New Subcommittee Seeks Consensus, Consolidation Of Competing Short-Term Rental Proposals
JohnCarl McGrady •
The Select Board’s new subcommittee on short-term rentals (STRs) met for the first time Monday in an effort to unify a series of proposed bylaw amendments set to go before voters at the Special Town Meeting in September.
After years of deadlock at Town Meeting, including the recent failure of the proposal from the Short-Term Rental Work Group and island attorney Steve Cohen’s unsuccessful bid to protect STRs by right across the island this spring, the Select Board is seeking to prevent yet another episode of inaction in September by uniting the authors of three different warrant articles behind a single proposal.
The first of the three articles was proposed by a coalition of advocates including former STRWG member Jim Sulzer, Select Board member Matt Fee, former Nantucket Housing Director Tucker Holland, former STRWG consultant Matt Haffenreffer, and article sponsor Grant Sanders.
“From the very beginning, folks pulled me in to build a compromise article,” Sanders said. “Something that was simple, something that was understandable.”
Sanders believes his group has already done a lot of the background work the subcommittee needs to accomplish to achieve compromise.
The second article was proposed by a prominent critic of past articles, Charity Benz, with Matthew Peel.
“The primary purpose of our article is to protect residential neighborhoods,” Benz said. “We felt that the article we proposed encourages long-term rentals which is something that we have lost and it’s damaging the community.”
The final article was sponsored by Cohen, who said that his goal was “number one, ending the divisiveness that we have, ending the uncertainty, ending the neighbor-on-neighbor lawsuits.”
Cohen spearheaded an effort to gain consensus on allowing STRs in some form - whether as a primary or accessory use - in both residential-only and mixed-use districts on Monday, successfully garnering the support of the large majority of individuals around the table.
The Select Board is represented on the subcommittee by Tom Dixon and Malcolm MacNab, who is also on the Board of Health. Planning Board chair David Iverson and planning director Leslie Snell were also in attendance, among others.
There are many differences between the three proposals, but Town staff is optimistic about bringing them together.
“I see definite avenues to getting to a single proposal, but it’s going to take compromise,” Giorgio said.
Giorgio worked with the sponsors of the articles to use the same structure, making it easy to note the differences between the proposals. Giorgio drew up a chart comparing the three articles, highlighting how the sponsors differ on issues such as the number of STRs allowed per person, the number of days an STR can be rented, and the maximum number of contracts allowed per season. A truncated version of the chart, shortened and revised for legibility, is available below.
One thing that the three articles all share - though Cohen’s new proposal is less extreme in this regard than the others - is their reliance on the zoning bylaw. In the past, proposed STR regulations have relied primarily on general bylaw amendments for regulations, which can be changed with a simple majority at Town Meeting, causing some to worry that the regulations could be repealed while zoning bylaws allowing STRs by right would remain in effect. The new proposals would circumvent that concern.
“One of the concerns I’ve heard repeatedly is well, you can amend the general bylaw with a simple majority,” Giorgio said. “So the way we’ve set this up, the majority of the substantive regulations will be in the zoning bylaw.”
Perhaps the largest obstacle facing the subcommittee is the lack of time it has to come to a consensus. One way or another, the subcommittee will finish its work after four more meetings, on June 13th.
“We have a very tight time frame,” Dixon said.
Giorgio also emphasized that no one should rely on the decision by the Zoning Board of Appeals in the pending remand of Cathy Ward’s lawsuit against a neighbor’s STR.
“If the ZBA says…well, the Grape property, that’s an incidental use, I bet your bottom dollar there will be an appeal of that,” he said. “[This] demands a legislative answer.”
Also before the subcommittee is a general bylaw submitted by Pamela Perun specifically concerned with defining corporate ownership. The bylaw does not significantly overlap with the other STR articles.
Zoning bylaw comparison:
Grant Sanders | Charity Benz | Steven Cohen | Town Counsel Comments | |
Adds definitions for Short-Term Rental (STR) and Accessory Short-Term Rental (ASTR) | Yes | Yes | Yes | |
Permits ASTRs by right | Yes | Must be accessory to a Principal Use | Yes | Town Counsel (and the Planning Director) recommends that the Use Chart insert a “Y” in all districts except the CI. This is a much cleaner approach and should protect against future legal challenges. |
Adds footnote: Subject to the Requirements of § 139-38 | Yes | Yes | Yes | Any future changes to the substantive zoning regulations will require a two-thirds vote at town meeting. |
Adds a new section to Zoning Bylaw: § 139-38 ASTR | Yes | Yes | Yes | Each of the three zoning proposals have different substantive regulations as explained below. |
Applicability of ASTR Regulations | Allowed in all districts except the Commercial Industrial (CI) District | Only permitted in Residential Districts | Allowed in all districts except the Commercial Industrial (CI) District | The Benz article should be clarified to state in Section 2: “except CI” – to be consistent with other two proposals. |
Total number of rental days per year to qualify as an ASTR | Owner must reside on the lot, or another lot in Nantucket, at least 30 days (can be non-consecutive) per calendar year | Lot must be Residential Use (occupied by owner or tenant) at least 32 days per calendar year. The limit on ASTR is 28 days a year. For each additional 28 days of Residential Use, another 7 days of ASTR use will be permitted. | Less than half of the calendar year. | Requiring the “owner” to reside on the lot or on another lot they own on the island for 30 days will likely be subject to a dormant commerce clause challenge, where similar requirements were found to violate the constitution in other circuits. Town Counsel recommends saying: “The owner or a long-term tenant or operator must occupy the Dwelling Unit or another Dwelling Unit on Nantucket.” Benz allows residential use to be owner- OR tenant-occupied, which is more likely to pass muster under a dormant commerce clause challenge |
Limit on number of ASTRs per operator. | One. But if a person operates more than one on the effective date of this bylaw, they may continue to do so for a period of 5 years. | No limit | No limit | Benz in theory allows an operator to have multiple ASTRs given that long-term tenants could constitute “residential uses” of several STRs. |
Requires valid certificate of registration from BOH under c. 123 | Yes | Adds new registration requirement | Yes, commencing May 1, 2025 | |
Limit on number of Dwelling Units that can be ASTRs on a single lot | Two Dwelling Units per lot if rented to the same person | One Dwelling Unit per lot | Addressed in general bylaw: two Dwelling Units may be used as STRs if a lot has more than two units | |
Limit on the number of rental contracts | Maximum of six during July and August. For Dwelling Units bought or constructed after effective date of bylaw, maximum of 4 during July and August. No limit on number outside of July and August | Maximum of eight per year. | Addressed in general bylaw: maximum of nine during July and August. | |
Limitations on Length of Stay | No. | Minimum stay of 4 days in calendar year, except in July and August when min. stay is 7 days | No. | |
Other | Exemption: when lot is owner-occupied, there is no limit on ASTR except for minimum stay provision | Exceptions for “owners” who reside on lot at same time may be subject to a dormant commerce clause challenge by favoring in-state interests over out-of-state interests, where out-of-state owners may be precluded from entering the STR market on equal terms, given that similar requirements have been found to violate the constitution in other circuits. Town Counsel recommends that the exemption apply to “owners, long-term renters, or operators.” |
General bylaw comparison. Note that Matthew Peel’s general bylaw is affiliated with Charity Benz’s zoning bylaw, and Grant Sanders did not submit a general bylaw. Perun’s proposal has been omitted as it is unrelated to the other articles.
Matthew Peel | Steven Cohen | Town Counsel Comments | |
Preference for primary residences | Limits on rental contracts do not apply if lot is owner’s primary residence. | This provision may be subject to a dormant commerce clause challenge by favoring in-state interests over out-of-state interests.. | |
STR Fee | Registration fee for dwelling units that are not the primary residence of the owner is increased to $350. | Under the so-called Emerson College Test, the Massachusetts Supreme Judicial Court requires that when setting a fee, a municipality must be able to justify it as reasonable based on the actual costs incurred to administer and enforce the licensing scheme, and the fee may not be used to raise revenue. How would the Town justify the larger fee for nonresidents for obtaining the exact same Town service? Additionally, by creating a barrier to enter the market by charging a higher fee to non-residents, this bylaw could be susceptible to a legal challenge under the dormant Commerce Clause. | |
Changes to Registration Process | Requires operators to provide floor plan showing STR layout at time of registration. | Requires process to begin on May 1, 2025, and requires separate certifications for different dwellings on same lot. Requires contact information for owner, intermediary, operator and two other persons (as opposed to just the operator) Requires applicant to certify that there are no outstanding code violations, that STR is compliant with outdoor lighting bylaw for all dwellings constructed after Jan 1, 2025, certifies that any pool or spa is compliance with light standards beginning in 2027. | The STR regulations already require the submission of a description of premises, including bedrooms, bathrooms and parking. Certification of compliance with all local laws and regulations applicable to residential dwellings is already addressed in the STR regulations. |
Changes to substantive STR requirements | Addressed in zoning bylaw. | In July and August, limits to nine contracts or changes in renters. Each certificate shall provide for the maximum number of occupants in each dwelling. No renter may occupy unit until their identity has been verified and they have acknowledged regulations Prohibits STRs in tertiary dwellings and inclusionary housing | The number of occupants per bedroom (plus two additional people in unit) is already addressed in the STR regulations promulgated by BOH. |
Further amendments to STR regulations required | Directs regulations to prohibit on-street parking, limit vehicles, and have BOH develop an online complaint form. | Directs BOH to set deadline for annual application requirements | |
Other | Authorizes leases and subleases that are entered into with a valid certificate of registration to be honored by a new operator of an STR during pendency of new operator’s application for that property. No person may hold more than two certificates of registration, with an exemption for STRs in effect since Jan 1, 2000 All advertisements for STRs shall include the certificate of registration. | ||
Parking | Requires regulations to prohibit any on-street parking for STRs and requires BOH to develop an online complaint form. |