the town's zoning bylaw does not allow short-term rentals as a principal use of a primary dwelling, but that they could be permissible as an accessory use. Vhay remanded the case back to the ZBA, which mulled its decision over the summer before issuing its ruling earlier this month.

"As feared and anticipated by Ward in the original appeal, this remand only gave the Board an opportunity to double-down on its past mistakes," wrote Ward's attorney Nina Pickering-Cook. "More specifically, the Board found the Grapes' rentals to be an 'accessory use' despite the fact that - as found by this Court after trial - the main house on the property is used as a short-term rental between 90 and 111 days per year, and for residential use only 40 to 55 days per year - not even half as much. Given these facts, there was no rational basis for the board to decide that the Grapes' STR use was 'subordinate' or 'customarily incidental' to a primare use in order to qualify under Nantucket Zoning Bylaw as an 'accessory use'."

Read the full appeal by clicking here. 

The town’s zoning bylaw defines an accessory use as “Separate structures, buildings or uses which are subordinate and customarily incidental to a principal structure, building or use located on the same lot.”

The ZBA had gone back and forth over the summer on how to determine that the Grapes’ short-term rentals are subordinate to their residential use of the property, struggling over how to calculate “vacant days” when the home is unoccupied.

While Judge Vhay had found that the Grapes had rented their main house on West Dover Street more often than they had used it for personal stays, the ZBA in its decision stated that it “declines to follow a simple mathematical equation on this issue…Under the circumstances presented, the Board finds the number of vacant days available for use and occupancy by the owner to be ‘a’ relevant factor on subordinate use, although not the determinative factor. There is no numerical equation or restriction in the Nantucket Zoning Bylaw, nor other definitions to guide the Board on the issue of subordinate use. The Board therefore interprets the Bylaw in light of what is considered a customary use particular to Nantucket and bases this decision on the facts particular to the case and the totality of circumstances.”

In the latest appeal, Ward is asking the Land Court to "direct the town to enforce the zoning bylaw such that any dwelling unit short-term rented for more time than used for residential use cannot be deemed a permitted accessory use, but instead is a principal use prohibited in residential zones..."

The appeal comes less than a week after island voters rejected - for the fifth time - a zoning bylaw amendment that would have allowed short-term rentals in all residential districts and rendered moot Ward's legal challenge and the others that are pending.

“Of course I’m disappointed in the response of the Zoning Board and how they have ignored the plain language of the bylaws and are forcing the litigation to continue,” Ward told the Current earlier this month. “So yes, unfortunately, I will (appeal the decision). It makes no sense to me that you can count a vacant day as occupied when you own more than two or three homes. How you can occupy all three homes at one time and count it as occupied is beyond my comprehension.”

The case continues to be 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 group, and her attorney, Nina Pickering Cook, also represents ACK Now.

Peter McCausland, the founder of ACK Now, said last week that the group will once again be supporting the appeal of the ZBA’s latest decision.

“We have secured the funds,” McCausland said. “We are confident that the Land Court will overrule the ZBA...These ZBA members are ignoring Judge Vhay and Massachusetts law and don’t care because the town is paying the bills.”