The Madison Zoning Board of Adjustment has placed new restrictions on the short-term rental owners who defeated the town in court last year.
While the judge said the owners can rent short-term, the zoning board is now attempting to limit the number of days that the owners can rent.
The ZBA decided the rental days can’t exceed the most days a property has been rented in one year plus 15 percent.
Two out-of-town couples who own a short-term rental in the Madison development called Eidelweiss prevailed over the town in New Hampshire’s land use court in December.
The case, filed June 12, is called “Chad and Brittney Ardizzoni and Aaron and Tiffany Clymer vs. the Town of Madison and the Town of Madison Zoning Board of Adjustment.” The Clymers live in Londonderry, and the Ardizzonis in Hooksett. The case was in the hands of Judge Michael Klass, who presides over the state Land Use Review Docket, based in Manchester.
The couples’ home is located at 13 Lucerne Drive in Eidelweiss. They bought it in June 2022 and began renting it short-term as well as using it themselves.
The Ardizzonis and Clymers are represented by Matt Johnson of the Devine Millimet and Branch law firm in Manchester as well as Stasie Dora Levin, while the town and ZBA are represented by attorney Christopher Boldt of Donahue, Tucker & Ciandella PLLC of Meredith.
Johnson says that the previous owners rented the home short-term as far back as 2017. New STRs have been banned in Madison since March 2022. Converting properties into rentals for periods of less than 30 days is prohibited.
In sum, the court concludes that the property’s use as a short-term rental is allowed under the 2015 ordinance. Thus, the property’s use as a short-term rental in 2017 was permitted as “a nonconforming pre-existing use.”
The ZBA took up the Ardizzoni case and another similar cases at their meeting on Feb. 19.
“So the question is whether or not our ordinance allows for an expansion of that (non-conforming pre-existing use,” said chair Drew Gentile. “In other words, do we simply say, ‘Well, OK, it’s a pre-existing use. He can use as much as he wants … Or does our ordinance say, well, we can’t expand (it)?”
Gentile said the highest number of days that 13 Lucerne Drive in Eidelweiss was rented was 54 days in 2017.
After discussion, the zoning board voted to adopt ZBA member Doug McAllister’s suggestion of adding 15 percent to the 54 days. McAllister suggested using a percentage so they could use the same formula in other cases.
So, in a 5-0 vote, with Gentile, McAllister, Sharon Schilling, George Rau and alternate Jennifer Skaife voting, the ZBA granted the Ardizzonis and the Clymers 61 rental days.
Another property in a similar situation was given a 69-day limit, based on a history of maxing out at 60 rental days plus 15 percent.
But Johnson cautioned the ZBA against trying to limit rental days.
As the STR owners’ attorney, he said he would contest any position or decision by the ZBA to “arbitrarily pick a date over which you could not do more than a certain amount of days under a pre-existing use analysis.”
“I don’t think there’s any case law or any Supreme Court cases that get into that issue … Our position at least is ZBA does not have that authority to do that.”
Boldt disagreed that the ZBA can’t limit days but agreed there is no court precedence on this issue.
There is a 30-day appeal to the ZBA before the owners can go to court.
Judge Klass said in his ruling in favor of the Ardizzonis, “The court concludes that the property is not being used in a commercial or business-like manner for the purposes of zoning” and in regards to the grandfathered rights ,he directed the Madison ZBA to permit the short-term rental use “indefinitely.”
David Cavanaugh, president of the MWV Responsible Renters Association, responded: “This is another win for property owners’ rights. Justice Michael A. Klass confirmed that STRs are a residential use, not a business or commercial use and as a legal pre-existing use, in all zones in Madison, are required to be grandfathered.”
He added: “We are very concerned the Madison ZBA seems to now be ignoring the clear intent of the N.H. Superior Court to grandfather these properties and are now trying to retroactively add an additional restriction on how many nights a year an owner can rent their own property. Since there was no limit on the number of nights a residential property could be rented before the 2022 change in Madison’s zoning, there is no justification for a limit in the future.
“This rental nights cap in Madison was already denied by the courts in the Freedom’s short-term rental case. How would Madison even enforce a limit on the number of days a home could be used by anyone other than the owner? N.H. law doesn’t give towns the right to demand financial and tax records from private property owners. We established that in Jackson, when they tried.
“Furthermore, based on the ZBA’s discussions on Wednesday, they are proposing different caps for different properties based on past use. This would create a situation where on one street three houses could potentially be for sale, one allowing the new owner to rent for 180 days per year, one for 50 days and another could never be rented. How could the courts allow that?” Cavanaugh said.
This article is being shared by partners in the Granite State News Collaborative. For more information, visit collaborativenh.org.
