conway selectmen tom holmes

Town Manager Tom Holmes speaks at the Conway selectmen's meeting in August. (DAYMOND STEER PHOTO)

CONWAY — Lawyers for the town of Conway abandoned their request for class certification in a lawsuit they had previously aimed at hundreds of short-term rental owners in town.

The town manager said they did so to move the case along faster.

The town says the STRs are prohibited in residential zones due to their absence as an allowable use in the town's zoning ordinance.

In April, voters rejected warrant articles put forward by selectmen that would allow short-term rentals anywhere single-family homes are permitted in town.

They did, however, pass an article allowing the town to regulate and license such rentals.

Following the vote, the town filed a petition for a declaratory judgment asking the courts to decide the legality of non-owner-occupied STRs in Conway's residential areas.

The case is called "Town of Conway v. Scott Kudrick, individually and as a Representative of a Class of Similarly Situated Defendants." It was filed June 7 and says the class of STR owners includes more than 500 members.

Kudrick and a group of fellow STR owners are being represented by Mark H. Puffer of Preti Flaherty Law of Concord and Matthew R. Johnson of Devine Millimet Law of Manchester.

The town is represented by Peter Malia of Hastings Malia of Fryeburg, Maine, and Russ Hilliard of Upton & Hatfield LLP. They filed a simple one-sentence motion to "withdraw its motion to certify class action" on Tuesday.

Judge Amy Ignatius granted the motion Wednesday.

The Sun on Thursday asked Town Manager Tom Holmes to explain why the town dropped its class action request.

He responded in a brief email.

"Both sides have filed motions for judgment on the pleadings, and the court has scheduled those motions for oral argument on Nov. 24," said Holmes. "As a result, we expect an expeditious resolution, and we did not want to get bogged down in class certification issues. "

Kudrick's attorneys have objected to class certification and say the issue is the interpretation of the town's zoning ordinance so a class is unnecessary and is counterproductive because each owner would have unique defenses and sorting them out would be expensive.

As filed in June, the town's petition sought:

• An order certifying the defendant class as including all owners and operators of the properties used for short-term rentals within the town’s residential zoning districts that are not owner-occupied, and providing for appropriate notice to class members.

• A declaration that the Conway Zoning Ordinance does not permit short-term rentals in the residential districts that are not owner-occupied.

The town's argument is the ordinance is "permissive," meaning it describes property uses that are permitted or permitted by special exception and short-term rentals isn't one of them.

The gist of Kudrick's argument is that renting a property for a short time doesn’t make it a commercial use that requires owner occupancy. That owner-occupancy requirement should apply only to entities like bed and breakfasts that don’t have kitchens in each dwelling unit but STRs do have kitchens, court filings say.

The Sun sought additional comment from MWV Association for Responsible Vacation Rentals David Cavanaugh, a group that's helping to defend STR owners.

"The Association has believed from the beginning that a request for class action certification from the Town of Conway, was legally unnecessary in this case," said Cavanaugh Thursday. "Every short-term rental in Conway is different: some are large upscale homes, rural lake and waterfront cabins, seasonal rentals, and ski condos at Cranmore. A blanket decision to call them all 'Tourist Homes' or Commercial is a stretch."

A hearing on pending motions had been scheduled for Oct. 4, but it was moved to Nov. 24.

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