Zoning

Eric Wind Attorney at NH Public Utilities Commission in Concord.

Eric Wind
Attorney at NH Public Utilities Commission
in Concord.

No. 2018-0491
September 27, 2019
Affirmed

  • Whether the trial court correctly upheld the city zoning board’s decision that the plaintiff corporation’s use of its property for short-term rentals was not permitted as a principal use in the zoning district in which the property was located.
  • Whether the definition of “dwelling unit” contained in the city’s zoning ordinance was unconstitutionally vague as applied to the plaintiff.

The plaintiff owned a four-bedroom house in Portsmouth, which was not used as a primary residence by any person. The plaintiff offered the property for short-term rentals on online platforms such as Airbnb, advertising daily rates, that the property was suitable for family parties, wedding parties, or corporate stays, and that it could accommodate up to nine guests. The City wrote the plaintiff and informed it that such use was not permitted under the zoning ordinance, giving 10 days to cease and desist. Plaintiff appealed the order to the Zoning Board, which upheld the order after rehearing. The plaintiff appealed the Board’s decision to the trial court. The plaintiff also sought to enjoin further attempts by the City to regulate short-term rentals pursuant to the ordinance. The trial court affirmed the Board’s decision and denied injunctive relief.

The plaintiff’s central argument on appeal was that the trial court erred in interpreting the ordinance as not permitting the short-term rental of the property as a principal use. The Court held that the building was not utilized as a dwelling unit, that the use was transient in nature, and thus was properly interpreted. In considering the ordinance as a whole, the Court concluded that the plaintiff’s use of the property for daily rentals to paying guests constituted a “transient occupancy” similar to a hotel, motel, rooming house, or boarding house. Because the ordinance expressly excludes “such transient occupancies” from the definition of a “dwelling unit,” the plaintiff’s use was not as a “dwelling unit.”

The Court went on to find that the plaintiff’s challenge, as applied, failed because the plaintiff did not meet its burden to show that the ordinance did not provide plaintiff with a reasonable opportunity to understand that its conduct was not permitted as a dwelling unit, or that the ordinance is so vague that it authorized or encouraged arbitrary or discriminatory enforcement.

 

Boynton, Waldron, Doleac, Woodman & Scott, of Portsmouth (Christopher J. Fischer and Francis X. Quinn on the brief, and Mr. Fischer orally), for the plaintiff. Robert P. Sullivan, city attorney, and Jane Ferrini, assistant city attorney, of Portsmouth, on the brief, and Mr. Sullivan orally, for the defendant.