04-07-21 Scott Kudrick front

Scott Kudrick stands in front of the 1785 Inn in North Conway, which he owns. He is identified as a short-term rental operator in “Town of Conway v. Scott Kudrick, individually and as a Representative of a Class of Similarly Situated Defendants.” (RACHEL SHARPLES PHOTO)

CONWAY — New court documents filed by the town of Conway rebut arguments made by the attorneys of the Conway man whom the town is suing as the face of a class of 500 short-term rental owners.

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."

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 argument for the defense rests on whether rental properties have kitchens, as other lodgings mentioned in the Conway zoning ordinance, such as "boardinghouses" or "tourist homes" do not provide cooking facilities as part of their accommodations.

The attorneys argued in their "Motion for Judgment on the Pleadings and Request for Hearing" dated Sept. 3 that under Conway zoning laws, residential homes that do have kitchens don't have to be owner-occupied.

On Sept. 10, attorneys representing the town replied with an "Objection to the Motion for Judgment on the Pleadings" and "Cross-motion for Judgment on the Pleadings."

The town is represented by Peter Malia of Hastings Malia of Fryeburg, Maine, and Russ Hilliard of Upton & Hatfield LLP.

The town is looking for judgment based on the pleadings and argues that because short-term rentals are a commercial use they are not permitted in the town's four residential zones; Center Conway Village Residential, Conway Village Residential, North Conway Village residential and Agricultural/Residential.

The town's lawyers point to the town's zoning ordinance use table.

"As may be seen (in the above zones), the only permitted uses are residential (single-family, two family and multifamily) and facilities rented to others that are occupied by the owner; hotels, motels and other facilities not occupied by the owner are not included in the table as permitted uses, and therefore are prohibited," the town's lawyers wrote in the cross-motion. 

They go on to say that under the ordinance, residential dwelling units provide facilities for one or more people living as a household and have provisions for living, sleeping, eating, cooking and sanitation. 

"Accordingly, place(s) of temporary sojourn or transient visit such as those operated by the defendant Kudrick do not qualify as a residence," said the town's lawyers in their cross-motion, citing a New Hampshire Supreme Court case, Town of Barrington v Townsend. 

The town's attorneys also drew on a 2019 New Hampshire Supreme Court case called Working Stiff Partners LLC v City of Portsmouth to support their argument.

In that case, which also pertained to short-term rentals, the town's lawyers said the high court differentiated between transient occupants and households. 

In August, Puffer noted: "The City of Portsmouth prevailed in that case because its ordinance definition of 'dwelling unit' expressly excluded 'transient occupancies,'" Puffer said, adding Conway's zoning ordinance doesn't exclude short-term rentals that have kitchens.

Another difference between the Portsmouth case and the Conway case, he said is the Portsmouth case was a zoning appeal whereas the Conway case is a petition for declaratory judgment.

Malia and Hilliard said: "As observed by the Supreme Court, the unifying feature that these 'occupancies' share is the provision of short-term lodging accommodations to paying guests for as little as one day.

"Under the defendant's interpretation, even facilities that look and operate for all purposes like hotels or motels could be considered dwelling units, and therefore permissible in residential districts," they added.

The town's latest motion said Kudrick's attorneys' latest motion "fails to analyze and interpret the relevant provisions of the Conway Zoning Ordinance consistently with recent Supreme Court jurisprudence regarding this very issue, and accordingly, arrives at an incorrect conclusion as to the standing of short-term rentals that are not owner-occupied.

It accused Kudrick of denying owning and operating short-term rentals within the town, "but now in his motion for judgment ... only partially concedes this." Thus, they asked Town Manager Tom Holmes to sign an affidavit that Kudrick does, in fact, own short-term rental properties.

The affidavit was attached, saying Kudrick, "through various trusts," of rental units at 180 Intervale Cross Road, and 92 and 94 Seavey St."

Kudrick's answer, filed in July, also said: “Scott Kudrick is not an appropriate representative for every person who owns and rents residential property in Conway on a ‘short-term’ basis.

It continued: "Not only does the town of Conway zoning ordinance not have a general definition of what constitutes an STR, but also there are many owners of residential rental properties in Conway whose situations are fundamentally different than that of Scott Kudrick."

A hearing on pending motions is scheduled for Oct. 4 at 10 a.m. in Carroll County Superior Court. 

Recommended for you

(1) comment

JulianThomas

Although I lean heavily on the str side, this was a pretty good piece of journalism. Unbiased, told the news on both sides. Well done.

Welcome to the discussion.

Keep it Clean. Please avoid obscene, vulgar, lewd, racist or sexually-oriented language.
PLEASE TURN OFF YOUR CAPS LOCK.
Don't Threaten. Threats of harming another person will not be tolerated.
Be Truthful. Don't knowingly lie about anyone or anything.
Be Nice. No racism, sexism or any sort of -ism that is degrading to another person.
Be Proactive. Use the 'Report' link on each comment to let us know of abusive posts.
Share with Us. We'd love to hear eyewitness accounts, the history behind an article.