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Working Stiff Partners, LLC v. City of Portsmouth

Supreme Court of New Hampshire, Rockingham

September 27, 2019


          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.

          Robert 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.

          HANTZ MARCONI, J.

         The 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.

         The 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.

         At some 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.

         The 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.

         The 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.

         Our 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).

         The 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.

         The 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).

         As the 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, ยง 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 ...

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