Adopting Article 60 Would Be Misguided And Counterproductive

To the editor,

I want to jump into the short-term rental (”STR”) debate but first want to lay my cards on the table. I have been a real estate attorney on Nantucket for more than 40 years and was once chairman of the Zoning Board of Appeals. My wife and I own a home on Nantucket which we do not rent. I have no dog in this fight and I am not representing any lobbying groups or clients.

This is my personal opinion. Nantucketers should have the right to rent their homes subject to reasonable regulations which preserve the culture and historical character of the island. I support the efforts of the short-term rental (“STR”) workgroup to propose a comprehensive town by law to regulate STRs and do not support the adoption of Article 60 to impose STR regulations because Article 60 would protect all STRs existing prior to the adoption of this zoning change, including corporate STRs.

The assertion that STRs are an unlawful and unpermitted use because they are not expressly set forth in the Nantucket zoning by law is flat out wrong. Residential uses are expressly permitted in the zoning by law. STRs are a type or category of a permitted and lawful residential use.

There are numerous types or categories of permitted residential uses on Nantucket. Some types or categories of permitted residential uses are specifically enumerated in the zoning by law, i.e., secondary dwellings, tertiary dwellings, employee dormitories, elder housing facilities, duplex dwellings, and residential development options like flex development and the housing needs program. Other types and categories of permitted and lawful residential uses are not enumerated in the zoning by law but have existed on Nantucket for many years prior to the enactment of the zoning by law in 1972, i.e., STRs, assisted living facilities, rooming houses, long term rentals, multi-family dwellings, rectories, student dormitories, barracks, parsonages, caddie camps and light houses.

Massachusetts law protects lawful types or categories of residential uses, like STRs, that are later limited or prohibited by a zoning change like Article 60. M.G.L c. 40a, section 6. (This zoning protection has historically been referred to as “grandfathering,” a term now disfavored by the courts). Town Counsel John Giorgio is flat out right: adoption of Article 60 would provide existing STRs with blanket zoning protection and would be inconsistent with a comprehensive scheme to regulate STRs through a general by law and would also undermine the effectiveness of such a general by law.

It is simply misguided and counterproductive to adopt Article 60, limit STRs and then face multiple lawsuits claiming that all pre-existing STRs on Nantucket, including the Copley Group STRs and other corporate STRs, have blanket zoning protection and are not subject to new zoning or general by law STR regulations. A comprehensive general by law is the appropriate and most effective way to regulate STRs. This general by law will treat all STRs equally and fairly, and no pre-existing STRs will be exempt from reasonable regulations.

Sometimes good intentions create adverse unintended consequences. This is the upshot of Article 60. To paraphrase the Poet Robert Burns: “The best laid schemes of mice and men Go oft awry.”

Please vote no on Article 60 and support the STR work group’s efforts to craft an effective, reasonable, and comprehensive general by law which regulates STRs. Thank you.

Sincerely,

Kevin F. Dale