Select Board Will Not Appeal Court Ruling On Short-Term Rentals

Following a landmark court ruling earlier this month that could significantly restrict short-term rentals on Nantucket, the Select Board announced Friday that it would not appeal the decision.

A Massachusetts Land Court judge ruled against the town on March 14 in the short-term rental legal challenge brought by Silver Street resident Cathy Ward against her neighbors and the Nantucket Zoning Board of Appeals. Judge Michael Vhay ruled that the town's zoning bylaw does not allow short-term rentals as a principal use of a primary dwelling. He reversed the Zoning Board's prior decision in the case, and remanded the matter back for further consideration.

While there was speculation that the town would appeal the ruling, the Select Board voted Thursday against that strategy in a closed-door executive session. The vote was unanimous, according to Select Board member Brooke Mohr, who chaired the meeting.

"At its executive session on March 28, 2024, after considering input from the Zoning Board of Appeals and Town Counsel, the Select Board voted not to appeal the recent decision in the case of Ward v. ZBA...recognizing that the appropriate step to resolve this issue is amendments to the zoning bylaw, which would need to be adopted by Town Meeting," the town announced in a press release on Friday.

At the upcoming Annual Town Meeting on May 7th, island voters will have an opportunity to vote on attorney Steven Cohen's citizen petition - Article 59 - that would amend Nantucket's zoning bylaw to codify and allow short-term rentals in all zoning districts (with the exception of commercial-industrial, or CI). If approved, the zoning change would render the Land Court ruling moot, however, it will require a two-thirds majority for passage. Similar zoning amendments have either been rejected or tabled at Town Meeting over the past three years.

"We weighed the value of an appeal versus what it would or would not accomplish," said Mohr told the Current. "The solution to this is clarifying zoning. That's always been the solution to this, and the (court's) decision clearly pointed us toward zoning as the necessary vehicle." 

Even though the Annual Town Meeting warrant is closed, Select Board member Matt Fee said there are multiple parties working to craft potential "compromise" petitions that could be taken up as a Special Town Meeting within the May 7 Annual Town Meeting.

"There are efforts to give Town Meeting an option that is a compromise and shorter than full codification," Fee said. "If our choice at Town Meeting is allowing unlimited short-term rentals forever, we’ve closed the door on any sort of reasonable position. I’m very concerned about it. People are passionate about it and it's polarizing. I’m not sure where we’re going to end up."

Vhay's judgment earlier this month rejected the town's longheld position that short-term rentals are a residential use under the town's zoning bylaw. That interpretation had been used by the town's building commissioner Paul Murphy and the Zoning Board to dismiss requests for enforcement actions that challenged the legality of short-term rentals operating in residential neighborhoods.

With hundreds - perhaps even thousands - of short-term vacation rentals on Nantucket, the implications and potential impacts of Judge Vhay's ruling on property owners and the overall island economy are significant.

Ward sued the town and her neighbors - Peter and Linda Grape, who own the abutting property on West Dover Street - back in February 2022, claiming that their short-term rental property operating in a residential zoning district is an illegal commercial use and that the decision by the town’s Zoning Board of Appeals to reject her request for an enforcement action was arbitrary and capricious.

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 short-term rentals 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.

The Select Board will further discuss the topic and accept public comment at its April 3 meeting.