BARTLETT — A request for declaratory relief concerning short-term rental enforcement in the Kearsarge Lighting Precinct was filed Feb. 16 in Carroll County Superior Court by Richard Park of Intervale.
He is being represented by Preti Flaherty Beliveau and Pachios, PLLP, of Portland, Maine.
Park lives on Timberline Drive in Intervale and operates a short-term rental in a duplex on Abbott Brook Road off Hurricane Mountain Road in Intervale. Both his home and rental properties are within the Kearsarge Lighting Precinct.
Park purchased the property in 2010 from then KLP Commissioner Peter Needham, now of Cape Cod. He says KLP never enforced a ban enacted in 1957 on non-owner-occupied seasonal rentals. He says he has operated the apartments for both long- and short-term rentals.
In his complaint, Park says that since the lighting precinct never created a planning board, any zoning that has existed since 1957 is not valid and therefore KLP’s zoning is unenforceable.
“This complaint raises the issue whether the KLP has validly adopted zoning; and therefore whether the KLPZO (KLP zoning ordinance), which purports to require that all residential properties that offer sleeping accommodations to transient or permanent guests must be owner-occupied and operated, is enforceable against the plaintiff and others … The KLP has never established the authority to adopt zoning because it has never established a planning board (or a zoning commission under RSA 31:60–89),” Park's suit states in part.
According to Precinct Clerk Meredith Wroblewski, after last July’s annual meeting, commissioners voted to post a warrant article for this year’s meeting to create a planning board.
The annual meeting is set for July 13 outdoors at 6:30 p.m. at Cranmore Mountain Resort.
Wroblewski said commissioners have worked with the New Hampshire Municipal Association on the planning board issue.
Prior to last year’s meeting, precinct attorney Peter Malia of Hastings Malia Law Firm of Fryeburg, Maine, advised commissioners that because the KLP never had a planning board, the legality of precinct zoning articles for the past five years (and perhaps longer) were thrown into question.
That finding rendered moot two articles on last year’s warrant: the commissioner-backed Article 3, banning non-owner-occupied short-term rentals but allowing non-owner-occupied rental of more than 60 days; and Article 4, petitioned by resident/Realtor Josh Brustin, to allow non-owner-occupied short-term rentals of under 30 days by conditional-use permit only. Rentals of 30 or more consecutive days would be allowed in the KLP under Brustin’s proposal.
Because the precinct needs a planning board before it can act on articles concerning short-term rentals, Wroblewski said there will be no zoning articles on this year’s warrant other than the article to create a planning board.
Sarah Mallett was appointed commissioner after former chair Rick Jenkinson submitted his resignation in February. Wrobewlski said Mallett is serving until the annual meeting, at which time voters can re-elect her or take nominations from the floor. Mallett serves with chair Lynn Lyman and Commissioner Joe DiFiore.
Meanwhile, a lawsuit filed against KLP regarding short-term rentals has a court date in Carroll County Superior Court of April 27.
Commissioners in October 2017 received complaints about noise at properties owned by the Gleason and Andrews families in Kearsarge and pointed to the zoning ordinance that said “all residential properties that offer sleeping accommodations to transient or permanent guests shall be owner-occupied and operated.”
Commissioners sent the Gleasons and the Andrewses violation notices. The owners appealed to the Kearsarge Zoning Board of Adjustment, which upheld the notices.
The property owners then went to Carroll County Superior Court, saying that the zoning ordinance implemented in 1957 had rarely if ever been enforced. They also raised selective enforcement and due process concerns in the suits, which were filed in 2018.
The Gleasons sold their property on Hurricane Mountain Road late last year and are no longer part of the lawsuit that is to be heard April 27, Lyman said.
The Kearsarge Lighting Precinct consists of property located in Bartlett and Conway. Lyman said commissioners are waiting to see how Conway’s vote goes down Tuesday and the outcome of the April 27 court date for a pending lawsuit against the KLP.
“Kearsarge is part of Conway, but KLP zoning is stricter than Conway’s," she said. "So if Conway’s passes but we win the court case, it would be good because that would affirm owner-occupied-only short-term rentals in Kearsarge."
For more information, go to kearsargelightingprecinct.org.