Accessory Use: A Trojan Horse For Never-Ending Short-Term Rental Lawsuits

To the editor: Advocates claim that Zoning Article 2 for Special Town Meeting would bestow restricted short-term rental rights equally on both year-round and seasonal resident homeowners. On the surface, it might appear this way.

Unlike previous proposals to grant limited STR rights in zoning, Article 2 does not explicitly state that owners must spend a number of nights in the home to earn the ability to STR that home. Article 2 avoids quantifying a residency requirement to steer clear of the Dormant Commerce Clause of the Constitution. So - no requirement to reside in the home means no opportunity to discriminate against any type of homeowner, right? Not quite.

Article 2 specifies that STRs be classified as an accessory use in zoning. The Nantucket zoning bylaw defines accessory uses as, "Separate structures, buildings or uses which are subordinate and customarily incidental to a principal structure, building or use located on the same lot."

Is your head spinning yet from legal jargon? Mine sure is! Yet it is apparent that a residential property's principal use must be one that is clearly defined in zoning -- for instance, as a principal residence -- before any accessory use, such as Article 2 proposes for STRs, is permissible.

Thus Article 2, if passed, opens the door for a never-ending series of new lawsuits in which neighbors allege that insufficiently present homeowners, whose time spent on-premises fails to meet the principal use test, are operating an illegal accessory STR.

Is this what we want for our community?

Signed,
Rebek Duhaime