2024 N.H. 23, Appeal of Hoekstra

permitted under the Town’s zoning ordinance. We rever se and remand. that the petitioners’ rental of their travel trailer for short - term occupancy is not Board of Adjustment (ZBA) for the respondent, the Town of Sunapee (Town), order of the Housing Appeals Boar d (HAB) upholding a decision of the Zoning [¶1] The petitioners, Elizabeth Hoekstra and Peter Hoekstra, appeal an

respondent. Cordell A. Johnston, of Henniker, on the brief and orally for the

brief and orally), for the petitioners. Schuster, Buttrey & Wing, P.A., of Lebanon (Barry C. Schuster on the

Citation: Appeal of Hoekstra, 2024 N.H. 23 Case No. 2023 - 0189 Housing Appeals Board

page is: https://www.courts.nh.gov/our - courts/supreme - court a.m. on the morning of their release. The direct address of the court’s home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

the ordinance itself for further indications of legislative intent. Id. at 616. language of an ordinance is plain and unambiguous, we need not look beyond common and approved usage of the language.” Id. at 615 - 16. When the ( p. 2 2019). “We construe the words and phrases of an ordinance according to the ordinances. Working Stiff Partners v. City of Portsmouth, 172 N.H. 611, 615 use the traditional rules of statutory construction when interpreting zoning we review de novo. Town of Lincoln v. Chenard, 174 N.H. 762, 765 (2022). We [¶6] The interpretation of a zoning ordinance is a question of law, which

unreasonable.” RSA 541:13 ( p. 2 2021). preponderance of the evidence before [us], that such order is unjust or the HAB’s order “except for errors of law, unless [we are] satisfied, by a clear Appeal of Town of Amherst, 175 N.H. 575, 577 (2023). We will not set aside [¶5] Our review of the HAB’s decision is governed by RSA chapter 541.

and incorrect as a matter of law.” petitioners assert that the HAB’s decision to the contrary was “unreasona ble additional requirements set forth in Section 3.40 of the” ordinance. T he travel trailer on [their] home property is subject to and complies with the to the petitioners, “[a]s a use permitted in all of the Town’s zoning districts, the sleeping quarters for ‘not more than 90 days per 1 p. 2 2 - month period.’” According Sunapee Zoning Ordinance permits travel trailers to be used for temporary [¶4] The petitione rs argue that the “express language of the Town of

II. Analysis

appeal followed. decision. The HAB denied the petitioners’ motion for reconsideration. This transient occupancies.” Following a hearing, the HAB affirmed the ZBA’s zoning ordinance d oes not permit the use of travel trailers as rentals “for The ZBA thereafter denied the petitioners’ request for rehearing, ruling that the determination to the ZBA, which upheld the zoning administrator’s decision. specifically permitted is prohibited.” The petitioners appealed that under s ection 4. p. 2 20 of the zoning ordinance, which states that “[a]ny use not petitioners that their use of the trailer for short - term rentals was prohibited [¶3] In June 2023, the Town’s zoning administrator notified the

use as a short - te rm rental. residence. The petitioners also keep a travel trailer on the property that they a single - family dwelling unit that the petitioners use as their primary property in the Village Residential District in the Town. The property includes [¶ p. 2 2] The following facts are supported by the record. The petitioners own

I. Background p. 3 3

as a matter of right under the ordinance. Ordinance a rt. XI. Under section disagree. By definition, a permitted use is a use that is allowable in a district of the Ordinance” but does not create new categories of permitted uses. We requirements applicable to uses that are expressly permitted by other sections [¶9] The Town argues that section p. 3 3.40 (m) merely “establishes additional

petitioners are in compliance with the restrictions imposed by section p. 3 3.40(m). ordinance including building setbacks. The Town does not dispute that the State or Town sewage disposal requirements and all other provisions of the more than ninety days in a twelve - month period so long as it complies with trailer is permitted and may be used for temporary sleeping quarters for not Ordinance s ec. 3.40(m). Under the plain language of section 3.40, a travel

campers, are permitted subject to the following restrictions: trailers, motor homes, recreational vehicles, tent trailers and truck (m) Travel Trailers, which include, but are not limited to, camper

p. 3 3.40 provides: apply to all districts in the Town. (C apitalization and b olding omitted.) Section [¶8] Article III of the ordinance includes “Additional Requirements” that

the ordinance.” Ordinance a rt. XI. “[a] use that is allowable in the District as a matter of right under the terms of permitted is prohibited.” Ordinance s ec. p. 4 4.20. “Permitted use” is defined as s ec. 4.10 (Ordinance). Pursuant to s ection 4.20, “[a]ny use not specifically permitted or special exception use in that district.” Sunapee Zoning Ordinance special exception in any district, it may be used in conjunction with any other [¶7] The ordinance states that “[w] henever a use is permitted by right or 4

concurred. M AC DONALD, C.J., and HANTZ MARC ONI and DONOVAN, JJ.,

ordinance. their travel trailer for short - term occupancy is not permitted under the Town’s reverse its order upholding the ZBA’s decision that the petitioners’ rental of [¶11] Accordingly, we conclude that the HAB erred as a matter of law and

the Town’s ordinance.” Town of Conway v. Kudrick, 175 N.H. 71 p. 4 4, 721 (2023). rentals] on the community when our task is to interpret the plain language of contemplate any policy consi derations regarding the effect of [short - term add words that they did not see fit to include). Moreover, “we decline to (we will not guess what the drafters of the ordinance might have intended or Blagbrough Family Realty Trust v. A&T Forest Prods., 155 N.H. 29, 42 (2007) those limitations the nuance that the Town asserts was intended. See sleeping quarters as limited only by section 3.40(m) and we decline to read into However, the ordinance expressly permits travel trailers for use as temporary trailer as a short - term rental, “available to the general publ ic on a daily basis.” The Town’s apparent concern is that the petitioners are using their travel 12 - month period, and they may receive compensation for that temporary use.” family member, or even a stranger to sle ep in the trailer, for up to 90 days in a owners with a travel trailer, remain free to sleep in the trailer, or allow a friend, [¶10] T he Town concedes that the petitioners, “or any other property

Ordinance s ec. 3. p. 4 40(m). sleeping quarters” in all districts provided the restrictions set forth are met. 3.40, travel trailers are “permitted” as a matter of right for “use[] for temporary