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On March 14, Land Court Judge, Michael D. Vhay held that Short Term Rentals (STRs) are not allowed as a “principal use” of a primary dwelling in the Residential Historic District, and by extension to other residential districts. Although they are not allowed as a “principal use,” STRs are not illegal on Nantucket, and no final determination has been made. The Judge remanded the issue of whether STRs can be considered “accessory uses” that are subordinate and customarily incidental to a primary use. If the ZBA finds that STRs are “accessory uses,” then STRs would be allowed under the existing bylaw. After the issue is decided on remand by the ZBA, the Court will make its ruling, and then it can be appealed. Final resolution of the Ward case will take some time.
Possible Preemption of Ward
Another option, would be to preempt the decision of the Land Court by expressly allowing STRs as a “principal use” in the Zoning Bylaw. This could be achieved with a 2/3 vote in favor of amending the Zoning Bylaw at the upcoming Annual Town Meeting (ATM) on May 7. Warrant Article 59, sponsored by Steven Cohen, Esq., does exactly that. According to Mr. Cohen, “It would exclude rental of residential properties from the definition of commercial uses, and it would create the new uses of Short-Term Rentals and Long Terms Rentals, and would allow them in all zoning districts except the Commercial Industrial district.” If STRs are expressly allowed in this way, then no further inquiry into "accessory use" is needed, and they are a "principal use." Also, Article 60 is a companion Article, up for a vote at the May ATM, which prohibits corporate owners from obtaining STR registration certificates from the Town.
Specific Facts of Ward
In Ward, the plaintiff argued that STRs are a commercial use, and not allowed in most residential areas. Defendants argued that STRs are a residential use “that is customary and allowed on Nantucket, and that this is reinforced by the Town’s adoption of a STR registration system under the Board of Health.”
The Judge disagreed with the plaintiff, holding STRs are not a commercial use, but also found that STRs are not allowed under the current Zoning Bylaw. According to the Court, "All allowed uses must be expressly stated, and the Zoning Bylaw does not expressly allow STRs as a 'principal use.' Because rentals are mentioned as an allowed 'principal use' for secondary dwellings, and not for primary dwellings, it can be implied that this lack of express allowance, prohibits that use."
However, the Judges states that the Zoning Bylaw does expressly allow for “accessory uses” that are “subordinate and customarily incidental to a primary use,” and it is possible that STRs could be an accessory use. If so, then STRs would be allowed under the existing bylaw without changes to the bylaw.
According to Mr. Cohen, “It is possible that the ZBA will determine that STRs are an allowed ‘accessory use of residential property.’ This raises the question of what use is 'primary' and what is 'accessory,' and really what is 'use.' In an unrelated lawsuit regarding a different Nantucket property, this same Judge recently determined that 'use' of a dwelling is whether there is an effort to market, rent, or occupy a dwelling - or to maintain it as a dwelling, and that a dwelling is a structure used 'or to be used' for habitation. That is, it is possible that the maintenance of a dwelling for potential occupation is a sufficient primary use such that seasonal use as an STR could be a subordinate and customary accessory use – the primary use may not need to be actual occupation.”
Stay tuned for more to come in the following month!