Landmark Case: Judge Rules Against Short-Term Rentals

Reader-submitted content. Article by Dean Geddes for the Nantucket Enquirer.

In a ruling whose ramifications will echo through the Nantucket island-wide argument over the short-term rental business, a state land court judge determined today that the town’s zoning bylaw does not allow homes in residential areas to be used primarily as rentals.

The ruling upends a long-standing argument of the town that short-term rental units should be considered a residential usage. Proponents of that argument say the ruling could jeopardize hundreds of short-term rentals on the island.

Nina Pickering-Cook, counsel for Cathy Ward, said this ruling finally provides clarity on the issue of the town’s zoning code.

“A lot of the legislative struggle (with regulating STRs) has been based in the fact that folks were not on the same page with respect to how to interpret the current bylaw,” she said.

“And with this clarity, town meeting can decide how to move forward. I know Cathy is pleased and hopeful that this will help protect residential neighborhoods in Nantucket from essentially living next to mini-hotels and what we see as solely commercial uses.”

Ward’s suit against her neighbors, the Grapes, for operating a home next to her that was used primarily as a short-term rental, was at the center of the ruling. The suit also named the town’s Zoning Board of Appeals (ZBA) for siding with the Grapes in their initial ruling.

“I am pleased with the judge’s decision, and I look forward to the town upholding the zoning,” Cathy Ward said.

Pickering-Cook said based on this ruling, homes used purely as STRs are now illegal, and that takes effect immediately. As for how it would affect the summer season it depends, she said, on how the town enforces this ruling.

“It’s up to the planning and zoning enforcement officer whether they choose to enforce it,” she said. “I think if they don’t, they’ll be faced with complaints from people forcing them to enforce it.”

Local attorney Steve Cohen disagrees on whether the ruling will affect the 2024 summer season.

Cohen was not a counsel in this case, but submitted a zoning article for town meeting in May that would expressly allow for short-term rentals in all zoning districts, that would potentially counteract this ruling.

“I assume that this will be appealed, and that the judge’s ruling would be stayed during that appeal,” he said. “And I hope that we will correct that (decision) at town meeting using the warrant article that I proposed,” he said.

But Pickering-Cook said that she doesn’t expect the ruling to be stayed if there is an appeal.

“The judge could grant (a stay), but that would be unusual in a zoning case,” she said.

Dave Iverson, planning board chair, said this ruling could set a precedent far beyond the island.

“This ruling is going to send shockwaves, not just here, but through any resort community that has any ambiguity in their zoning code,” he said.

Iverson added that the ruling will really come down to how you define the primary use and accessory use of a property.

The ruling does still allow for homes to be short-term rented as an accessory use. But it comes as a major victory for opponents of homes being used exclusively, or primarily, as short-term rentals. ACK•Now, an advocacy group that Ward is a member of, has battled for years to restrict the growth of short-term rentals on the island.

“The ZBA Decision thus presents no reasoned interpretation of the Zoning Bylaw,” Judge Michael Vhay wrote in his decision. “The Town and the ZBA attempt to stretch the Bylaw’s definition of “primary dwelling” to cover short-term rentals doesn’t work primarily for the same reasons that effort failed in Styller.”

Styller was a state Supreme Court ruling in Lynnfield that held the short-term rental of a private single-family home was at odds with the zoning purposes of residential districts.

Town Counsel John Giorgio, addressed the ruling briefly in a joint meeting with the Select Board, Finance Committee and Planning Board on Thursday afternoon.

“Please don’t ask me a lot about litigation strategy because we are still digesting this,” he said. “This litigation I’m going to guess is going to go on for a while. You have 30 days to file an appeal.”

Giorgio has said in the past the town would most likely appeal an adverse ruling.

“We are awaiting an analysis from town counsel and can’t really comment on it until we have had an opportunity to sufficiently evaluate the decision,” Libby Gibson, town manager, said shortly after the ruling was handed down.

Iverson said the town and voters are now stuck between two extremes, allowing STRs as primary use everywhere on the island with Cohen’s article, or nowhere if the ruling stands.

“If the article coming to town meeting gets approved by the community, then this decision is moot,” he said. “But if we rush to fix this by approving (STRs as a primary use) in all zoning districts, I think we will regret it down the road.”

The ruling returns the matter to the town’s ZBA, to make a decision that is consistent with the court’s judgment. The town is under a deadline of 45 days after the official date of the ruling.

“The Court will remand the case to the ZBA so that it can determine whether the Grapes rentals of their Main House are a permissible ‘accessory use’ of that structure, and if not, order the appropriate remedies,” Vhay wrote.