Regulating the Use of Residential Property for Short-Term Rentals Falls within Municipal Zoning Authority under RSA 674:16

This appears to be the final chapter of a 9-year challenge to the so-called “guest provision” of the Kearsarge Lighting Precinct’s Zoning Ordinance, which states “[a]ll residential properties that offer sleeping accommodations to transient or permanent guests shall be owner occupied and operated.” The plaintiffs, non-occupying owners of property operated as short-term rentals, challenged the Precinct’s enforcement of this provision.  Most of the claims in the case were resolved in an earlier Supreme Court order (Andrews v. Kearsarge Lighting Precinct, No. 2021-0543, 8/31/2023) and this last order addresses whether the guest provision is “ultra vires,” meaning outside of the Precinct’s zoning authority. 

The Order includes a fairly standard recitation of the principles of ordinance interpretation in New Hampshire. The Court construes the words and phrases in an ordinance consistent with their commonly-understood definitions and limits its review to the language itself (barring ambiguity), without guessing what the drafters of the ordinance might have intended or adding words that the drafters did not see fit to include. The Court also determines the meaning of a zoning ordinance from its construction as a whole, not by construing isolated words or phrases. 

Following these principles, the Court noted that the term “guest” was not defined in the Ordinance and looked to its dictionary meanings to conclude that the guest provision simply means that an owner must be present and operating the property during any visits by invited persons who are offered sleeping accommodations. Although the plaintiffs argued that the phrase “permanent guest” in the Ordinance meant someone who leases the property to live in it, and thus the provision precluded leasing the property out at all, the Court rejected this for two reasons. First, it wouldn’t preclude a lease, it would simply mean that the owner would also have to occupy the house at the same time. Second, the Ordinance said nothing about “tenants,” which are a very different class of occupants than “guests.” 

Next, the Court considered whether requiring owner occupancy of the property where guest accommodations were offered was within municipal zoning authority under RSA 674:16. The statute authorizes zoning for the purpose of “promoting the health, safety, or the general welfare of the community” by regulating and restricting the “location and use of buildings, structures, and land used for business industrial, residential, or other purposes.” Keying in on “general welfare,” the Court noted with approval the trial court’s observation that “the Guest Provision…ensures that a residential property remain[s] residential in nature by requiring a property owner hosting guests or offering commercial accommodation services to reside at the residence.” They also agreed with the trial court that “maintaining the residential character of a community falls squarely within the concept of promoting the general welfare of the community.” 

Finally, the Court noted that it did not have to decide whether a zoning provision that prohibited short-term rentals altogether was within municipal zoning authority because the provision at issue in this case did not do that; it merely regulated the way the use could be carried out.  

*This is a Final Order issued by the Supreme Court that disposes of a case that has been briefed but in which no opinion is issued. Although this Final Order has no precedential value, it does provide helpful guidance for municipal officials.  

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