In a case of significant interest to the legal community and especially to Nantucket property owners, the Land Court recently issued its long-awaited decision in Ward v. Town of Nantucket (pdf) (Ward II), concerning the application of the Town of Nantucket’s zoning bylaw (the Bylaw) to short-term rentals (STRs).

The defendant homeowners had been renting their property for STRs, defined as rentals of less than 31 days, since 2017. The plaintiff, their neighbor, challenged the legality of these rentals under the Bylaw.

The Land Court ruled that the Bylaw doesn’t permit STRs of a ”primary dwelling” in the Residential Old Historic zoning district, except for the rental of rooms within an owner-occupied dwelling unit. The decision vacated a 2024 remand decision of the Nantucket Zoning Board of Appeals (ZBA), which concluded that STRs of a primary dwelling were a permissible accessory use under the Bylaw. The remand decision followed an earlier ruling by the same judge (Ward I) holding that STRs are not an allowed principal use of a “primary dwelling.” The Land Court noted in Ward I that STRs may be a permitted accessory use, but remanded the case to the ZBA to consider that question in the first instance.

Neither party appealed the judgment in Ward I, and the ZBA held further public hearings consistent with the Land Court’s order. On remand, the ZBA concluded that the defendants’ STRs of the primary dwelling were “a permissible accessory use under the Nantucket Zoning Bylaw,” that the STRs were “subordinate to the as-of-right residential use of their primary dwelling,” and that the STRs “are customarily incidental to as-of-right residential use of a primary dwelling in the subject district.” The ZBA found that the defendants (1) have strong ties to Nantucket and the property in question, (2) use the property as a vacation home, (3) use and occupy the property year-round, (4) did not purchase the property as an investment property, (5) use rental monies for maintenance and improvements to the property, and (6) treat periods of vacancy as periods when the property is available for their own personal use.

The plaintiff appealed the ZBA’s remand decision, and the Land Court again overturned the ZBA. The Land Court applied the accessory use test set forth in the 1971 Supreme Judicial Court (SJC) case Town of Harvard v. Maxant, 360 Mass. 432 (1971), and analyzed the phrases “subordinate to, and customarily incidental to,” found in the Nantucket Bylaw. The SJC in Maxant characterized the following excerpts from Lawrence v. Zoning Bd. of Appeals of North Branford, 158 Conn. 509 (1969), as a “helpful discussion of the meaning of the words ‘subordinate and customarily incidental’ in a zoning by-law provision for accessory uses . . . .”

The word “incidental” . . . incorporates two concepts. It means that the use must not be the primary use of the property but rather one which is subordinate and minor in significance. Indeed, we find the word “subordinate” included in the definition in the ordinance under consideration. But “incidental,” when used to define an accessory use, must also incorporate the concept of reasonable relationship with the primary use. It is not enough that the use be subordinate; it must also be attendant or concomitant. To ignore this latter aspect of “incidental” would be to permit any use which is not primary, no matter how unrelated it is to the primary use.

The word “customarily” is even more difficult to apply. Although it is used in this and many other ordinances as a modifier of “incidental,” it should be applied as a separate and distinct test. Courts have often held that use of the word “customarily” places a duty on the board or court to determine whether it is usual to maintain the use in question in connection with the primary use of the land. . . . In examining the use in question, it is not enough to determine that it is incidental in the two meanings of that word as discussed above. The use must be further scrutinized to determine whether it has commonly, habitually and by long practice been established as reasonably associated with the primary use . . . .

In applying the test of custom, we feel that some of the factors which should be taken into consideration are the size of the lot in question, the nature of the primary use, the use made of the adjacent lots by neighbors and the economic structure of the area. As for the actual incidence of similar uses on other properties, geographical differences should be taken into account, and the use should be more than unique or rare, even though it is not necessarily found on a majority of similarly situated properties.

Maxant, 360 Mass. at 438.

The Land Court concluded that the defendants’ use of their property for STRs is “subordinate” to the principal use of their property, and that seasonal rentals of Nantucket residences have become “customary” within the meaning of Maxant since the 1970s. However, the defendants were not so lucky when it came to the last part of the Maxant test, as the Land Court held that the defendants’ STR use is not “incidental” to their primary residential use because they make no use of the primary dwelling when renting it, and because the only connection between the defendants’ primary use and the STR use is financial. The court concluded, “[t]hat the primary user of the property profits from a claimed accessory use is insufficient, standing alone, to make that use ’incidental’ to the primary use.”

Thus, the Land Court ruled that “the current Nantucket Zoning Bylaw does not allow rentals shorter than 31 days of ‘primary dwellings’ in the Nantucket Residential Old Historic district, except for ‘the rental of rooms within an owner-occupied dwelling unit.’” This ruling will be the law going forward, absent a successful appeal by the homeowner defendants or the Town.

Ward II underscores the complexity of zoning laws as they pertain to STRs, a growing use in many communities. The decision highlights the importance of understanding the specific language of local zoning bylaws and reflects broader legal trends, as courts increasingly scrutinize the impact of STRs on residential neighborhoods. This case serves as a reminder that property owners must carefully navigate zoning regulations and consider the potential legal challenges associated with STR activities.

While Nantucket could amend its Bylaw to address the STR issue, over the past five years Town Meeting has considered changes to codify STRs on at least seven occasions and, each time, voters rejected those proposed changes. The latest such occasion was during the Town Meeting in May, 2025, where a warrant article obtained majority support but did not reach the two-thirds supermajority threshold for passage. Now that the Ward II decision has issued, instead of the Town establishing its own policy on STRs, the Land Court has done it for them.