Zoning Board Rules In Favor Of Short-Term Rental In Residential District

In the high-profile remand hearing dealing with the legality of a short-term rental operating in a residential neighborhood on the island, the Nantucket Zoning Board of Appeals (ZBA) on Thursday voted 4-1 that the use of the property on West Dover Street as a vacation rental was permissible under the island’s zoning code.

For nearly the entire summer, the ZBA has been considering a draft decision in favor of the property owners - Peter and Linda Grape - during the remand hearing stemming from their neighbor Cathy Ward’s lawsuit against them over the use of the Grape’s property as a short-term rental (STR).

The case has been in dispute for several years. Back in March, Massachusetts Land Court judge Michael Vhay had rejected the ZBA’s first decision in the case and issued a bombshell ruling that the town's zoning bylaw does not allow short-term rentals as a principal use of a primary dwelling, but that they could be permissible as an accessory use. Vhay's judgment rejected the town's long-held 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. Vhay remanded the case back to the ZBA for further deliberations on whether the Grapes’ rentals of the property qualified as an accessory use.

On Thursday, the ZBA approved a decision drafted by town counsel George Pucci in favor of the Grapes that will almost certainly be appealed back to the Massachusetts Land Court.

“The Board is mindful and respectful of the need to protect the character of densely developed neighborhoods such as the neighborhood involved in the Ward case but is also mindful of the need to interpret the provisions of the Nantucket Zoning Bylaw consistent with what is considered customary use particular to Nantucket as a seasonal vacation community with limited hotel or lodging options,” the ZBA’s decision reads. “The Board finds further that the Grapes’ rentals of the Main House at the property qualifies as customarily incidental to their as-of-right residential use of the primary dwelling.”

Read the full decision by clicking here

The town’s zoning bylaw defines an accessory use as “Separate structures, buildings or uses which are subordinate and customarily incidental to a principal structure, building or use located on the same lot.”

The ZBA had gone back and forth on how to determine that the Grapes’ short-term rentals are subordinate to their residential use of the property, struggling over how to calculate “vacant days” when the home is unoccupied.

While Judge Vhay had found that the Grapes had rented their main house on West Dover Street more often than they had used it for personal stays, the ZBA in its decision stated that it “declines to follow a simple mathematical equation on this issue…Under the circumstances presented, the Board finds the number of vacant days available for use and occupancy by the owner to be ‘a’ relevant factor on subordinate use, although not the determinative factor. There is no numerical equation or restriction in the Nantucket Zoning Bylaw, nor other definitions to guide the Board on the issue of subordinate use. The Board therefore interprets the Bylaw in light of what is considered a customary use particular to Nantucket and bases this decision on the facts particular to the case and the totality of circumstances.”

That rationale will likely be the centerpiece of an appeal that Cathy Ward said Thursday she intends to pursue.

“Of course I’m disappointed in the response of the Zoning Board and how they have ignored the plain language of the bylaws and are forcing the litigation to continue,” Ward told the Current. “So yes, unfortunately, I will (appeal the decision). It makes no sense to me that you can count a vacant day as occupied when you own more than two or three homes. How you can occupy all three homes at one time and count it as occupied is beyond my comprehension.”

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 group, and her attorney, Nina Pickering Cook, also represents ACK Now.

Peter McCausland, the founder of ACK Now, said the group will once again be supporting an appeal of the ZBA’s latest decision.

“We have secured the funds,” McCausland said. “We are confident that the Land Court will overrule the ZBA. If Article 2 passes (at next week’s Special Town Meeting), the ZBA ruling will be rendered moot. If Article 2 fails, the Land Court will decide if the short-term rental use of the Grapes’ dwelling is a legal accessory use. These ZBA members are ignoring Judge Vhay and Massachusetts law and don’t care because the town is paying the bills.”

The ZBA’s vote came on the heels of allegations about their impartiality in the case lodged by Mill Street resident Anne Dewez, who claimed last month that ZBA members work for and run companies that profit off of short-term rentals. The appointed members of the ZBA have remained silent on the issue of potential conflicts of interest, declining to comment and directing the Current to the town’s public relations department — even though the Town’s controversial gag order that has silenced many municipal employees in the last year does not apply to elected or appointed officials.

On Thursday, ZBA members Susan McCarthy, John Brescher, Mike O’Mara, and Elisa Allen voted in favor of the decision upholding the Grapes’ use of the property as a short-term rental. Joseph Marcklinger cast the lone vote of dissent.

“My thoughts were that it, (the) short-term rental, was not customary, because the renters use Airbnb, Vrbo, Expedia, and the internet, to rent out their places,” Marcklinger told the Current. “As those institutions have only been around for 20 or so years, not long enough to be customary. To me customary is generational. I did think that our decision was very well thought out and well crafted.”

Ward first sued the town and the Grapes 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.

Ward testified in court last year 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.

While Thursday’s decision by the ZBA applies only to the Ward case and the Grapes’ property on West Dover Street, the ruling could impact other short-term rentals on Nantucket should challenges arise against other STRs in residential zoning districts. While it may not set a formal precedent, it is indicative of how the current ZBA will rule on similar cases. There are hundreds, if not more than 1,000, active short-term rental properties on the island, many not primarily occupied by the homeowners.