JohnCarl McGrady •
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The Zoning Board of Appeals (ZBA) on Thursday considered a draft decision in favor of Peter and Linda Grape in the contentious remand hearing following Cathy Ward’s lawsuit against the family over the use of their West Dover Street property as a short-term rental (STR) property on Thursday.
While the final vote was postponed to a special remote meeting on Aug. 29, the board expressed support for the resolution drafted by City Attorney George Pucci that would allow the Grape family to continue to rent their property on a short-term basis, requiring only a few minor changes. Formal approval of the draft resolution, expected at the Aug. 29 hearing, would almost certainly trigger another appeal.
“You did a great job on this decision,” ZBA Chair Susan McCarthy told Pucci. “When I read through it, I was very confident that there wouldn’t be much to change.”
Thursday’s hearing was the result of a decision by Massachusetts District Court Judge Michael Vhay in March, when he ruled against the ZBA, finding that the city’s zoning ordinance does not allow short-term rentals as the primary use of a primary residence. Judge Vhay reversed the ZBA’s previous decision in the Ward case and remanded the matter for further review – leaving hundreds of short-term rental properties in legal limbo.
“The Board recognizes the need to protect the character of densely built-up residential areas such as the neighborhood involved in the Ward case, but is also aware of the need to interpret the provisions of the Nantucket Zoning Bylaw consistent with what is considered customary use, which is specific to Nantucket as a seasonal resort community,” the draft decision states. “The Board finds…that short-term rentals are customarily incidental to the actual primary residential use…the Board further finds that the manner in which the Grapes are short-term renting the main house on the property is consistent with this definition and that their short-term rentals are considered customarily incidental to the actual primary residential use.”
The ZBA members at the hearing on Thursday. Click on the photo to watch the recording of the meeting.
In addition to a motion to remove the term “short-term rental” from the draft decision, the use of which ZBA member Jim Mondani said had become prejudicial, Thursday’s discussion focused on a paragraph in the decision addressing how the ZBA should count vacancy days when determining whether short-term rental use is an ancillary business.
“The Board declines to follow a simple mathematical equation on this issue,” the draft decision states. “The Board can envision many hypothetical cases in which the vacancy days factor could be stretched beyond reasonable interpretation, such as an investor-owned property that is rented for 155 days and vacant for 200 days, but no such scenario is presented here.”
While ZBA members agreed that they were not following a mathematical equation, they asked Pucci to remove any reference to a hypothetical scenario in which they might have decided differently.
“If you want to put a strict limit on the number of days, there is another case where that doesn’t make sense and would be detrimental to the homeowner. So maybe we don’t need to go into detail,” McCarthy said. “For me personally, (vacancy days) is one factor among many factors.”
“The Committee concludes that the Grapes’ short-term rentals are subordinate to their actual primary residential use,” the decision continues. “The factors relevant to this determination are: the Grapes’ strong ties to Nantucket and the property at issue; their regular personal use of the property as a vacation home for actual residential use, including occupation of both the main house and the garage house and year-round use and occupancy of the property; that they sometimes occupy the garage house while the main house is on a short-term rental; that they did not acquire the property as an investment property to maximize the amount they earn from the rentals; that they use the income from the short-term rentals to upkeep, maintain and improve the property; and that they consider vacancy periods to be times when the property is available for their own personal use at their discretion.”
Plaintiff Cathy Ward (left) testifies before Massachusetts Land Court Judge Michael Vhay in Nantucket Superior Court in December 2023. Photo: Jason Graziadei
A similar draft ruling in a pretrial detention hearing based on a lawsuit filed by Christopher Quick and seeking to protect another family’s right to rent their property on a short-term basis also received support from the panel.
The ZBA’s decisions on the remanded cases could impact other short-term rentals on Nantucket by setting a precedent for STRs in residential areas. There are hundreds, if not more than 1,000 active short-term rental properties on the island, many of which are not primarily occupied by the homeowners. All of them could be affected by the ZBA’s decision.
The case has been closely watched by town officials, the island’s real estate industry, short-term rental operators and ACK•Now, the political action group that has been advocating for short-term rental restrictions on Nantucket for the past three years. Ward, who sits on ACK•Now’s advisory board, has been supported by the political action group in her legal battle, and her attorney, Nina Pickering Cook, is also representing ACK•Now.
