Attorney Says He Can Win Agains Pharma Conway Daily Sun
OSSIPEE — A Carroll County Superior Court judge ruled against the town of Conway in a lawsuit the boondocks brought against short-term rental possessor Scott Kudrick.
The boondocks's chaser, Russ Hilliard of Upton & Hatfield LLP, argued in November that non-possessor occupied STRs are prohibited in residential zones due to their existence a commercial utilize.
Lawyers representing Scott Kudrick — Mark H. Puffer of Preti Flaherty Law of Concur and Matthew R. Johnson of Devine Millimet Police of Manchester — say short-term rentals are residential uses.
Approximate Amy Ignatius' ruling contradicts the town and means that non-owner-occupied brusk-term rentals can persist in Conway in all residential areas.
Kudrick is a short-term rental owner with four units in 3 properties, two single family unit homes and a duplex.
During a November hearing, "Boondocks of Conway v Scott Kudrick" was earlier Ignatius for a hearing on awaiting motions. The hearing took place remotely on Webex.
Ignatius issued her 11-page ruling against Conway on Tuesday. Manifestly, she found Kudrick's arguments persuasive.
"Short-term rentals fit within the Conway Ordinance's definition of residential/domicile unit and thus, need not exist possessor occupied in residential districts," said Ignatius. "Considering short-term rentals are residential/dwelling units that need not be owner-occupied, the defendant is entitled to judgment as a affair of law."
Concluding April, voters rejected warrant articles put frontward past selectmen that would have allowed brusk-term rentals anywhere single-family unit homes are permitted in town.
Voters did, yet, pass an article allowing the town to regulate and license such rentals.
Following the vote, the boondocks filed a petition for a declaratory judgment naming Kudrick, request the courts to decide the legality of not-owner-occupied STRs in Conway'southward residential areas.
The Mount Washington Valley Clan For Responsible Vacation Rentals released a statement saying it is "very excited with the judge's ruling.
"It was decisive and a consummate vindication for our position. Estimate Ignatius made some very of import statements in her ruling. Outset, that holiday rentals are a residential use, regardless of duration. Secondly, the NH Legislature needs to solve this problem for the towns by defining them as residential. Today we (association members) and over 30 individuals spoke at the N.H. Senate's Commerce Committee on SB 249.
"The bill had overwhelming support among those nowadays. The senators confirmed that STRs are residential utilize and should be immune in all residential zones. But, the towns had the correct to regulate, register and charge a reasonable fee. All in all this has been a bye for private belongings rights in N.H."
Kudrick'due south lawyers persisted in arguments they accept made for months that because Kudrick'south units take kitchens, they are non under the town'southward owner-occupancy requirement that applies to entities similar bed and breakfasts.
Instead, Kudrick's units should be classified as residential dwelling house units because they friction match the definition in the ordinance as they provide "complete and independent living for ane or more persons living as a household, including provisions for living sleeping, eating, cooking, and sanitation."
The Conway zoning ordinance doesn't accept a time frame for how long someone must reside in a unit of measurement for it to be residential and says nothing virtually units like Kudrick's needing to exist possessor occupied, said Johnson adding there are a couple narrow prohibitions on brusque-term rentals not applicable to the case.
"Ultimately, the boondocks of Conway is trying to enforce a zoning ordinance that they want to accept in place, not the one that'southward actually in identify," said Johnson. "They need to be bound by the plain language of the zoning words apparently language, the zoning ordinance dictates Mr. Kudrick and other similarly situated individuals should take the ability to engage in short term rentals."
Hilliard, the town's lawyer, said these STRs are run like hotels with bank check in and check out times far less than long-term rental by anyone's definition every bit Kudrick charges on a daily charge per unit footing. Hilliard said some hotels have kitchens in their units.
"I'm going to suggest to the court what these are, essentially are hotels or motels, divided up into individual units sprinkled effectually boondocks," said Hilliard adding the town believes STRs demand to be possessor occupied to be in residential areas.
"If that's not the case, any trust whatsoever privately held company a publicly held visitor, a Residence Inn, a Marriott, an Extended Stay of America could purchase all the homes on a residential street in the boondocks of Conway, and rent them to visitors and guests for the dark and claim to exist residential/dwelling units and that simply cannot exist a proper reading of the Conway Zoning Ordinance."
He too said that hotels with kitchens in their suites shouldn't be allowed in the residential zones.
"We simply cannot have an interpretation that would permit a Residence Inn to actually build a building with a bunch of rooms and say that they're dwelling residential/dwelling units, because they take cooking facilities in them and build it in the middle of a residential zone," Hilliard said.
Johnson likewise said that if the town'due south interpretation was taken to its "logical extreme" long term renting would besides be prohibited.
At the end of the Nov hearing, Ignatius said she would issue a written society, which she did Tuesday. She said there ought to be a state-wide policy on how STRs are defined rather than dealing with this town by town.
She reiterated that sentiment in her lodge. She said the full general public wants to know if STRs are legal in New Hampshire or non.
"The answer is 'it depends' based on the specific language of each municipality's ordinance, she said. "It is a question that cries out for legislative direction, based on state wide policies promoting commerce, competition, regulatory control and municipal oversight."
Source: https://www.laconiadailysun.com/news/state/judge-rules-against-conway-in-str-case/article_13e89163-8a28-51ae-8b27-e1d3c92cb4e6.html
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