OSSIPEE – A Carroll County Superior Court judge categorically rejected arguments in a lawsuit against the Kearsarge Lighting Precinct by a couple who operate a short-term rental. Judge Amy Ignatius’ Sept. 14 order marks the first time the court has ruled on short-term rentals that have been the subject of at least two other similar lawsuits, including one by the City of Conway against the STR owner Scott Kudrick.
In the town’s case against Kudrick, the town is seeking to enforce its owner-occupancy requirement for short-term rentals.
Kearsarge lighting commissioners welcomed the decision in a statement on Wednesday.
“The Kearsarge Lighting Precinct Board of Trustees and the KLP Zoning Board of Adjustment are pleased that Judge Ignatius, in his 44-page decision, firmly rejected all of the arguments raised by the Complainants and upheld KLP’s position that all Residential properties that are used as short-term rentals must be owner-occupied and operated, ”said KLP Chairman of the Commissioners Lynn Lyman.
“The KLP thanks the community for their patience throughout this process. “
Plaintiffs have 30 days to appeal to the New Hampshire Supreme Court.
According to the website of the judicial branch, no appeal had been filed Thursday morning.
Christopher and Kelly Andrews of Melrose, Mass., Initially filed their complaint against the KLP, which includes portions of Conway and Bartlett, in April 2018.
At the hearing on the merits of the case before Ignatius on April 27 this year, the Andrews were represented by John Cronin of Cronin, Bisson & Zalinsky PC of Manchester.
KLP’s zoning council was represented by Demetrio Aspiras III of Drummond Woodsum in Manchester. The panelists from KLP, who are panellists, were represented by Peter Malia from Hastings Malia in Fryeburg, Maine.
The hearing was conducted by WebEx videoconference.
Cronin said the Andrews had sought to buy a property they could use for the holidays and supplement their income by renting it out. They bought a house on Old Bartlett Road in 2011 and bought a second property on Kearsarge Road in 2013.
In November 2017, KLP commissioners issued a notice of violation against the Andrews and other absent STR owners. In February 2018, KLP’s zoning board upheld the notice of violation and also denied a request for a rehearing.
The Andrews went to court.
Cronin told the judge that they had never had any indication that “this type of use was somehow discouraged or prohibited. In fact, when you received the flyers from the real estate agents, they even showed you what rental income you could expect.
However, a 1959 ordinance states that “all residential properties that provide sleeping accommodations for passing or permanent guests must be owned and operated by their owner.” “
Malia, who responded to Cronin’s various points, said the commissioners had taken action on behalf of the residents of the compound who he said were subject to “a cast of characters rotating on weekends with many cars , and sometimes loud parties only disrupted the peaceful nature of the traditional KLP neighborhoods.
Malia said he believed the ordinance was clearly written and “no mystery” to interpret.
One of the highlights of Ignatius ‘order is its dismissal of the Andrews’ argument that their state and federal constitutional due process rights were violated because the owner’s tenure rule was ” rationally linked to no government objective ”.
The KLP argued that it was trying to foster a quiet neighborhood for residents, not passers-by.
“The court concludes that maintaining the residential character of a community is a legitimate government interest,” Ignatius said. “The court further concludes that, applied to short-term rentals, the guest provision is rationally linked to this interest, as it requires owners of short-term rental properties to reside in the property and monitor and resolve issues. that their guests can chat. “
At the hearing, Cronin said the 1959 rule had not been applied for 60 years. Cronin also believes the ordinance was selectively enforced by residents against people from out of state.
Ignatius, however, said the Andrews had failed to show that the ordinance was selectively enforced against foreigners. “The evidence that the plaintiffs presented to the ZBA appears to show a widespread failure to enforce the guest provision, and not widespread discrimination against a particular category of owners,” Ignatius said.
“The court acknowledges that the only time the BOC chose to enforce the guest provision was against four properties owned by non-residents of New Hampshire. However, the court cannot conclude that in the facts of this case this single case gives rise to an intentional discrimination inference based on residence, ”Ignatius wrote.
Later in the order, Ignatius said the plaintiffs had failed to demonstrate that KLP ever decided to waive its right to enforce the order.
Cronin said the case was not an indicator to ban short-term rentals, as it hinges on what he called an “archaic” and “ambiguous” zoning ordinance and the path taken by officials. of the KLP which led to the case before Ignatius.
“Does being owner occupied mean you have to be present 100% of the time if your guest is there? Cronin asked rhetorically. “So if I have a guest, does that mean I can’t go out at night hiking or camping?” “
Ignace wrote that even if the order is “ambiguous”, that would not prevent the KLP from trying to implement it.
Ignatius also refused to award attorney fees to the Andrews.