Claiming that Conway has embarked on an “illegal rental licensing scheme,” the Mt. Washington Valley Association for Responsible Vacation Rentals is suing the town in Superior Court.
“Mt. Washington Valley Association for Responsible Vacation Rentals, et al. v. Town of Conway,” filed Tuesday afternoon, will be heard in the state’s land use court at Hillsborough County Superior Court North in Manchester.
This marks the second time the town and the North Conway-based association have clashed in court.
The other plaintiff in the case is White Mountain Properties, LLC of Medford, Mass. which owns several rental properties in Conway. According to the New Hampshire of Secretary of State’s Office, White Mountain Properties belongs to Jerry and James Decristofaro. Jerry Decristofaro is a past association president.
The association is represented by Matt Johnson of Devine Millimet and Branch. Johnson asks the court to determine that the program was passed without lawful authority and to prohibit the town from enforcing the program.
“While the Renters’ Association has always made safety a priority, the warrantless searches of residential property are very problematic,” said Association President David Cavanaugh in a press release Tuesday, adding the assocation prefers Jackson’s regulations which doesn’t require inspections.
“Sadly, they ignored our input. They seem determined to send Conway back to court, to decide the issue for them. We are confident N.H. courts will again uphold private property rights, like they did in the Conway v. Kudrick and Freedom v. Cotter cases we won,” he said.
The Sun informed Deputy Town Manager Paul DegliAngeli of the lawsuit. “News to us,” he said.
This is now the second time the town of Conway and assocation have clashed.
In May of last year, the New Hampshire Supreme Court sided with the assocation in a case where the town sued assocation member Scott Kudrick claiming the town’s zoning ordinance barred non-owner occupied renting. Johnson represented Kudrick.
Since then, Conway created a licensing program that requires physical inspections of long and short-term rentals, for a fee. If the rentals pass, town officials will grant a certificate of rental compliance. The program kicked off in September. Selectmen asked voters ratify the program in an April 9 vote and they did, 1,004-743.
“The town, as a creature of statute, has only the powers expressly or impliedly granted to it by the legislature,” said Johnson. “The town lacks statutory authority to implement the rental licensing scheme. The legislature has not granted municipalities the power to restrict an owner’s ability to rent his or her property unless the owner consents to a search of the premises.”
Johnson continued, “By implementing the rental licensing scheme, the town has exceeded its statutory authority. Thus, its rental licensing scheme is illegal.”
The lawsuit says the program forces property owners to choose between their right to be free from unreasonable searches and the right to use their property.
“Under the rental licensing scheme the town is unconstitutionally searching the rental properties of owners without a warrant supported by probable cause,” said Johnson. “Accordingly, the Court should declare that the rental licensing scheme violates the United States and New Hampshire Constitutions.”
Johnson asks Klass to issue a temporary or permanent injunction against the program.
“Because the town’s rental licensing scheme violates the United States and New Hampshire Constitutions, it should pay the Plaintiffs’ reasonable costs and attorney’s fees,” said Johnson.
In an interview last month, DegliAngeli and Zoning Enforcement Officer Nicholas DeVito said the first violation notices to property owners out of compliance with the Conway rental program may go out in October.
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