Select Board Rejects Mediation In Short-Term Rental Stalemate, Considers Special Town Meeting In November

A lengthy, tense Select Board discussion on potential future efforts to codify regulations around short-term rentals ended with no consensus Wednesday after Select Board members backed away from a mediation option proposed by Town Counsels John Giorgio and George Pucci.

“I don't see a path forward,” Select Board member Brooke Mohr said. “I think we just keep doing the same thing until we circle the drain and something happens. I'm at a loss. We've suggested an alternative. It's out of the box, it's different. I believe there is a chance it would work, but there doesn't seem to be trust in any of the processes. Public, private, anything, at this point.”

The Select Board also voted for November 5th as a tentative date for a fall Special Town Meeting, although there is a chance the date may not be used.

According to multiple Select Board members, several short-term rental (STR) stakeholder groups have created citizen petitions that already have enough signatures to call a special town meeting, should they wish to do so, or have nearly reached the requisite threshold. The November 5th date acts as a hedge, and if the petitioners are willing to work with the Select Board, it will grant the town significantly more planning time than it would have if the petitioners had called a special town meeting on their own.

“I would suggest that we tentatively set the date, and that we develop a timeline, and then if these articles come forward, we will know if we need to have it,” Select Board chair Dawn Hill Holdgate said.

Under Massachusetts law, a Special Town Meeting may be called by 200 or more citizens, regardless of any objections from the Select Board. If they choose to do so, the meeting must be held within 45 days, despite the often enormously challenging logistics.

“I’d rather have it on our own timeline rather than one imposed upon us,” Mohr said. “That’s why I feel like it is really important that we do this.”

In this case, one way to stave off a special town meeting could be mediation, if the petitioners are willing to wait for the results. Mediation, as described by Town Counsel, is a closed-door process in which a trained mediator collaborates with stakeholders to find a compromise that all parties are willing to agree to. While using mediation for an issue like STRs is unorthodox, it is often used in divorce proceedings, contract negotiations, and other scenarios where the opposing parties have differences at least as intractable and contentious as those plaguing the STR debate on Nantucket.

At least for now, however, mediation isn’t happening. Although several Select Board members had initially expressed support for mediation, limited backing from community leaders who have been the most vocal about STRs, and the presence of at least one existing citizen's effort to bring key stakeholders together, led the board not to vote to pursue mediation further at the meeting on Wednesday.

“I think that the idea of mediation is put out there,” Mohr said. “I think it is perhaps something we should offer should the conversations in the community hit a point where they say, ‘whoa, we’re stuck, we could use some help,’ but [the Select Board should] not start anything.”

Several island residents deeply involved in the island's ongoing STR battle, with widely varying perspectives on how STRs should be regulated, expressed opposition to mediation efforts on Wednesday, citing concerns including difficulty in having all stakeholders represented and the perception that similar attempts have already failed.

“I think that the concept of mediation in this situation, with all due respect, is flawed. I really think that in a mediation situation, you necessarily have to have all stakeholders participating,” said island attorney Arthur Reade, who is working on a compromise STR article. “Unfortunately, the stakeholders are however many people show up at Town Meeting that night, and, obviously, we're not going to have all of them participate in a mediation session, and therefore I don't see how it's going to accomplish anything.”

In 2022, the Select Board formed the STR Work Group, which worked with a professional facilitator to create a set of compromise bylaws that received the necessary support of at least seven of the group’s nine members to progress to town meeting. But despite the broad support the bylaws received before Town Meeting, they failed to muster two-thirds of the votes on the floor, and did not become law.

Some activists feel that mediation would amount to little more than a second STR Work Group.

“I don't believe we should have mediation. We did it already. The [STR Work Group] had a person that we paid money for,” Finance Committee member and former STR Work Group member Peter Schaeffer said. “Unless they've changed their point of view, and I'm talking about [anti-STR political action group] ACK Now, there's no reason to have a mediation because we'd just be knocking our head against the wall because it feels good.”

But proponents of mediation have been clear that it is vastly different from facilitation.

“I cannot stress this enough, I'm a trained mediator, it is not the same process,” Mohr said. “Mediation is very different. It plays out differently.”

One reason for this is that mediation happens behind closed doors—though the fact that mediation is not open to the public has also been a source of controversy.

“There's a lot of distrust in that Town Meeting room,” said Matthew Peel, one of the leaders of the STR regulation advocacy group Nantucket Neighborhoods First. “If we do mediation, something that's behind closed doors, that doesn't have the transparency of, say, a work group or something, in such a short timeline, I think a lot of people in this town are going to have a problem trusting.”

Peel participated in an STR subcommittee last year on behalf of Nantucket Neighborhoods First, along with Charity Benz, but the compromise that came out of the subcommittee ultimately didn’t gain their support.

As an alternative to mediation, the Select Board is looking to Reade, who is working with a group of islanders to craft a compromise bylaw that could gain the necessary two-thirds support at town meeting, and potentially other citizen efforts.

“I would like Arthur [Reade] just to go off with everybody and come back in a month with a proposition,” Select Board member Malcolm MacNab said.

Reade said that his group includes people with varied perspectives on STRs, though several stakeholders claim they either were never contacted or were asked to participate and then ignored.

“I was asked to be part of a group, and I said ‘yeah,’” former Select Board member, scalloper, and charter boat captain Bobby DeCosta said. “To the best of my knowledge, other people that I know were contacted by them, [but] no one ever had any input into this article.”

Reade, who said he is not undertaking his efforts on behalf of a client, sent a draft warrant article to Select Board members and other key players in the STR debate in advance of Wednesday’s meeting.

Reade said that his group would be willing to sponsor the article, but hoped the Planning Board and Select Board would also sponsor an article based on the one drafted by the group. He also stressed the importance of resolving the issue before the Annual Town Meeting scheduled for May 4th.

“It would be our hope that the Planning Board and Select Board would sponsor an article for Town Meeting based upon this draft. If preferred, obviously our group would be prepared to put this in form for submission as a citizens’ warrant article,” he wrote. “We do feel, however, that it would be advisable for the town to attempt to reach a solution to the present status of STRs without waiting until the 2026 [Annual Town Meeting], because of the present uncertainty felt by all stakeholders regarding what will be permissible for the 2026 summer rental season, considering that the Appeals Court may act upon the pending appeal before next spring.”

Reade’s draft article, which may change as a result of discussions with community members, would permit short-term rentals across the island by right, but require STRs to be rented for no more than 49 days between June 15th and September 15th and mandate STR contracts to last for at least seven days between July 1st and August 31st. These restrictions would not apply to owner-occupied STRs, STRs on the same lot as an owner-occupied dwelling, or STRs on the same lot as a unit rented long-term. It would also limit STR contracts to one per lot.

Wednesday’s discussion took place amid continued legal pressure against STRs on Nantucket, including Silver Street resident Cathy Ward’s lawsuit against her neighbors and the Nantucket Zoning Board of Appeals (ZBA).

Massachusetts Land Court Judge Michael Vhay ruled in favor of Ward for the second time last month, prompting the Town to appeal the ruling and seek a temporary stay. The stay has not been granted, and the appeal has yet to be decided, but the town at least found some relief from Ward’s lawsuit Monday when the Grapes agreed not to STR their property while the appeal is pending. This relieves the immediate pressure on the ZBA to enforce the ruling, while also giving Ward much of what she wanted from her suit.

“Right now, the town is not under the gun in terms of any existing court order, or potentially being in contempt, or being inconsistent across the island with regard to enforcement,” Pucci said.

Any enforcement action taken by the ZBA against the Grapes or other STR operators involved in legal cases could have far-reaching implications for the entire island. While Vhay has been clear that he only rules on the cases put in front of him, the reasoning he used to decide in Ward’s favor could apply to almost all non-owner-occupied STRs on Nantucket.

The fear and uncertainty created by Vhay’s ruling and the lawsuit in general have been some of the primary motivating factors behind the latest efforts to hammer out a compromise on STRs, and yet, it has also made those efforts far more difficult by raising tempers and leaving opposing interests at times unwilling to come together.

The atmosphere at Wednesday night’s Select Board meeting was tense. Commenters repeatedly interrupted Select Board members or shouted comments from the audience without using one of the designated public comment microphones or waiting to be recognized. The discussion on scheduling a special town meeting and STR meditation lasted about an hour and a half, but STRs were also brought up earlier in the night during the public comment portion of the meeting, when commenters spoke about the three percent community impact fee that must be paid by operators with multiple non-owner-occupied STRs and existing STR regulations.

After the meeting ended, several small groups of Select Board members, elected and appointed Town officials, and citizens gathered outside the meeting room to continue the discussion, sometimes in heated terms.

Mohr banged her hand on the table repeatedly at one point in the meeting to emphasize the need for disparate interests to work together in good faith to find a compromise.

“There's nothing we can do as a board unless you all in the community are willing to sit down with each other and iron this out,” she said.

She later apologized, citing her frustration.