A ruling in state Land Court last month will likely force towns across the Cape and Islands to vote on new zoning bylaws for short-term rentals — a complex proposition that could put some existing short-term rental properties on the wrong side of new rules.
In Catherine Ward v. Town of Nantucket, Judge Michael Vhay found that Nantucket’s zoning bylaw, which is silent on the subject of short-term rentals, cannot be construed to allow them as a “principal use” in residential zones, as town officials had argued.
Short-term rentals could be a permissible “accessory use” of a house in a residential zone, Vhay wrote. But Nantucket’s zoning bylaws do not define where accessory short-term rental activity would end and principal use would begin.
Neither do the zoning bylaws of Provincetown, Truro, Wellfleet, Eastham, or any of the towns on Martha’s Vineyard. In most towns, it is already too late to add bylaw changes to this spring’s town meeting warrants.
Provincetown has already adopted a general bylaw that requires corporations and trusts to name their human owners and that limits short-term rental certificates to two per owner. Truro and Eastham have similar bylaws on their town meeting warrants this May.
General bylaws do not remove the need for a zoning bylaw, however, Vhay wrote.
“Our zoning bylaws will need some proactive housekeeping in response to the court’s ruling,” said Provincetown’s zoning board of appeals chair Jeremy Callahan.
“People have been doing short-term rentals for as long as people have been coming to the beach,” said Provincetown Select Board chair Dave Abramson, “but I’ve been concerned that some people were running a business under the guise of ‘Oh, we’re just a homeowner renting out our house.’
“We allow commercial lodgings in the Residential-1 zone by special permit,” Abramson said. “I think voters are now agreeing there needs to be some regulation.”
What Happened on Nantucket
Judge Vhay found that Catherine Ward’s neighbors, Peter and Linda Grape, use their vacation home for 40 to 55 nights per year and rent it short-term for 90 to 111 nights per year. He ordered the Nantucket Zoning Board of Appeals to reconsider Ward’s complaint against the Grapes and determine if that level of short-term rental activity is an “accessory use,” which would be permissible, or a “principal use,” which would not be permissible.
Nantucket’s zoning bylaw is constructed like many others — including those on the Outer Cape — as a “permissive zoning bylaw,” meaning that it prohibits uses that are not specifically permitted.
Despite this structure, and despite having a short-term rental industry that brought in $124 million in 2022 according to state tax figures, Nantucket has repeatedly failed to write short-term rentals into its zoning bylaw.
“There have been four town meetings on this subject, but it feels like 20,” said Nantucket Select Board vice chair Brooke Mohr. “In 2022, we passed a general bylaw that requires registration, a fee, and inspections, but we haven’t gotten to anything beyond that that the community agrees on.”
Short-term rentals have been a divisive topic on the island, with some neighbors calling them a nuisance, some saying they deplete the island’s year-round housing stock, and others saying they are essential to the island’s economy.
After its 2022 town meeting, Nantucket convened a short-term rental work group that met for almost a year to develop a general bylaw and companion zoning bylaw, Mohr said.
That group came to a compromise that involved limiting short-term rental registrations to one per owner, requiring corporations holding short-term rental properties to name their human owners, and limiting how many rental contracts each owner could book each summer. During the July and August high season, owners would be limited to four rental contracts unless they had a verified short-term rental history at the property, in which case they were “protected” and could have nine.
“It was really complicated because they were trying to get support from people with completely different views,” said Mohr. “They wanted to make the financial model less attractive going forward, but they didn’t want to put anyone in jeopardy who had already bought a property.”
The compromise was on the November 2023 town meeting warrant as two measures, a general bylaw and a zoning bylaw. Both were defeated.
“It was chaotic,” said Mohr. “The finance committee introduced a motion to link the two articles, then the select board moved to de-link them, and it just went down a procedural rabbit hole.”
The general bylaw was defeated 431 to 523, after which the zoning bylaw, which would have required a two-thirds vote to pass, was indefinitely postponed.
The Question of Principal Use
There were already four articles related to short-term rentals on Nantucket’s May 2024 town meeting warrant when the Ward decision was announced in March. The town is not appealing the case.
“I don’t know what’s going to happen now, but it’s going to be really interesting,” Mohr said.
According to lawyer Nina Pickering-Cook, who represented Catherine Ward at Land Court, Ward v. Nantucket was intended to spur the town to apply its existing zoning code — which would effectively prohibit at least some current rental activity.
“The court found that short-term rentals are clearly not permitted as the principal use of a property under Nantucket’s zoning bylaw,” said Pickering-Cook. “It could be an ‘accessory use,’ but that has to satisfy two criteria: it has to be ‘customarily incidental’ to the principal use and it has to be ‘subordinate’ to the principal use.
“There’s a great deal of case law around subordinate use,” said Pickering-Cook. “Given the facts found by the judge, where the Grapes rented the house more than they used it, I think it’s unlikely the Nantucket ZBA will be able to justify a finding that their use was accessory.”
Town meeting voters could endorse their own definition of accessory use, Pickering-Cook said, but such a bylaw would require a two-thirds town meeting vote.
“Once you’re talking about bylaw options, there’s a number of ways you could cut the cake,” said Pickering-Cook. Towns could define accessory use according to how many nights a property is rented, the length or number of bookings, or how often a human owner uses the property, for example.
It would be difficult to define corporate or investor-owned short-term rental properties as being “accessory to residential use,” however. Full-time short-term rental properties would need to be specifically listed in Nantucket’s principal use table to be legal, according to Vhay’s ruling, and it would require a two-thirds vote of town meeting to accomplish that.
Nantucket’s voters defeated such a measure in 2022. They will vote on another, Article 59, at their May 7 town meeting.
Humans Who Stay 30 Days
“If this were easy, we would have figured it out a long time ago,” said Nantucket’s former housing director Tucker Holland. “I do think, though, that corporations operating what are essentially scattered-site hotels around the island is not really what the community wants.”
The town of West Tisbury on Martha’s Vineyard formed a short-term rental committee in 2021. According to members Bea Phear and John Rau, the group struggled to find agreement but ultimately decided that banning corporate and investor-owned short-term rental properties was something they could all support.
“We decided we wanted to continue the tradition of short-term rentals by people who live here, both seasonal and islander,” said Phear. “So, we decided to limit short-term rental properties to one per owner, and the owner had to demonstrate they’re a member of our community with the 30-day residency rule.”
If their proposed bylaw passes, the human owners of short-term rental properties would have to spend at least 30 days out of the year at their property. Rau said the committee had considered a 180-day rule but decided to draw the line at 30 days to include seasonal residents.
