Short-Term Rentals On Trial: Nantucket Lawsuit Heard By State Land Court Judge

The short-term rental trial in Nantucket Superior Court hadn’t even started yet and visiting Land Court judge Michael Vhay was already getting an earful.

As Vhay gathered Tuesday morning on West Dover Street with the plaintiffs, defendants, and attorneys in the controversial case to view the short-term rental property in question, a bearded man - later identified as Jeff Schneider - pulled up to the group and stopped his car in the road.

“Is this for the trial?” he asked. “I’ve been living next door for 40 years, and it’s never been a problem.”

Schneider then drove off. The rest of the group spent the day sparring over a lawsuit that could have major implications for Nantucket’s short-term rental market.

The much-anticipated trial in the case of Silver Street resident Cathy Ward’s lawsuit against her neighbors - Peter and Linda Grape, who own the abutting property on West Dover Street that they operate as a short-term rental - as well as the town of Nantucket, got underway Tuesday in Nantucket Superior Court. Ward took the stand for several hours, facing questions from her attorney and cross-examination by lawyers representing the Grapes and the town of Nantucket.

Ward sued the town and her neighbors 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.

Tuesday’s trial was focused solely on whether Ward has standing to bring her complaint, as Judge Vhay said he expects the case to be appealed. So Ward’s testimony and the questions she faced pertained to whether the Grapes’ short-term rental has a direct effect on her and if Ward experiences noise and light from the rental that is distinct from the broader community.

In testimony that was at times tearful and defiant of the questions she was peppered with during cross-examination, Ward told the judge that the “constant turnover” and “constant celebratory occasions happening” at the Grapes’ home had led her to consider moving away from the island she loves.

“I used to look forward to the summer and spending summers outside,” Ward said. “Now when the summers come and I see the changeovers, it makes me cringe. It makes my blood pressure go up. I get tense and irritated. It’s to the point it’s made me consider leaving this island…I love Nantucket, I’d love to stay, but I want to enjoy my property as it was before.”

Ward testified that her experience and enjoyment of her property changed after the Grapes purchased the neighboring home on West Dover Street in 2017. She described a “constant” churn of disrespectful renters who would make noise, leave the flood light on all night, and allow dogs to bark and “yip” at Ward while she was gardening. Whether it was a baby crying early in the morning, a man walking naked to the outdoor shower, or a group of golfers talking about their round, Ward told Judge Vhay that she had to change the way she used her own home to avoid such disturbances.

“It was a constant flow of people,” Ward said.

All of that, Pickering-Cook said in her opening statement, demonstrated that the impact from the Grapes’ short-term rental was distinct from the noise and light coming from Wards’ other neighbors, and showed that she should have standing to bring the complaint.

“Ms. Ward is not talking about individual, isolated events,” Pickering-Cook said. “These types of disservices are an ongoing, weekly event in the summer and fall season. The harm Ms. Ward suffers is unique to the short-term rental use of the property.”

The Grapes, who were represented by Boston attorney Robert McLaughlin, were present in the courtroom for all of the testimony. They watched as McLaughlin cross-examined Ward, emphasizing that she did not know whether the noise and light were coming from the Grapes themselves, their family, or people renting the property. McLaughlin and the town of Nantucket’s attorney, Devan Braun, of KP Law, focused on the fact that there was no specific decibel level recording or light measurement that exceeded the town’s bylaws and that all of Ward’s allegations were subjective, rather than objective violations of any law or regulation governing the use of the Grapes’ property. Ward, McLaughlin said several times, was “gilding the lily and exaggerating” her claims of harm from the short-term rental next door.

“She's retired, lives alone, and what she really has is an unrealistic penchant for solitude,” McLaughlin said of Ward. “She has an unreasonably low tolerance for living in a neighborhood or with other people on the planet…Her testimony will be that she cannot tolerate overhearing conversations next door, a baby crying, a dog barking, a smoke alarm, a grill cover slamming, or a suitcase rolling across the patio. She has an intolerance of everyday noise, and that’s subjective if that bothers her.”

The defense attorneys also seized on the fact that Ward had sent only one letter to complain about the situation to the Grapes, who immediately responded and provided their cell phone numbers. Ward, they said, never once called them, nor did she call the police or the Board of Health regarding the nuisance issues she raised in her lawsuit. They made a point of mentioning that Ward herself had rented out her property to vacationers before moving in full-time in 2010.

“She could have gone out to ‘Sconset and bought a house, and maybe she should have if that’s the solitude she wanted,” McLaughlin said.

Their argument to Vhay, which they pushed repeatedly, was that Ward’s complaints regarding noise, light, and other issues were not unique to a short-term rental and that they were simply the result of her living in a densely settled neighborhood in a vacation destination.

“She first used her home as a vacation home and from 2000 to 2010, she rented it out,” Braun said of Ward. “Now Ms. Ward is contending that the Grapes doing the same thing is unlawful. There’s no evidence that noise levels exceeded permissible decibel limits, or that the lights exceeded permitted lighting limits under the bylaw. The impacts are so minimal, Ms. Ward has never once found them so egregious that she needed to call the police. They’re so insignificant, she’s only complained to her neighbor once or twice. These are typical, residential noises in a seasonal vacation community.”

Present in the courtroom on Tuesday were a handful of high-profile island residents who turned out to watch the trial. They included Penny Dey, president of the Nantucket Association of Real Estate Brokers; Planning Board chair David Iverson; former Select Board chair Rick Atherton; Inquirer & Mirror chairman and CEO David Worth; Nantucket Land & Water Council executive director Emily Molden; former ReMain Nantucket executive director Melissa Philbrick (who lives next door to Ward); and ACK Now executive director Julia Lindner.

ACK Now founder Peter McCausland was not present, but he told the Current last month how important the trial is to his group’s cause.

“A lot is riding on that,” McCausland said in November. “The judge has indicated he knows how he’s going to rule…I hope that he rules that a short-term rental is not a permitted principal use in a residential district in Nantucket and that it’s commercial. The Grapes, in terms of the time it’s occupied - 25 percent by owners and 75 percent by renters - it’s used more for renting than by the owners. So its principal use is commercial.

"I firmly believe short-term rentals are not good for the Nantucket community in terms of housing, the intensity of use on infrastructure and the environment, and the destruction of neighborhoods," McCausland continued. "That’s why our board decided to take on the short-term rental issue. We’re just trying to help keep the community."

McCausland hopes the judge’s decision will be similar to the 2021 Massachusetts Supreme Judicial Court (SJC) decision involving short-term rentals known as the Lynnfield case, or the Styller case. That lawsuit reached the SJC after Alexander Styller, the owner of a home in Lynnfield, Mass., appealed a decision by the local building inspector that prohibited him from offering short-term rentals of his home based on the fact it was located in a residential zoning district. After losing at the local Zoning Board and the Land Court, Styller appealed to the SJC, which also ruled to uphold the building commissioner’s decision. The decision stated: “short-term rental use of a one-family home is inconsistent with the zoning purpose of the single-residence zoning district in which it is situated, i.e., to preserve the residential character of the neighborhood.”

While the ramifications of the judge’s ruling - especially if he sides with Ward and ACK Now - could be seismic for property owners and Nantucket’s economy, town counsel John Giorgio has previously spelled out several possible responses that could be taken in the aftermath of such a decision.

“There would be time to react if a court somehow invalidates short-term rentals because he or she determines it’s a commercial use,” Giorgio said.

The town would have the ability to appeal the decision and take it up to the appellate level, he stated, and another special town meeting could be called within a short period of time to address the zoning issue. Assuming the high threshold of a two-thirds majority vote was reached, would that overrule the court’s decision?

“That’s a legislative act and if the town has determined to allow short-term rentals as a primary use, it wouldn’t overrule the court but it could make any decision by the court moot,” Giorgio said at the Special Town Meeting in November.

The various “neighbor vs. neighbor” lawsuits involving short-term rentals on Nantucket (there are two others pending in the courts) all have similar characteristics. In Ward’s complaint, her attorney claimed that she is often unable to enjoy her property due to “frequent outdoor parties with groups of young men playing drinking games and blaring music so loudly that Ms. Ward cannot watch television or entertain guests in her home.” The guests have “little to no care or concern” for Ward and the proximity to her home, the lawsuit states.

“Particularly during the peak season months, this is a never-ending cycle for Ward,” it says.

The Grapes rent the West Dover Street home for up to $8,000 per week during the summer.

In the fall of 2021, Ward took her complaints to the island’s zoning enforcement officer, Marcus Silverstein, with an enforcement request that he determine the Grape’s property to be in violation of the town’s zoning bylaw – specifically that a commercial use is not allowed in a residential district. After the island’s building commissioner Paul Murphy ruled that there was no violation, Ward appealed his decision to the Zoning Board of Appeals. In November of that year, the ZBA voted to uphold Murphy’s decision, determining that short-term rentals operating in residential districts do not represent a violation of Nantucket’s zoning bylaw.

Several members of the Zoning Board of Appeals indicated they did not believe it was their role to “make policy” in the larger debate over short-term rentals by overturning Murphy’s denial of Ward’s zoning enforcement request. The ultimate decision on how the island should handle short-term rentals, they said, was better left to voters at Town Meeting.

The Grapes will get their opportunity to testify in the case when the trial resumes on Jan. 3 in Boston.