MWV STR Association sues Conway

The Mt. Washington Valley Association for Responsible Vacation Rentals claims Conway started an “illegal rental licensing scheme” and is suing the city in Supreme Court.

The Mt. Washington Valley Association for Responsible Vacation Rentals claims Conway started an “illegal rental licensing scheme” and is suing the city in Supreme Court.

The case, “Mt. Washington Valley Association for Responsible Vacation Rentals, et al. v. Town of Conway,” filed Tuesday afternoon, is being heard in the state’s land use court at Hillsborough County Superior Court North in Manchester.

This is the second time that the city and the North Conway-based association have been in court.

The other plaintiff in the case is White Mountain Properties, LLC of Medford, Massachusetts, which owns several rental properties in Conway. According to the New Hampshire Secretary of State’s office, White Mountain Properties is owned by Jerry and James Decristofaro. Jerry Decristofaro is a past president of the association.

The association is represented by Matt Johnson of Devine Millimet and Branch. Johnson is asking the court to find that the program was passed without statutory authority and to enjoin the city from enforcing the program.

“While safety has always been the tenants’ association’s top priority, warrantless searches of residential properties are very problematic,” association president David Cavanaugh said in a press release Tuesday, adding that the association prefers Jackson’s rules, which do not require inspections.

“Unfortunately, they have ignored our input. They seem determined to send Conway back to court so the court can decide the matter for them. We are confident that the New Hampshire courts will once again uphold property rights as they did in Conway v. Kudrick and Freedom v. Cotter, which we won,” he said.

The Sun informed Deputy City Manager Paul DegliAngeli of the lawsuit. “News to us,” he said.

This is the second time that there have been clashes between the City of Conway and the association.

Last May, the New Hampshire Supreme Court ruled in favor of the association in a case in which the city sued association member Scott Kudrick, arguing that the city’s zoning code prohibits the rental of non-owner-occupied housing. Johnson represented Kudrick.

Since then, Conway has launched a licensing program that provides physical inspections of long-term and short-term rentals for a fee. If the rents meet requirements, city officials issue a certificate of rental compliance. The program launched in September. City councilors asked voters to ratify the program in an April 9 vote, and they approved it by a vote of 1,004 to 743.

“The city, as a creature of the law, has only the powers expressly or impliedly granted to it by the legislature,” Johnson said. “The city does not have the statutory authority to implement the rental license system. The legislature has not given municipalities the authority to restrict an owner’s ability to rent their property unless they consent to a search of the property.”

Johnson continued, “By implementing the rental licensing system, the city has exceeded its legal authority. Therefore, its rental licensing system is illegal.”

The lawsuit says the program forces property owners to choose between their right to be free from unreasonable searches and their right to use their property.

“Under the rental license system, the city unconstitutionally searches owners’ rental properties without a warrant supported by probable cause,” Johnson said. “Therefore, the court should declare that the rental license system violates the United States and New Hampshire Constitutions.”

Johnson is asking Klass to issue a temporary or permanent injunction against the program.

“Because the city’s rental licensing system violates the United States and New Hampshire Constitutions, the city should pay the plaintiff’s reasonable costs and attorneys’ fees,” Johnson said.

In an interview last month, DegliAngeli and Nicholas DeVito, who oversees building code enforcement, said the first notices to property owners who do not comply with the Conway rental program may be sent out in October.

This article is shared by partners in The Granite State News Collaborative. For more information, visit collaborativenh.org.