Court rules against couple's Airbnb rental

PORTSMOUTH — A Superior Court judge ruled residents Barbara Jenny and Matthew Beebe cannot lawfully operate their second, adjacent home as a short-term rental property through Airbnb, upholding a cease-and-desist order by the city.

"The only pertinent permitted principal use for (the couple's) property is as a dwelling," under regulations for the General Residence A District, wrote Rockingham County Superior Court Judge Andrew Schulman, in a 29-page order published Thursday.

City Attorney Robert Sullivan said his office has not analyzed details in the lengthy court order adding, "It is clear the court agreed with the city's premise that short-term rentals are not allowed in residential districts under the city's ordinance."

Jenny and her husband were served the cease-and-desist order in August 2017, stating they’re in violation of city ordinance for their Airbnb rentals. They appealed to the Zoning Board of Adjustment which, in November 2017, unanimously voted to deny their appeal. They next appealed to the Superior Court where a hearing was held in April. Schulman's order is in response to that hearing and public records.

They were not immediately available for comment Friday. The couple’s rental home, advertised as "Lilac House," is at 87 Lincoln Ave. and is “not a business use,” they argued. Jenny previously said they bought the house next door to their own home to make it available for their children in the future, while renting it through Airbnb and using it as a guest house.

In his June 21 order, the judge noted the scope of his review was narrow and he had to dismiss the couple's appeal unless the ZBA's decision was found to be unlawful or unreasonable. The judge summarized the Lilac House owners had argued their Airbnb rentals were no different from month-to-month rentals and long-term leases, but the ZBA disagreed and found Airbnb use to be "transient occupancy," prohibited by city ordinance.

The ordinance states "no building, structure, or land shall be used for any purpose or in any manner than that which is permitted in the district in which it is located." While quoting that ordinance, Schulman also quoted from Portsmouth attorney Peter Loughlin's book, "New Hampshire Practice: Land Use and Planning," stating anything not permitted by zoning is prohibited.

Jenny and Beebe's Lincoln Avenue properties are in a residential district, meaning only single-family homes are allowed, with exceptions not relevant to short-term rentals, the judge wrote. Absent a special exception or variance, Schulman found, the couple can only use its building as a dwelling unit, which by definition, "excludes transient occupancies as hotels, motels, rooming or boarding houses."

Applying the dictionary definition of "transient," the judge ruled city ordinance prohibits Airbnb-style short term rentals as a principal use in the General Residence A District.

The judge noted Jenny and Beebe had cited three national cases in which Airbnb denials were overturned, but found all of them "inapposite." Schulman also found the city ordinance is not unconstitutionally vague and he disagreed with the couple that the city has a defacto policy of nonenforcement that entitled them to continue their short-term rentals.