Argued: June 18, 2019
Boynton, Waldron, Doleac, Woodman & Scott, P.A., of
Portsmouth (Christopher J. Fischer and Francis X. Quinn on
the brief, and Mr. Fischer orally), for the plaintiff.
P. Sullivan, city attorney, and Jane Ferrini, assistant city
attorney, of Portsmouth, on the brief, and Mr. Sullivan
orally, for the defendant.
Hoefle, Phoenix, Gormley & Roberts, P.A., of Portsmouth
(Monica F. Kieser), for the intervenors, joined in the brief
of the defendant.
plaintiff, Working Stiff Partners, LLC, appeals an order of
the Superior Court (Schulman, J.) upholding a
decision of the Zoning Board of Adjustment (ZBA) for the
defendant, City of Portsmouth (City), and denying injunctive
relief. The court ruled that the plaintiff's use of its
property for short-term rentals via websites such as Airbnb
was not permitted as a principal use in the zoning district
in which the property was located, and that the definition of
"[d]welling unit" contained in the City's
zoning ordinance was not unconstitutionally vague as applied
to the plaintiff. We affirm.
following facts are recited in the trial court's order or
are otherwise undisputed. The plaintiff is a limited
liability company that owns a four-bedroom house on Lincoln
Avenue in Portsmouth (the property). In turn, the company is
owned by two individuals, who reside in a home adjacent to
the property. The owners' residence and the property are
not located on the same lot, however. No one resides in the
property as a primary residence.
point, the plaintiff began renovating the property. The
plaintiff planned to make the property available for
short-term rentals via websites such as Airbnb, Homeaway, and
VRBO. While renovations were ongoing, the City received one
or more complaints regarding the property. The complaints
objected to the plaintiff's plan to use the property for
short-term rentals. Before renovations were completed, the
City wrote to the plaintiff's owners to notify them that
using the property for short-term rentals may not be
permitted in the property's zoning district, and
recommended that they contact the City's Planning
Department to confirm that such a use would be permitted.
Despite the City's letter, the plaintiff continued
renovating the property and eventually began marketing it on
Airbnb. The Airbnb listing offered daily rates, and stated
that the property was suitable for family parties, wedding
parties, and corporate stays. It also stated that the
property could accommodate up to nine guests. As of November
2017, the property was occupied by guests 17% of the year.
City then received additional complaints objecting to the use
of the property for short-term rentals. The complaints were
not related to guest misbehavior, loud noises, or other
disturbances. Rather, the complaints expressed categorical
opposition to the use of the property for short-term rentals
via websites like Airbnb. The City's code enforcement
officer wrote to the plaintiff, stating that the
plaintiff's use of the property was not permitted by the
zoning ordinance. The officer informed the plaintiff that,
unless it had "documentation to state otherwise, "
the plaintiff had to cease and desist from using the property
for short-term rentals within ten days. The plaintiff,
through counsel, requested and received additional time to
respond. After approximately three months went by without any
response, the code enforcement officer issued a final cease
and desist order.
plaintiff appealed this cease and desist order to the ZBA.
After a public hearing, the ZBA upheld the order. The
plaintiff did not appear at the hearing. The plaintiff
requested a rehearing, claiming it did not receive actual
notice of the public hearing. The ZBA granted a rehearing.
After a second public hearing, at which the plaintiff had the
opportunity to address the ZBA directly, the ZBA once again
upheld the cease and desist order. The plaintiff then
appealed the ZBA'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
court affirmed the ZBA's decision and denied injunctive
relief. This appeal followed.
review in zoning cases is limited. Dietz v. Town of
Tuftonboro, 171 N.H. 614, 618 (2019). The party seeking
to set aside the ZBA's decision bears the burden of proof
on appeal to the trial court. Id. The factual
findings of the ZBA are deemed prima facie lawful
and reasonable, and will not be set aside by the trial court
absent errors of law, unless the court is persuaded, based
upon a balance of probabilities, on the evidence before it,
that the ZBA's decision is unreasonable. Id. The
trial court's review is not to determine whether it
agrees with the ZBA's findings, but rather, to determine
whether there is evidence upon which they could have been
reasonably based. Id. However, the trial court
reviews issues of law de novo. See id. We
will uphold the trial court's decision on appeal unless
it is not supported by the evidence or is legally erroneous.
Id. We review the trial court's rulings on
questions of law de novo. Merriam Farm, Inc. v.
Town of Surry, 168 N.H. 197, 199 (2015).
plaintiff's central argument on appeal is that the trial
court erred in interpreting the ordinance as not permitting
the short-term rental of the property as a principal use. The
interpretation of an ordinance is a question of law,
id., and requires us to determine the intent of the
enacting body, Feins v. Town of Wilmot, 154 N.H.
715, 719 (2007). We use the traditional rules of statutory
construction when interpreting zoning ordinances.
Id. We construe the words and phrases of an
ordinance according to the common and approved usage of the
language, Town of Carroll v. Rines, 164 N.H. 523,
526 (2013), but where the ordinance defines the terms in
issue, those definitions will govern, Severance v. Town
of Epsom, 155 N.H. 359, 361 (2007). Furthermore, we
determine the meaning of a zoning ordinance from its
construction as a whole, not by construing isolated words or
phrases. Feins, 154 N.H. at 719. When the language
of an ordinance is plain and unambiguous, we need not look
beyond the ordinance itself for further indications of
legislative intent. Rines, 164 N.H. at 526.
ordinance states: "No building, structure, or land shall
be used for any purpose or in any manner other than that
which is permitted in the district in which it is
located." Portsmouth, N.H., Zoning Ordinance
ch. 10, art. 4, § 10.432 (2017) (hereinafter,
"Ordinance"). Thus, the ordinance
establishes a "permissive" zoning regime intended
to prohibit all uses that are not expressly permitted, or
incidental to uses so permitted, in the district in which a
given property is located. See Rines, 164 N.H. at
526. Generally, "[a]s a first step in the application of
such an ordinance[, ] one looks to the list of primary uses
permitted in a given district established by the
ordinance." Town of Windham v. Alfond, 129 N.H.
24, 27 (1986).
trial court noted, the property is located in the City's
"General Residence A" (GRA) district. The
ordinance's stated purpose for this district is
"[t]o provide areas for single-family, two-family and
multifamily dwellings, with appropriate accessory uses, at
moderate to high densities (ranging from approximately 5 to
12 dwelling units per acre), together with appropriate
accessory uses and limited services." Ordinance
ch. 10, art. 4, § 10.410. In accordance with this
purpose, the ordinance expressly permits single-family
dwellings and two-family dwellings in the GRA district as
principal uses. See id. ch. 10, art. 4, §§
10.434.10; 10.440; see also id. ch. 10, art. 15,
§ 10.1530 (defining "[p]rincipal use" as
"[t]he primary use on a lot, which may have accessory
uses"). However, very few other principal uses are
permitted as of right in the GRA district. See generally
id. ch. 10, art. 4, § 10.440 (listing permitted and
prohibited uses, and uses which are only allowed by special
exception or conditional use permit). Hotels, motels, inns,
and boarding ...