In Remand Hearing, ZBA Poised To Uphold Short-Term Rentals In Residential Districts
JohnCarl McGrady •
The Zoning Board of Appeals (ZBA) on Thursday reviewed a draft decision in favor of Peter and Linda Grape in the controversial remand hearing stemming from Cathy Ward’s lawsuit against the family over their use of their property on West Dover Street as a short-term rental (STR).
While a final vote was delayed until a special remote meeting scheduled for August 29th, the Board expressed support for the decision drafted by town attorney George Pucci, which would allow the Grape family to continue renting their property on a short-term basis, only requesting a handful of minor changes. A formal endorsement of the draft decision, which is expected at the hearing on August 29, would almost certainly prompt yet another appeal.
“You did a great job on this decision,” ZBA Chair Susan McCarthy said to Pucci. “When I read through it I felt very comfortable that it wasn't going to be a lot to change.”
Thursday’s hearing was the result of Massachusetts Land Court Judge Michael Vhay’s decision back back in March when he ruled against the ZBA and stated that the town's zoning bylaw does not allow short-term rentals as a principal use of a primary dwelling. Judge Vhay reversed the ZBA’s prior decision in the Ward case and remanded the matter back for further consideration - leaving hundreds of short-term rental properties in legal limbo.
“The Board is mindful and respectful of the need to protect the character of densely developed neighborhoods such as the neighborhood involved in the Ward case but is also mindful of the need to interpret the provisions of the Nantucket Zoning Bylaw consistent with what is considered customary use particular to Nantucket as a seasonal vacation community,” the draft decision reads in part. “The Board finds…that short-term rentals are customarily incidental to as-of-right principal residential uses…the Board also finds that the way the Grapes short-term rent the Main House at the property is consistent with this definition and that their short-term rentals qualify as customarily incidental to their as-of-right principal residential use."
Aside from a request to remove the term ‘short-term rental’ from the draft decision, which ZBA member Jim Mondani argued has become prejudicial in its use, discussion Thursday focused on a paragraph in the decision about the issue of how the ZBA ought to count vacant days when determining whether short-term rental use is accessory.
“The Board declines to follow a simple math equation on this issue,” the draft decision reads. “The Board can imagine many hypotheticals where the vacant day factor could be stretched beyond a reasonable interpretation, for instance, an investor-owned property rented for 155 days and vacant for 200 days, but such a scenario is not presented here.”
While ZBA members agreed that they were not following a math equation, they asked Pucci to remove any reference to a hypothetical scenario where they may have ruled differently.
“Anytime you're going to lay down a strict line in the sand of the number of days...there's another instance where it wouldn't make sense to do that, where it would be detrimental to the homeowner to do that, so maybe we don't need to get into all the detail,” McCarthy said. “For me, personally, [vacant days are] one factor in a bunch of factors.”
“The Board finds that the Grapes’ short-term rentals are subordinate to their as-of-right principal residential use,” the decision continues. “The factors relevant to this finding include: the Grapes’ strong ties to Nantucket and the property in question; their regular personal use of the property as a vacation home for as-of-right residential use, including occupancy of both the Main House and Garage House, and use and occupancy of the property year-round; that they sometimes occupy the Garage House at the same time the Main House is being short-term rented; that they did not acquire the property as an investment property to maximize the amount of money they earn from renting it, that they use the revenue from short-term rentals for upkeep, maintenance, and improvements to the property; and that they do treat periods of vacancy as periods when the property is available for their own personal use as they see fit.”
A similar draft decision in a remand hearing rooted in a lawsuit by Christopher Quick, protecting another family’s right to short-term rent their property, also received support from the board.
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.