301 A.3d 823
N.H.2023Background
- Defendant Scott Kudrick owns multiple properties in Conway that he rents on a short-term basis (as briefly as one night) through platforms like Airbnb; the properties are in residential districts and contain living, sleeping, eating, cooking, and sanitation facilities.
- Conway Zoning Ordinance (CZO) defines “residential/dwelling unit” as a single unit providing complete and independent living facilities "for one or more persons living as a household, including provisions for living, sleeping, eating, cooking, and sanitation."
- The CZO permits residential/dwelling units in residential districts without an owner-occupancy requirement, but lodging/boarding/tourist/rooming houses are permitted in residential districts only if owner-occupied.
- Town voters rejected proposed 2021 CZO amendments aimed at short-term rentals (STRs); the Town then sought enforcement, contending non-owner-occupied STRs are not permitted.
- Superior Court granted Kudrick’s motion for judgment on the pleadings; the Supreme Court affirmed, holding the CZO’s definition of "residential/dwelling unit" covers non-owner-occupied STRs where occupants engage in residential activities.
Issues
| Issue | Town's Argument | Kudrick's Argument | Held |
|---|---|---|---|
| Whether non-owner-occupied STRs are permitted in residential districts under the CZO | "Living as a household" requires stability/duration; non-owner-occupied STRs are effectively commercial and thus not a permitted residential use | STRs meet the CZO definition of residential/dwelling unit because units have required facilities and occupants use them for residential purposes regardless of duration | Affirmed: STRs fall within the CZO definition of residential/dwelling unit and are permitted in residential districts |
| Meaning of "living as a household" in CZO § 190-31 | Imposes a relational and durational component (permanency/stability) | No temporal requirement; phrase describes residential nature of use, not duration or owner identity | The phrase refers to people living together under one roof for residential purposes, without a durational requirement |
| Role of the term "transient" / duration | Absence of "transient" in the residential/dwelling definition implies the ordinance excludes transient (short-term) use | The ordinance could have used "transient" if it intended to exclude short stays; its absence means no durational exclusion | Court will not read a durational exclusion into the definition; the CZO does not expressly exclude transient occupancies from residential/dwelling units |
| Whether owner’s commercial intent matters for zoning classification | Owner-operated commercial rental use defeats residential classification | Use is determined by occupants’ activities; owner’s commercial motive irrelevant to whether unit is used residentially | Occupants’ residential activities control; owner’s commercial use does not convert unit out of residential use |
Key Cases Cited
- Working Stiff Partners v. City of Portsmouth, 172 N.H. 611 (N.H. 2019) (interpreting a municipal "dwelling unit" definition that expressly excluded transient occupancies)
- Blagbrough Family Realty Trust v. A&T Forest Prods., 155 N.H. 29 (N.H. 2007) (courts will not add words to an ordinance that the drafters omitted)
- Barry v. Town of Amherst, 121 N.H. 335 (N.H. 1981) (absence of language in one provision that appears in another indicates deliberate omission)
- Barton v. H.D. Riders Motorcycle Club, 131 N.H. 60 (N.H. 1988) (municipal ordinances must be sufficiently clear to give fair notice)
- Styller v. Zoning Bd. of Appeals of Lynnfield, 169 N.E.3d 160 (Mass. 2021) ("family"/"household" definitions can incorporate permanency)
- Lowden v. Bosley, 909 A.2d 261 (Md. 2006) (residential use focuses on occupants’ living activities; temporary nature does not necessarily defeat residential status)