Town Counsel Is Flat Wrong On Article 60

To the editor: As a municipal and land use attorney with over 20 years of experience representing multiple Massachusetts towns, I’m writing in response to questions raised about Article 60 by Nantucket Town Counsel in a recent news article (“Town Counsel Red Flags Article 60” Nantucket Current, April 13, 2023). Undoubtedly folks will also recognize me as the lawyer representing ACK•Now on this issue.

First, Town Counsel’s suggestion that passage of Article 60 would trigger “grandfathering” protections (a term that the SJC has admonished lawyers not to use) for STRs in residential neighborhoods is flat wrong. It is well-established that so-called “grandfathering” is only triggered when a use is explicitly permitted under the bylaw and then later prohibited.

Massachusetts courts have established that only lawful uses may be “grandfathered.” See Hall v. Zoning Bd. of Appeals of Edgartown, 28 Mass. App. Ct. 249, 258 (1990). Further, Nantucket Zoning Bylaw § 139-6.A. prohibits any use that is not specifically permitted – and the Zoning Bylaw does not explicitly list Short-Term Rentals as a permitted use anywhere. Since short-term rentals are not explicitly permitted in the bylaw, this use may not be “grandfathered” under G.L. 40A §6.

In fact, even Mr. Giorgio acknowledges as much - "It’s hard to predict how a court is going to rule” and he recommends “a comprehensive zoning regulation to eliminate the legal jeopardy that so many people are in.” (Nantucket Current, 4/13/2023).

Indeed, if STRs are already legally allowed as Town Counsel suggests with his “grandfathering” statement about Article 60, the Planning Board-sponsored zoning article in 2022 to allow STRs island-wide would have been unnecessary.

In addition, Town Counsel’s concerns over what he calls “ambiguities” in Article 60 are unfounded. The term “Short-Term Rentals” is already defined in the General Bylaw and it is typical for the zoning bylaws to look to the General Bylaws for definitions (and vice versa).

Most importantly, however, Town Counsel and I agree Article 60 is the only proposed zoning fix that directly addresses the status of short-term rentals on Nantucket.

Sincerely,
Nina Pickering-Cook