ZBA declines enforcement appeal on 32 Monomoy Road, denies appeal as moot 4-1

The Zoning Board of Appeals voted on March 13 on an appeal of the building commissioner’s decision declining to enforce zoning against a property at 32 Monomoy Road (the Copley Monomoy LLC property). After extended legal argument, public comment and statements from the building commissioner and town counsel, the board failed to secure the four-vote supermajority required to overturn the building commissioner and instead voted 4–1 to deny the appeal as moot.

The appeal, filed by neighbors and represented at the meeting by attorney Kristen Gagellas of Anderson & Krieger, asked the ZBA to overturn Building Commissioner Paul Murphy’s December 2024 determination that the property’s use did not violate the zoning bylaw. Gagellas told the board the property had been operated year-round as a short-term rental and argued that a dwelling held out for rental 365 days a year cannot be an accessory use to a residential primary use.

Attorney Robert McLaughlin, representing the owner (Copley Monomoy LLC), told the board the owner is marketing the property for sale, said it had not operated as a short-term rental in recent months, and offered to put that promise in writing with an enforcement mechanism. He urged the board to decline to hear the appeal while the related Land Court litigation is pending.

Building Commissioner Paul Murphy told the board he had declined to take enforcement action and explained his position to the board: "It's my position short term rentals are allowed, in the zoning district and, I will certainly respect whatever position the board gets to in this matter." Murphy also noted enforcement of short-term rental registration and certain penalties sits with the Board of Health under the town's short-term rental bylaw (chapter 123), which identifies the Board of Health, its agent or police officers as enforcement authorities for that bylaw.

Town counsel George Pucci (KP Law) advised the ZBA that the board should decide the appeal on the merits of the zoning question presented. Pucci noted the Land Court stayed a related case to see what the ZBA would do with this appeal, and he recommended the board either decide the appeal on substantive zoning grounds or, if members are inclined, deny it as moot — both are legally defensible options. The board considered three paths: overturn Murphy's decision, uphold it, or deny the appeal as moot.

After discussion the board took two formal votes. First, a motion to overturn the building commissioner’s decision (moved by Joe, seconded by Lisa) received three affirmative votes but failed to reach the four-vote supermajority required to reverse the building commissioner. The vote recorded on the motion to overturn was: Joe — yes; Lisa — yes; Jim — yes; Alisa — no; Susan (chair) — no. Because a supermajority is required to reverse a building inspector’s determination, the motion did not carry.

The board then voted on a motion to deny the appeal as moot (moved by Jim; seconded by Lisa). That motion passed 4–1. The clerk recorded the roll call as: Jim — aye; Lisa — aye; Alisa — aye; Joe — no; Susan — aye. Board members who supported denying the appeal as moot cited the applicant counsel’s representation that the property is not currently operating as a short-term rental and would not be so operated under that owner; members said the lack of an ongoing violation left the board without an enforcement action to direct the building commissioner to pursue.

Public comment at the hearing included neighbors and island residents who offered conflicting context: some speakers told the board the property continues to be listed for rental online and urged a substantive ruling; other speakers warned that reversing the building commissioner now could trigger many neighbor-driven complaints and litigation across the island and urged caution until town meeting or a clearer bylaw is in place. Several public commenters noted the difficulty the town has experienced passing a comprehensive short-term rental bylaw at town meeting.

What the board decided - Motion to overturn Building Commissioner Paul Murphy’s decision (mover: Joe; seconder: Lisa): vote — Joe yes; Lisa yes; Jim yes; Alisa no; Susan no. Motion failed (required supermajority of four to overturn). - Motion to deny the appeal as moot (mover: Jim; seconder: Lisa): vote — Jim aye; Lisa aye; Alisa aye; Joe no; Susan aye. Motion carried 4–1. The board issued a direction that it would not find a zoning violation on these facts because the current owner stated the property was not in active short-term rental operation and would not be so operated by that owner; the board did not adopt a ruling on the accessory-use question as a general rule.

Next steps and context Town counsel advised the ZBA that the related Land Court case (McDermott v. Zoning Board) remains pending and that the court had stayed that case pending the ZBA outcome. Town counsel recommended the ZBA consider a separate executive-session agenda item to provide guidance on how the town will proceed in the Land Court matter; the board agreed to schedule follow-up discussion on legal strategy.

The board’s ruling preserves the building commissioner’s practical enforcement stance in this instance but leaves unresolved the broader question of when short-term rental activity constitutes an accessory residential use under zoning. That issue has been the subject of separate litigation (the Ward matter) and remains unsettled in the Land Court.