The Proponents Of Article 59 Are Wrong. Here's Why

To the editor: The remarks made by Arthur Reade and Steven Cohen at the recent Nantucket Together forum require a response because many of them are misleading and will scare voters.

Arthur Reade didn’t seem to know why the town didn’t appeal Judge Vhay’s ruling. Could it be that the town, by making up its own interpretation of the zoning law, wasted a lot of taxpayer money, exacerbated the housing crisis, didn’t protect neighborhoods, and created this entire mess? Another practical reason is that the town can’t win. The Land Court followed precedent as it was required to do. Town Counsel warned the Select Board and the Planning Board in 2021 after the Styller decision by the highest court in Massachusetts. It held that short-term rentals (STRs) are probably not permitted in residential zoning districts, except by accessory use. That is when the chair of the Select Board and the Planning Director decided they needed to “fix” zoning. Fast forward to today, those attempts have failed three times, and now voters face a fourth attempt in Article 59.

Arthur went on to talk about procedural matters but he eventually got around to saying STRs are legal as an accessory use. He said guidelines are needed and most voters agree, as long as residential zoning is protected. He talked about the threat of more litigation, but why? Cathy Ward won. The other cases, paid for by the plaintiffs, are on hold. Arthur claims it is imperative that action to change zoning be taken at this Annual Town Meeting. Why? If the voters at Town Meeting overrule Judge Vhay by passing Article 59, they will be throwing away 50 years of residential zoning protection. Judge Vhay’s ruling is the law and has been since the early days of zoning. Why not accept it and develop guidelines for accessory use STR and keep the protection of zoning? If, as Steven Cohen claims, these properties are really “homes," why not tie the ability to STR to the amount of time the owner actually spends on the property?

Steven Cohen claims that Article 59 was the law before Vhay changed it, so 59 is needed to reverse the Vhay decision. That sounds pretty circular, especially since he submitted 59 long before Judge Vhay ruled. The registration system for STRs didn’t change zoning or reflect an intent of voters to change zoning. It was adopted when zoning changes were rejected. The Judge said that he wouldn’t rule on whether STRs are commercial because that was the wrong question. He said the right question is: are STRs a permitted use under our zoning bylaw. He ruled that they are not permitted as a principal (majority, dominant) use in residential districts, while affirming that STRs are legal as an accessory use (used by owner more than rented).

Steven went on to say that “most summer visitors want to stay in the homes that are either just rentals or that are owned by summer people that don’t stay in them as often because they need to rent to pay the mortgage or offset expenses or whatever ……” I guess that is code for people who want to run businesses in residential zoning districts. Do businesses have a place in neighborhoods? We don’t think so. Steven even suggested that voters should understand that living next to a STR mini-hotel is the same as any other neighbor, but I don’t think he convinced many homeowners who have had the experience!

We have always said that year-round and seasonal residents have the right to rent. Judge Vhay affirmed this! We agree with Arthur that guidelines are needed. We don’t want any more litigation, even though we are proud to have helped Cathy who needed help standing up to the town. It is what got us into this mess by not enforcing zoning. Unfortunately, many people with direct and indirect financial interests in the outcome of this zoning debate serve on town boards. Many work hard for no pay, but they should have bowed-out on this issue long ago.

We know that this is a tricky problem. We know that there are some properties that have been rental properties for a long time. Unfortunately, the owners of these properties have hitched their wagon to the “gut residential zoning” folks. We ask them to consider what Nantucket will look like in 30 years if 59 passes and to consider the accessory use article for which PNNF is gathering signatures. We can’t focus on investors and the money they spread around, mostly off-island. There has to be a compromise that focuses on housing, neighborhoods and the community as a whole.

Peter McCausland
Founder, ACK Now