A Victory for Short-Term Rentals
Since the advent of Airbnb and the short-term rental business model, property owners and municipalities have tussled. The battles often involve differing interpretations of the zoning ordinance. A recent example is Appeal of Elizabeth Hoekstra et al. (2024 N.H. 23).
Background – two interpretations of the zoning ordinance
Elizabeth Hoekstra and Peter Hoekstra owned property in the Village Residential District of Sunapee, New Hampshire. The property included a single-family dwelling used as their primary residence and a "travel trailer" they used for short-term rentals.
In June 2023, the Town's zoning administrator notified the Hoekstras that their short-term rental use of the trailer was prohibited under the zoning ordinance, which states that any use not specifically permitted is prohibited. The table of uses did not list short-term rental of travel trailers as a permitted use, but a separate section of the ordinance entitled "Additional Requirements" did.
The Hoekstras appealed this determination to the Zoning Board of Adjustment (ZBA), which upheld the zoning administrator's decision. The Hoekstras appealed that decision to the Housing Appeals Board (HAB) which also affirmed the ZBA’s decision. The Hoestras then appealed the HAB's decision to the New Hampshire Supreme Court.
Supreme Court appeal and decision
The Hoekstras argued the "Additional Requirements" section of the zoning ordinance expressly permits travel trailers to be used for temporary sleeping quarters for not more than 90 days per 12-month period. They asserted the travel trailer on their property complied with these and other applicable requirements of that section of the ordinance.
The town argued the "Additional Requirements" section of the ordinance merely establishes additional requirements applicable to uses that are expressly permitted by other sections of the ordinance but does not create new categories of permitted uses. The town maintained its zoning ordinance does not specifically permit the use of travel trailers for short-term rentals for transient occupancies.
The Supreme Court agreed with the Hoekstras. Under the plain language of the "Additional Requirements" section, a travel trailer is permitted for use as temporary sleeping quarters for not more than 90 days in a 12-month period, provided it complies with state or town sewage disposal requirements and other ordinance provisions, including building setbacks. The court disagreed with the town's argument that the section merely establishes additional requirements without creating new permitted uses, stating that the section allows travel trailers as a matter of right for temporary sleeping quarters in all districts if the specific restrictions are met. The Court also noted the ordinance did not include any limitation on the nature of the compensation received for the use of travel trailers as temporary sleeping quarters.
In short, the Supreme Court reversed the HAB’s decision, ruling it erred as a matter of law by not recognizing the Hoekstras' compliance with the "Additional Requirements" section of the zoning ordinance.
For assistance with permits or other local approvals, contact Alfano Law at (603) 856-8411 or this link.