OSSIPEE — A Carroll County Superior Court judge recently heard arguments from short-term rental owners hoping the court will overturn the Kearsarge Lighting Precinct’s enforcement of zoning rules against them.
Christopher and Kelly Andrews of Melrose, Mass., originally filed their lawsuit against the KLP — which includes portions of Conway and Bartlett — in April of 2018.
Fast-forward to April 27. At the hearing on the lawsuit's merits in front of Superior Court Judge Amy Ignatius, the Andrews were represented by attorney John Cronin of Cronin, Bisson & Zalinsky PC of Manchester.
The KLP zoning board was represented by Demetrio Aspiras III of Drummond Woodsum of Manchester. KLP commissioners, who are intervenors, were represented by Peter Malia of Hastings Malia of Fryeburg, Maine.
The hearing was conducted by WebEx video conferencing and lasted nearly two hours.
Cronin explained that the Andrewses had sought to purchase a property they could use for vacations and also to supplement their income by renting it out. They purchased a home on Old Bartlett Road in 2011 and bought a second property on Kearsarge Road in 2013.
Cronin told the judge they never got any indication that "this type of use was somehow discouraged or prohibited. In fact, when you would get the fliers from the real estate folks, they would even show you what rental income you could expect.”
Meanwhile, an ordinance dating back to 1959 says, “All residential properties that offer sleeping accommodations to transient or permanent guests shall be owner occupied and operated.”
In November 2017, KLP commissioners issued a notice of violation against the Andrewses and a few other absentee STR owners. In February 2018, the KLP zoning board upheld the violation notice and also denied a rehearing request.
The Andrewses went to court.
According to their attorney, the 1959 rule was not enforced for 60 years. Cronin also believes the ordinance has been selectively enforced by locals against people from out of state.
Cronin said this case is not a bellwether for banning short-term rentals because it turns on what he said is an “archaic” and “ambiguous” zoning ordinance and the path that KLP officials took that led to the case before Ignatius.
“Does owner-occupied mean you have to be there 100 percent of the time, if your guest is there?” Cronin asked rhetorically. “So if I have a guest, does that mean I can't go out overnight on a hiking or camping trip?”
Cronin said he was asking the court to reverse the decision of the zoning board.
Malia, who responded to Cronin’s various points, said the commissioners took action on behalf of precinct residents.
“Several KLP residents came forward and complained to the commissioners about abutting properties being rented out on platforms like Airbnb, VRBO, short-term rentals as they're called, and the rotating cast of characters on the weekends with many cars and sometimes loud parties just disrupted the peaceful nature of the traditional KLP neighborhoods,” said Malia.
He said he believes the ordinance is clearly written.
“I think our position was the definition of owner-occupied is self evident,” said Malia. “The definition of transient is easily ascertained by resorting to the dictionaries as the (state) Supreme Court does in the recent Working Stiffs v. city of Portsmouth case.
“So it really was no mystery to us what transient meant or what owner-occupied meant, and we proceeded along those lines," Malia said.
Ignatius asked Aspiras about the process by which the decision was rendered. He replied that the zoning board simply agreed with the recommendation that their former attorney Bernie Waugh provided.
“All that matters is they met in public session and they voted,” he said.
Aspiras said this ought to be a “simple case” based on an interpretation of the KLP’s zoning ordinance. He agreed that the language in the ordinance is clear. He said it’s not overly restrictive and would not ban long-term renting.
He said the Andrewses’ homes are “clearly not owner-occupied."
Ignatius gave both parties an opportunity to file memorandums by May 17, and replies to memorandums would be due May 27.
In response to Aspiras, Ignatius, at the end of the hearing, said, “I’m not sure (the case) is so simple.”