ZBA calls short-term rentals a commercial endeavor, not allowed

Two couples who co-own a home in Madison are suing the town zoning board of adjustment for not allowing them to use the property as a short-term rental.

The case, filed June 12 — “Chad and Brittney Ardizzoni and Aaron and Tiffany Clymer v. the Town of Madison and the Town of Madison Zoning Board of Adjustment” — is now in the hands of Judge Michael Klass who presides over the state Land Use Review Docket, based in Manchester. The Clymers live in Londonderry and the Ardizzonis in Hooksett.

New STRs have been banned in Madison since March 2022. Converting properties into rentals for periods of less than 30 days is prohibited. But the situation is less clearcut with short-term rental properties operating on a continuous basis between 1987 and March 2022. Properties rented before 1987 are grandfathered.

Adding to the complexity is the fact that in the Eidelweiss Residential District — where the couples’ property is located — commercial activity is not permitted. The zoning board has taken the position that, in Edelweiss, STRs constitute commercial activity and are not allowed.

The Ardizzonis and Clymers are represented by Matt Johnson of the Devine Millimet and Branch law firm in Manchester.

The couples’ home is located at 13 Lucerne Drive in Eidelweiss. They bought it in June of 2022 and began renting it short-term as well as using it themselves. According to Zillow, the three-bedroom, three-bathroom home totals 2,029 square feet. It has an estimated value of about $540,000.

Johnson says the previous owners rented the home short-term as far back as 2017.

In 2022, Madison residents voted to amend the definition of dwelling unit to say units used for “non-transient residential purposes” and “non-transient occupancy” can’t be rented for less than 30 days.

Last August, town code enforcement officer Robert Boyd issued a notice of violation and ordered the couples to stop renting the property. The couples want Klass to overturn the ZBA decision and issue an order to withdraw the notice of violation or send the case back to the ZBA “with instructions.”

The owners filed an appeal with the ZBA challenging the notice of violation. The ZBA ended up hearing the case on March 20 and it upheld Boyd.

“The ZBA stated that there is ‘solid evidence’ that the property has been in continuous use as a short-term rental since July of 2017,” said Johnson, who said the ZBA used an entirely different section of the ordinance to deny his client’s the ability to rent.

“Nonetheless, the ZBA concluded that the language of the Zoning Ordinance Article 4.6, in conjunction with the definition of ‘motel’ and ‘commercial use’ do not permit short-term rentals,” the attorney said.

Zoning Ordinance Article 4.6 is particular to the Eidelweiss Residential District and it says commercial enterprises are prohibited. According to the ZBA, Article 4.6 goes back to the 1990s. The original owner had it from 1985 to 2015 and never rented it.

The ZBA denied the owners a rehearing on May 15. Johnson has several arguments to counter the zoning board.

“The petitioners’ property is a pre-existing nonconforming use; it was used for short-term rentals historically and after the most recent amendments to the Zoning Ordinance in March of 2022,” he said.

As for Article 4.6, Johnson says the owners have been using the property in a residential manner, not commercially. He cited the Conway v. Scott Kudrick New Hampshire Supreme Court case to make his point.

Johnson represented Kudrick successfully and argued that Conway’s ordinances didn’t bar Kudrick from renting short-term.

“The Conway case already established that individuals utilizing a property for transitory or temporary residential uses does not convert the use of the property into a commercial use,” said Johnson.

Johnson claims that the town’s definition of “dwelling unit” is constitutionally vague.

The ordinance “will have the effect of forcing owners to sell their property,” said Johnson, who earlier in the lawsuit said the 13 Lucerne Drive owners need to rent their property to afford to keep it. “It is not the province of the town or ZBA to force existing owners with established uses into economic hardship.”

The town and ZBA are represented by Christopher Boldt of Donahue, Tucker & Ciandella PLLC of Meredith. Boldt has until Aug. 6 to respond to the suit.

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