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Nantucket Stream | After the Land Court’s ruling, the zoning plan begins…

The pretrial hearing arising from Cathy Ward’s short-term rental lawsuit against her neighbors and the Zoning Board of Appeals began Monday, with the ZBA hearings of both sides’ attorneys and members of the general public. Monday’s hearing was the result of Massachusetts Land Court Judge Michael Vhay’s decision in March that the city’s zoning code does not allow short-term rentals as the principal use of a primary residence. He reversed the Zoning Board’s previous decision in this case and remanded the case for further investigation.

Ward claims that her neighbors’ use of their home primarily for short-term rentals (STR) is not permitted under the island’s zoning ordinance. No decision was made in the case on Monday, with ZBA President Susan McCarthy adjourning the meeting after two and a half hours. The hearing will continue on June 24 at 1 p.m., when the ZBA will hear a similar case against a neighborhood STR.

“(This will) give us time to process what we have heard,” ZBA President Susan McCarthy said. She added that continuing the hearing will allow the ZBA to better understand the community’s perspective on the issue. “I welcome additional comments from the public,” she said.

The ZBA initially ruled against Ward, stating that short-term rentals were allowed as a primary use in a residential district, but was overruled by a Massachusetts Land Court judge last March. Judge Vhay ruled that the city’s zoning ordinances do not allow STRs as a principal use in a residential zone, but do allow STRs as an accessory use. The case was remanded to the ZBA to determine whether Grapes’ use of the property qualified as an accessory STR.

“The Grapes used the house more often for rental purposes than for personal residence,” said Ward’s attorney, Nina Pickering-Cook. “The rental use…was almost double the residential use.”

“Who is going to go around and determine who lived in each of the 1,700 (STRs) and how many days?” Robert McLaughlin, the Grapes’ attorney, responded. “It is an unworkable solution.”

An accessory use is defined in Nantucket zoning ordinances as incidental and usually incidental to a particular primary use. Much of the debate on Monday focused on this definition, and particularly on whether the days a vacation home is vacant count toward its primary use for purposes of determining whether its use as a short-term rental is secondary and therefore incidental.

“They did not count the vacant days on their tax returns. They cannot ignore the vacant days on their tax returns and then ask the city to count the vacant days for zoning purposes,” Cook said.

Cook also pointed out that counting vacant days for residential use would classify all STRs, including those used only as STRs and never occupied by the homeowners, as accessory and thus protected by the city’s zoning code.

“You could have an exclusive STR that is rented for three months a year and vacant for nine months, and under Grapes’ argument that would still be an accessory use,” she said.

McLaughlin countered that vacant days should be counted toward the primary use because case law suggests that all days a property is “used or utilized” toward the primary use should be taken into account.

“It was there to be used,” he emphasized. “The 275 days (per year) that the property was vacant would be used for its primary use, namely the Grapes holiday home.”

Pickering-Cook and a Zoning Board member pointed out that the house was available for rent when it was vacant.

“It seems to me that if there is no calendar, the vacant days are for the owner, or for the short-term tenant,” said Zoning Board member Joseph Marcklinger. “A calendar does not say: reserved for owners.”

“They’re not actively trying to rent it out,” McLaughlin replied. “It’s their decision, but not in writing.” He also noted that even if the house was listed as available, the Grapes could always choose not to rent it if someone tried to reserve it.

The ZBA decision in the remanded case could impact other local short-term rentals because it sets a precedent for determining the definition of accessory use, potentially impacting the island’s economy — though attorneys for both parties and of the city emphasize that the ZBA must decide the case. specific details of the Ward case and does not issue a general rule for the island as a whole. There are hundreds of STRs on the island, many of which are not primarily occupied by homeowners, and all of which could be affected by the ZBA’s ruling.

The town chose not to appeal the Land Court’s decision because the Select Board believed the issue was best addressed through legislation. However, voters at the City Council meeting rejected Island Attorney Steve Cohen’s proposed zoning ordinance amendment, which would have protected STRs as permitted uses in all residential areas. That means the earliest legislation to protect or further restrict STRs could be considered is during this fall’s special town meeting. Until a zoning amendment is adopted, the remanded case carries enormous weight because the ZBA’s decision could functionally act as a temporary governing rule for STRs on the island, even though the ZBA is not a legislative body, pending other lawsuits already pending. before the ZBA.

Ward initially filed the case against the Grapes, claiming that the “constant” turnover of tenants and the associated noise and light pollution forced her to significantly change the way she used her home and disrupted her life. McLaughlin returned to this several times during the hearing.

‘We’re here because Ward had some complaints about light and air. Well, she has no complaints about light and air when the house is empty,” he said. “It’s dead quiet.”

The case has been closely watched by city officials, the island’s real estate community, short-term rental operators and ACK Now, the political action group that has spent the past three years trying to impose restrictions on short-term rentals in Nantucket. Ward, who serves on ACK Now’s advisory board, is supported in her legal efforts by the political action group, and her attorney, Pickering Cook, also represents ACK Now.

The hearing also culminated in a broad debate about the relative importance, history and impact of STRs on the island. Several sponsors of the current and previous proposed changes to the STR bylaws, including attorney Steve Cohen and activist Charity Benz, spoke on the issue. The Select Board is currently working with sponsors of STR articles for this fall’s special town meeting to reach an agreement and create a joint proposal that can be presented to voters.