Island Voters Reject Article 59, The Controversial Short-Term Rental Zoning Bylaw

Jason Graziadei •

Article 59 sponsor Steven Cohen. Photo by Kit Noble

Nantucket voters on Tuesday rejected a hotly contested zoning bylaw amendment to allow short-term rentals in all residential zoning districts across the island.

More than 1,300 people packed the Nantucket High School auditorium and gymnasium for the vote on Article 59 during the first night of the island's Annual Town Meeting. For the fourth straight year, the meeting was dominated by the debate over short-term rentals.

Article 59, a citizen petition proposed by attorney Steven Cohen, sought to codify short-term rentals as an allowed use in all residential island zoning districts. The warrant article was a bid to nullify the bombshell Massachusetts Land Court ruling handed down in March that determined Nantucket’s zoning code does not allow short-term rentals as a principal use of a dwelling.

But as they had done with similar zoning bylaw amendments over the past four years, voters defeated Article 59 by a wide margin. The final vote was 713 in favor, and 782 opposed. The warrant article required a two-thirds majority for passage.

"If we ban short-term rentals, we’re decimating our island economy," Cohen said on Town Meeting floor. "Prevent Nantucket from becoming a gated community for people who don’t need to rent out their homes." 

But voters remained unconvinced. Most of the people who spoke out on Tuesday voiced concerns about Cohen's proposal and the implications of allowing short-term rentals by right in residential zoning districts across the island. Opponents of Article 59 alleged that short-term rentals were harming year-round neighborhoods and exacerbating the island's affordable housing crisis.

"Article 59 strips away over 50 years of zoning protection," said island resident Charity Benz, who disclosed her role with the group Protect Nantucket Neighborhoods First, which organized around the issue but was criticized for not disclosing its full leadership. "It's opening the floodgates to short-term rental exploitation. Once a zoning bylaw is passed, it’s almost impossible to appeal...If article 59 passes, those realtors cruising slowly along the roads of your residential neighborhoods with investors and contractors, they’re planning to change your neighborhood forever." 

The vote means that the decision by Massachusetts Land Court Judge Michael Vhay that short-term rentals are not allowed as the principal use of a primary dwelling in residential zoning districts on Nantucket stands. While his ruling indicated that short-term rentals could be allowed as an accessory use of a dwelling - meaning a home must be used more as a primary residence than as a short-term rental - that definition must be clarified by the Nantucket Zoning Board of Appeals at an upcoming hearing.

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Some of those who spoke out on Article 59. Photos by Kit Noble

Many in the island's real estate community had urged voters to approve Article 59 to preserve property rights and what they described as Nantucket's history of having visitors stay in island homes, rather than hotels.

"This divisiveness our community has been subjected to needs to stop," said Penny Dey, of the broker and owner of Atlantic East Real Estate. "We have the power to do this by approving Article 59."

Island historian and author Nat Philbrick, however, said proponents of Article 59 were misusing Nantucket's history in the short-term rental debate.

"Yes Nantucketers have been renting their homes for decades and hundreds of years but the commercial short-term rental phenomenon is not something the old timers were dealing with back in the day," Philbrick said. "This is something that is a very new phenomenon. Just the last 10 years. It’s radically changed my neighborhood and it’s changing the island...Year-round Nantucketers have always rented their homes but this is different. Online platforms like Airbnb and the others have created an economic hothouse that is, to my mind, not sustainable. Jobs are everywhere but no one can find a place to live."

The vote throws Nantucket’s short-term rental market into limbo and turns attention to the upcoming Zoning Board of Appeals meeting in June. Michael Vhay, the Land Court judge who issued the Nantucket short-term rental ruling, reversed the Zoning Board's prior decision in the Ward case, remanded the matter back to the ZBA for further consideration, and directed the board to determine whether the short-term rentals at the property in question on West Dover Street qualified as a primary or accessory use of their property.

How the ZBA defines accessory use could bring some clarity to the issue. The Select Board is also planning to call a Special Town Meeting for Sept. 17 when short-term rentals will once again be on table, Select Board chair Dawn Hill Holdgate said. 

While island real estate offices and some attorneys, including Cohen, have stated that a defeat of Article 59 means 2024 short-term rental leases would be in jeopardy this summer, town counsel John Giorgio told the meeting that there is “nothing in Judge Vhay’s decision that would make anyone need to cancel an existing rental contract…I don’t see why anyone would need to cancel their contracts for this summer." Attorney Arthur Reade said they would still be open to legal challenges.

In the aftermath of the vote, there was some confusion as people in the overflow area in the high school gymnasium stated there was uncertainty as to what they were voting on (the main motion or an amendment, or the modified language inserted as a technical amendment). Moderator Sarah Alger said it was too late, based on the town's bylaws, to entertain a motion to reconsider. She cited a portion of the town code which reads:

"No final vote shall be reconsidered unless the person moving the same shall have made a declaration of his intention to do so at the time of its adoption and shall have been one of the majority acting thereon; and no article of any warrant shall be again taken into consideration after it has been disposed of unless ordered by a vote of two-thirds (2/3) of the voters present."

Some of the confusion appeared to come after Lee Saperstein's suggestion that the article substitute the term "legacy" in place of the term "grandfather" which he said was the result of "an awful, egregious voting suppression motion during the period of Jim Crow."

Following Saperstein's suggestion, moderator Sarah Alger moved directly to a vote on the main motion. But some individuals voting in the gymnasium stated they were confused as to what they were voting on - Saperstein's suggestion regarding the terms used in the language of the article, or on the main motion itself.

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