04-07-21 Scott Kudrick backyard horiztonal

Scott Kudrick stands in the backyard of North Conway's 1785 Inn, which he owns, along with several other properties under his N.H. Mountain Rentals umbrella. (RACHEL SHARPLES PHOTO)

CONWAY — An owner of short-term rentals being sued by the town of Conway has answered the town’s petition for declaratory judgment with a filing that makes new claims.

Through its previously filed petition, the town asked Carroll County Superior Court to deem legal or not its interpretation that an April 13 town vote would prohibit non-owner-occupied short-term rentals in residential areas.

The petition, “Town of Conway, New Hampshire versus Scott Kudrick individually and as a representative of a Class of similarly situated defendants,” was filed June 7. It says the “class” of STR owners includes more than 500 members. Kudrick of Conway, chosen because of the number of rentals he owns, was served on June 17.

The town asked the court for:

• An order certifying the defendant class as including all owners and operators of 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.

“The CZO does not permit, in a residential zoning district, commercial uses such as Airbnb, vacation rental by owner (VRBO), and similar short-term rental arrangements (collectively ‘STRs’), unless in an owner-occupied home,” says the town’s petition. “These new uses have proliferated recently.”

On Monday, Kudrick’s attorneys, Mark H. Puffer of Preti Flaherty Law of Concord and Matthew R. Johnson of Devine Millimet Law of Manchester, filed an answer to the town’s petition.

It asks the court: to determine that STRs in Conway don’t have to be owner-occupied; to deny the town’s request for class certification; to allow Kudrick to use various defenses if the court agrees with Conway’s zoning ordinance; to find that the town’s interpretation of its zoning ordinance is “patently unreasonable”; and to award Kudrick attorneys’ fees.

The attorneys also took issue with the fact that Kudrick has been made the face of the STR class in town.

“Scott Kudrick is not an appropriate representative for every person who owns and rents residential property in Conway on a ‘short-term’ basis,” said their response.

“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,” the attorneys said.

The gist of their 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, the filing said.

“Owner-occupancy is NOT required for the short-term or long-term rental, for residential purposes, of an entire house (which includes cooking and kitchen facilities) or for residential units in buildings where each unit has its own cooking and kitchen facilities,” said Kudrick’s attorneys.  

The standard format of a lawsuit answer is to break the lawsuit into numbered paragraphs and to admit or deny the statements in each paragraph. Sometimes the attorneys also include brief explanations of their positions.

They simply deny the conclusions made in paragraph 8, in which the town asserts that “as a result of the proliferation of platforms such as Airbnb and VRBO, many properties in the town have been rented on a short-term basis (STRs), and the resulting uses have caused frequent and significant disturbance to residential neighborhoods in terms of excessive noise, illegal parking, disorderly conduct and other consequences inconsistent with the normal use of a residential dwelling unit.”

In response to paragraph 12, Kudrick’s attorneys say they have no objection to the court determining if the short-term rental of residential property requires owner occupancy but owners must be allowed to use all the various defenses available to them.

The attorneys also give brief summaries of the defenses that Kudrick is pleading.

“The town’s attempt to restrict valuable rights of defendant Kudrick (and many others) to rent their residential properties on a short-term basis unless the properties are owner-occupied constitutes an unlawful and unconstitutional taking of defendant Kudrick’s (and others’) property rights,” said Kudricks lawyers.

Other defenses Kudrick raises include a lack of statutory authority for towns to force rental properties to be owner-occupied and to regulate property uses based on the length of the rental.

The lawyers also brought up the fact that many STR owners are not residents of Conway and couldn’t vote at Conway’s annual town meeting.

Other defenses have to do with the town’s inaction on enforcement until now.

“The town of Conway’s long-term pattern of non-enforcement of the CZO has been so systematic as to constitute ratification of a policy of non-enforcement,” claim Kudrick’s attorneys.  

The town also made a filing of its own on Monday, as a reply to Kudrick’s attorneys objection to class certification.

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

“This issue is not bound up with individual fact-based inquiries and determinations but rather how the terms of the ordinance are applied to this use,” said the town’s attorneys.

“To the extent any individual class member has specific reasons to be excused from compliance, e.g. grandfathering or owner-occupied status, these would be determined in individual enforcement proceedings following the decision from this court.”

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(1) comment

DavefromConway

Hope you win. The town cannot suddenly make lawful behavior unlawful. A grandfathering would be the only reasonable alternative.

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