ZBA Decision On Short-Term Rentals In Residential Neighborhoods Postponed Again

Nantucket’s Zoning Board of Appeals (ZBA) continues to struggle with the details of its decision in the high-profile challenge of a short-term rental in a residential neighborhood, a case in which its previous ruling was rejected by a state judge and sent back to the board for further deliberations.

For nearly the entire summer, the ZBA has been considering a draft decision in favor of Peter and Linda Grape in the controversial remand hearing stemming from their neighbor Cathy Ward’s lawsuit against the family over the use of the Grape’s property on West Dover Street as a short-term rental (STR). On Thursday, the ZBA once again delayed a final vote and asked town counsel George Pucci to make additional revisions to the language of the draft decision.

The ZBA is still expected to sign off on that decision and declare the Grapes’ use of their property as a short-term rental to be an acceptable accessory use and therefore permissible, possibly as soon as next week’s meeting on September 5th. An appeal of that decision is almost inevitable.

But first, the members of the ZBA need to finalize the language of their rationale. The remaining difficulty seems to be in spelling out their reasoning in a way that will pass muster with Massachusetts Land Court judge Michael Vhay, who rejected the ZBA’s first decision in the case earlier this year.

Vhay ruled in March 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 allowed as an accessory use. The town’s zoning bylaw defines an accessory uses 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 has gone back and forth 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 the initial draft decision says the ZBA “declines to follow a simple math equation on this issue,” some members think a math equation isn’t necessarily a bad idea.

Alternate Jim Mondani suggested following the logic used by the Grapes and their attorney, which would rule the short-term rental as an accessory use if the total number of days a property is used as an STR is less than the number of days it is used as a residence by the owner combined with the number of days it is vacant.

“If we reference the specific numbers that are in the case, the days, I think that demonstrates that it's subordinate,” Mondani said. “We've got to try to…give a tighter rationale for why we think that [the use accessory] or else we're open to a challenge.”

Other ZBA members have balked at the idea of using specific examples with numbers, which might tie their hands in future cases. But if they don’t commit to saying that it is as simple as tallying vacant days and owner-occupied days and setting them against the days the property is used as an STR, they will need another explanation for their ruling.

“I want to make sure [Massachusetts Land Court Judge Michael] Vhay is satisfied that we did the analysis,” ZBA Chair Susan McCarthy said. “I don't want to have some kind of milquetoast decision.”

A similar draft decision in a remand hearing rooted in a lawsuit over a short-term rental on Delaney Road filed by Christopher Quick would similarly protect another family’s right to short-term rent their property. That case continues to follow the same path as the Ward case, with a final decision likely to be endorsed at the same meeting.

The ZBA’s latest meeting came on the heels of allegations about their impartiality in the case lodged by Mill Street resident Anne Dewez, who claimed earlier this month that ZBA members work for and run companies that profit off of STRs. The appointed members of the ZBA have remained silent on the issue of potential conflicts of interest, declining to comment and directing the Current to the Town’s public relations department—even though the Town’s controversial gag order that has silenced many municipal employees in the last year does not apply to elected or appointed officials.

The ZBA decisions on the remanded cases could impact other short-term rentals on Nantucket by setting the precedent for STRs in residential zoning districts. There are hundreds, if not more than 1,000, active short-term rental properties on the island, many not primarily occupied by the homeowners, all of which could be impacted by the ZBA’s ruling.

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 STRs 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, Nina Pickering Cook, also represents ACK•Now.

Peter McCausland, an island summer resident and the founder of ACK Now, said he believes Cathy Ward will file an appeal of the ZBA's expected decision in favor of the Grapes, and that ACK Now "will continue to support her to the extent we have the funds."

McCausland emphasized that he believes that Judge Vhay will not look favorably on the ZBA's decision assuming it ends up close to the draft now under review.

"I believe Judge Vhay will think that the opinion is too cute by three and rule against the ZBA again," McCausland told the Current. "Zoning is about how a property is used, not about any of the irrelevant things the chair tried to add to the opinion in order to avoid the math. The findings of fact from the trial, which are binding on the ZBA, show that the Grapes short-term rent around 68 percent of the time the dwelling is used. Counting vacant days is a real stretch, and they know it. That is why the ZBA tried to identify other factors supporting accessory use; like the Grapes think about the property when they aren’t there; the Grapes have ties to Nantucket; and, the Grapes occasionally - how often not specified - stay in another dwelling on the same lot. But none of those factors have anything to do with zoning. Interestingly, the chair totally ignored the same sort of facts relative to Cathy Ward. She bought her house in 1993 and has lived on Nantucket year-round for 15 years. She is active in the community and has served on the Cottage Hospital Board. Nantucket is Cathy’s home and this is her neighborhood. She never would have purchased her home knowing there was a mini-hotel next door. Certain members of town boards and committees have attempted to publicly shame Cathy by accusing her of 'litigation against neighbors.' I think the voters are outraged by their tactics and realize a mini-hotel could be next door to them soon and that these mini-hotels will eventually negatively impact property values."

ZBA alternate Lisa Botticelli, who also serves as a member of ACK•Now’s advisory council, has not returned to a ZBA meeting, even to address non-STR cases, since a tense exchange with ZBA member Elisa Allen last month, in which Allen suggested Botticelli was biased because of her role with ACK•Now. Allen, who runs an architectural, construction, design, and furnishings consulting company, is the subject of a formal ethics complaint filed by local activist Anne Dewez. Allen has declined to comment for the Current.