04-07-21 Scott Kudrick front

Scott Kudrick stands in front of the 1785 Inn, one of several short-term rentals he owns in Conway. (RACHEL SHARPLES PHOTO)

CONWAY — Attorneys for the owner of several short-term rental properties in Conway filed a new motion last week to argue that STRs don't need to be owner-occupied as the town contends.

The owner, Scott Kudrick, is being sued by the town of Conway, which says short-term rentals are not allowed in residential zones under the town's zoning ordinance.

The argument for the defense rests on whether or not the 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.

So, attorneys argued in a recent motion, residential homes that have kitchens don't have to be owner-occupied.

In April, voters rejected warrant articles that would allow short-term rentals anywhere single-family homes are permitted in town. They did, however, approve an article allowing the town to regulate and license such rentals.

Since then, 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 owns several rental properties in town.

Through its petition filed in June, the town seeks:

• 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, court filings say.

The town filed a motion to ask the judge to make this lawsuit apply to all the owners in town and estimates there may be as many as 500.

On Sept. 3, Kudrick's attorneys filed a new document called "Motion for Judgement on the Pleadings and Request for Hearing."

Mark H. Puffer of Preti Flaherty Law of Concord and Matthew R. Johnson of Devine Millimet Law of Manchester represent Kudrick.

"Under the CZO (Conway Zoning Ordinance) there are a number of uses that require owner-occupancy," said Puffer and Johnson. "'A Residential/dwelling unit' is not one of them."

The attorneys go on to explain that there are owner-occupancy requirements for boardinghouses, lodging houses, rooming houses and tourist homes. However, single-family, two-family, and multi-family homes have no owner-occupancy requirement. They add there are many homes in Conway and the State of New Hampshire that are occupied by people living as a household other than their owners.

"A 'residential/dwelling unit' differs from a 'boardinghouse' and the other nonresidential uses in two significant respects: (1) a 'residential dwelling unit' does not need to be owner-occupied; and (2) a 'residential/dwelling unit' has provisions for living, sleeping, eating, cooking, and sanitation," said the attorneys. "By definition, a 'boardinghouse' and other nonresidential uses do not have provisions or accommodations for persons residing therein to cook their own meals ... This motion seeks a declaratory ruling that, in Conway's residential districts, residential units have their own cooking or kitchen facilities and do not need to be owner-occupied."

In its petition, the town argues:

•The town zoning ordinance includes the following definition of residential/dwelling unit, permitted in residential districts: "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."

• The ordinance also permits owner-occupied tourist homes and boardinghouses in these districts:

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.

• Such definitions do not include the commercial use of renting a house for short periods of time, as this is not “living as a household,” unless it is owner-occupied.

The end of Puffer and Johnson's motion for the defense asks the court to schedule a hearing on the motion, and find and rule that in Conway's residential districts residential units that have their own kitchen/cooking facilities don't need to be owner-occupied.

Prior to their new motion being filed, a hearing on pending motions was scheduled for Oct. 4 at 10 a.m. in Superior Court.

A ruling wouldn't necessarily happen immediately after the hearings as judges often deliberate over the arguments and issue a written order at a later date.

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