Town of Conway v. Kudrick

175 N.H. 714

301 A.3d 823

TOWN OF CONWAY v. Scott KUDRICK

No. 2022-0098

Supreme Court of New Hampshire.

Argued: November 15, 2022

Opinion Issued: May 2, 2023

Upton & Hatfield, LLP, of Portsmouth ( Russell F. Hilliard on the brief and orally), and Hastings Law Office, P.A., of Fryeburg, Maine ( Jason B. Dennis on the brief), for the plaintiff.

Devine Millimet & Branch, P.A., of Manchester ( Matthew R. Johnson and Solal Wanstok on the brief, and Matthew R. Johnson orally), for the defendant.

New Hampshire Municipal Association, of Concord ( Stephen C. Buckley on the joint brief), and Black Lion Services, PLLC, of East Kingston ( Timothy J. Corwin on the joint brief), for New Hampshire Municipal Association and New Hampshire Planners Association, as amici curiae.

Robinson & Cole LLP, of Boston, Massachusetts ( Danielle Andrews Long and Timothy C. Twardowski on the brief), for New Hampshire Association of Realtors, as amicus curiae.

DONOVAN, J.

The plaintiff, the Town of Conway (Town), appeals a decision of the Superior Court ( Ignatius, J.) granting the motion of the defendant, Scott Kudrick, for judgment on the pleadings. The court ruled that the Conway Zoning Ordinance (2013) (hereinafter, "CZO") permits a non-owner-occupied short-term rental (STR) in the Town's residential districts because such use of a property falls within the CZO's definition of a "residential/dwelling unit." The Town argues that the court erroneously interpreted the CZO to allow non-owner-occupied STRs in residential districts. We conclude that the trial court correctly interpreted the CZO and hold that the CZO permits non-owner-occupied STRs in the Town's residential districts.

I. Facts

The following facts are agreed upon by the parties or are otherwise supported by the record. The defendant owns several properties in the Town. He does not occupy these properties but, rather, rents them on a short-term basis for as brief a period as a single night through online platforms such as Airbnb. The defendant's properties are located in the Town's residential districts. The parties do not dispute that each property contains provisions for living, sleeping, eating, cooking, and sanitation.

In 1980, the Town adopted the CZO, which was last amended in 2013. Both parties agree that "[o]ver the years, numerous properties within the Town have been rented for holiday and vacation purposes by the owners to third parties." The Town alleges, however, that the recent proliferation of STRs, which it attributes, in part, to platforms like Airbnb, has negatively impacted residential neighborhoods where many rentals are located. To address these concerns, the Town established a committee in 2019 that recommended amendments to the CZO which were intended to address STRs. At the annual town meeting in 2021, voters rejected the proposed amendments. The Town thereafter notified the owners and operators of STRs in residential districts that, in its view, "such activity is not permitted by the CZO, and should be terminated."

In June 2021, the Town sought a declaratory judgment ruling in superior court that the CZO prohibits STRs in residential districts that are not owner-occupied. The defendant moved for judgment on the pleadings. In response, the Town filed a cross-motion for judgment on the pleadings. In November 2021, the court held a hearing and granted the defendant's motion. This appeal followed.

II. Analysis

This appeal presents a single issue: whether the CZO permits non-owner-occupied STRs in residential districts. Resolving this issue, in turn, requires that we interpret the CZO and determine whether a non-occupying-owner's sole use of a property as a STR falls within the CZO's definition of a "residential/dwelling unit." See CZO § 190-31 (capitalization of definition terms omitted throughout opinion). The interpretation of an ordinance presents a question of law, and requires us to determine the intent of the enacting body. Working Stiff Partners v. City of Portsmouth, 172 N.H. 611, 615, 232 A.3d 379 (2019). We use the traditional rules of statutory construction when interpreting zoning ordinances. Id. We construe the words and phrases of an ordinance according to the common and approved usage of the language, but when the ordinance defines the terms in issue, those definitions will govern. Id. at 615-16, 232 A.3d 379. Furthermore, we determine the meaning of a zoning ordinance from its construction as a whole, not by construing isolated words or phrases. Id. at 616, 232 A.3d 379. When the language of an ordinance is plain and unambiguous, we need not look beyond the ordinance itself for further indications of legislative intent. Id.

We begin our analysis by setting forth the relevant provisions of the CZO. The CZO defines a "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." CZO § 190-31 (emphasis added). Notably, the CZO does not define "living as a household" or "household." See id. The CZO also defines several other types of accommodations, including lodging houses, boardinghouses, tourist homes, and rooming houses. Id. It defines an "owner-occupied lodging house and/or owner-occupied boardinghouse" as:

Any place consisting of a room or group of rooms located on one premises where regular, nontransient-type accommodations for sleeping or living purposes, together with meals, are offered for compensation, provided that the same is occupied and operated conjunctively by the owner, an individual person or persons, and shall not have more than four double-occupancy sleeping units.

Id. The CZO provides a similar definition for an "owner-occupied tourist home and/or owner-occupied rooming house":

Any place consisting of a room or a group of rooms located on one premises where transient or semi-transient accommodations for sleeping or living purposes are offered for compensation, provided that the same is occupied and operated conjunctively by the owner, an individual person or persons, and shall not have more than four double-occupancy sleeping units.

Id.

The CZO is a permissive ordinance, meaning "if a use is not identified as a permitted use or a use permitted by special exception in a zoning district, then the use is not permitted in that zoning district." CZO § 190-5. The CZO zones districts for either residential or commercial uses. CZO § 190 Attachment 2. There are four different types of residential districts, all of which permit residential units without an express owner-occupancy requirement. CZO § 190-31; CZO § 190 Attachment 2:4. In contrast, lodging houses, boardinghouses, tourist homes, and rooming houses are only permitted in residential districts if they are owner-occupied. CZO § 190 Attachment 2:2-5. As a result, a non-owner-occupied STR must satisfy the definition of "residential/dwelling unit" to be permitted in a residential zone.

Generally, the first step in determining how to apply a permissive ordinance is to look at the list of primary uses permitted in a given district established by the ordinance. Working Stiff Partners, 172 N.H. at 616, 232 A.3d 379. Although both parties agree with this premise, they disagree with how it affects the permissibility of STRs in residential districts. The Town argues that nothing in the CZO permits non-owner-occupied STRs in residential districts. The defendant counters that STRs fall within the definition of a "residential/dwelling unit" and are therefore permitted in residential districts. We agree with the defendant and conclude that the plain meaning of "residential/dwelling unit" as defined in the CZO includes non-owner-occupied properties used as STRs.

In its order, the trial court focused on whether the defendant's properties qualified as "residential/dwelling unit[s]" under the CZO's definition. Given that the Town did not dispute that the defendant's properties include "provisions for living, sleeping, eating, cooking, and sanitation," CZO § 190-31, the court concluded that "[t]o resolve the parties’ dispute, the court must determine the meaning of the phrase ‘living as a household.’ " Because the CZO does not define the phrase "living as a household," the court considered dictionary definitions of the phrase and concluded that "living as a household" means "the state of living in a social unit or group of people together in the same dwelling place." Relying upon case law from other jurisdictions, the trial court further concluded that the phrase "living as a household" as used in the CZO "does not relate to who is using the property or for how long they choose to do so, but rather requires the nature of the use to be residential and not commercial." Applying this definition of "living as a household," the trial court ruled that the defendant's properties fell within the CZO's definition of "residential/dwelling unit."

The trial court also addressed Working Stiff Partners v. City of Portsmouth, 172 N.H. at 614-15, 232 A.3d 379, where we considered a similar issue pertaining to STRs in Portsmouth. The court explained that the Portsmouth Zoning Ordinance's (PZO) definition of "dwelling unit" expressly excluded "transient occupancies" but also failed to define "transient occupancies" or "transient." See id. at 617, 620, 232 A.3d 379. In quoting Working Stiff Partners, the trial court noted that we looked to dictionary definitions of "transient" and concluded that the "definitions suggest that short or brief stays at the property constitute ‘transient occupancies,’ and further suggest that, insofar as the plaintiff is using the property for rentals as short as one day, the plaintiff is not using the property as a ‘dwelling unit.’ " Id. at 617, 232 A.3d 379 (quotations omitted). The trial court distinguished the case at hand from Working Stiff Partners because the CZO defines the term "transient...