Donald McGowan & a. v. Town of Hampton

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2024-0465, Donald McGowan & a. v. Town of Hampton, the court on April 24, 2026, issued the following order:

The court has reviewed the written arguments and the record submitted on appeal, has considered the oral arguments of the parties, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). The defendant, the Town of Hampton (Town), appeals an order of the Superior Court (Klass, J.) reversing the decision of the Town's Zoning Board of Adjustment (ZBA). The trial court ruled that the plaintiffs, Donald and Patricia McGowan, had established a lawful preexisting nonconforming use of their property as a short-term rental (STR) by having previously received a Certificate of Rental Occupancy (CRO) from the Town in 2021 that allowed them to lease their property as an STR. We affirm.

The trial court found, or the record otherwise supports, the following facts. The plaintiffs, New York residents, purchased a property in Hampton in 2018. The property includes a house as well as a detached structure comprising a ground-floor garage and second-floor loft (Loft). The property's previous resident used the Loft as a music studio.

The plaintiffs began leasing their property as an STR through Airbnb in May 2019. In April 2021, after neighbors complained to the plaintiffs about noise by STR guests, Ms. McGowan began intermittently staying short-term in the Loft to supervise STR guests in the main house.

In 2023, the Town adopted an STR ordinance, which for the first time specifically regulated STRs by requiring an STR permit for property within a newly created overlay district and requiring a special exception for property outside the overlay district. See Hampton Zoning Ordinance (HZO) § 21.2 (2023). The plaintiffs' property sits outside the overlay district. In March 2023, the Town sent the plaintiffs a letter revoking their CRO. The letter advised the plaintiffs that their CRO would "be reissued for Long Term rental use" when they ceased using the property as an STR. The letter also noted, however, that under the new ordinance, the plaintiffs could seek a special exception to lease their property as an STR.

The plaintiffs applied with the Town's ZBA for a special exception. In a subsequent letter, they also argued to the ZBA that their short-term leasing of

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the property was "a legal non-conforming use . . . such that no Special Exception relief is required."

After four hearings, the ZBA issued a notice of decision stating that the plaintiffs did not establish a lawful prior nonconforming use because the above-garage Loft was a detached Accessory Dwelling Unit (ADU) under the HZO. The ZBA ruled that because the plaintiffs' prior short-term leasing of their property had violated HZO § 3-A.4(c), they could not qualify for a preexisting nonconforming use. See HZO § 3-A.4 (2017) (providing that a property containing an ADU must be occupied by the owner and may not be rented for a term of less than six months). The ZBA additionally determined that the plaintiffs did not qualify for a special exception. The plaintiffs moved for rehearing, which the ZBA denied.

The plaintiffs appealed the ZBA's decision to the superior court. See RSA 677:4 (2016). After a hearing, the trial court issued an order reversing the ZBA's decision. The trial court determined that the Loft was not an ADU, and, consequently, the plaintiffs' STR had not violated HZO § 3-A.4(c). The court concluded that the plaintiffs had met their burden of showing that their STR use was a lawful preexisting nonconforming use. The court therefore did not reach the special exception issue. The Town moved for reconsideration, which the court denied. This appeal followed.

Judicial review in zoning cases is limited. See Dartmouth Corp. of Alpha Delta v. Town of Hanover, 169 N.H. 743, 749 (2017). The party seeking to set aside the ZBA's decision bears the burden of proof on appeal to the trial court. Dietz v. Town of Tuftonboro, 171 N.H. 614, 618 (2019). The factual findings of the ZBA are deemed prima facie lawful and reasonable, and will not be set aside by the trial court absent errors of law, unless the court is persuaded, based upon a balance of probabilities, on the evidence before it, that the ZBA's decision is unreasonable. Id.; see RSA 677:6 (2016). The trial court's review is not to determine whether it agrees with the ZBA's findings, but to determine whether there is evidence upon which they could have been reasonably based. Dietz, 171 N.H. at 618. We will uphold the trial court's decision unless it is unsupported by the evidence or legally erroneous. Monadnock Rod and Gun Club v. Town of Peterborough, 177 N.H. 70, 74 (2024), 2024 N.H. 61, ¶10. The Town argues that despite its issuance of the CRO, a preexisting nonconforming use cannot be established "[i]f the use of the [property] was in violation of the applicable zoning ordinances at the time." The Town asserts that the property was in violation of zoning ordinances in two ways: first, there was an ADU on the property (which triggers additional zoning ordinance requirements of owner occupancy and minimum rental periods); and second, the CRO was invalid because the plaintiffs' CRO application did not disclose the ADU. See HZO §§ 3-A.4(a) (requiring owner occupancy of either the ADU or the main dwelling unit as principal place of residence), 3-A.4(c) (prohibiting

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rental periods of less than six months for either unit), 12.1-.2 (1998) (requiring inspection and a CRO for residential properties "otherwise occupied for residential purposes"). In addition, the Town argues that the ZBA properly denied the plaintiffs' application for a special exception. We conclude that the trial court correctly determined that there was a lawful preexisting nonconforming use and thus we need not address the special exception. As the trial court noted, properties in Hampton containing an ADU cannot be rented for terms of less than six months — precluding their use as STRs. See HZO § 3.A.4(c). Therefore, if, as the Town contends, the plaintiffs' Loft was an ADU under the HZO, the use of the property violated the applicable zoning ordinance at the time and accordingly would not qualify as a lawful preexisting nonconforming use. See Monadnock Rod and Gun Club, 177 N.H. at 75, 2024 N.H. 61, ¶¶13-15 (holding that a shooting range's violation of a zoning ordinance made the range "illegal and therefore ineligible to later qualify as a lawful nonconforming use").

Thus, we must first address whether the Loft is an ADU under the HZO. The interpretation of a zoning ordinance presents a question of law that we review de novo. Batchelder v. Town of Plymouth Zoning Bd. of Adjustment,

160 N.H. 253, 256 (2010). The traditional rules of statutory interpretation govern our review. See id. The words and phrases of an ordinance should be construed according to the common and approved usage of the language. See id. When the language of an ordinance is plain and unambiguous, we need not look beyond the ordinance itself. See id. Moreover, we will not guess what the drafters of the ordinance might have intended, or add words that they did not see fit to include. See id. at 256-57. We determine the meaning of a zoning ordinance from its construction as a whole, not by construing isolated words or phrases. See id. at 257. Finally, we give effect to all words in an ordinance and presume that the Town's legislative body did not enact superfluous or redundant words. See Appeal of Vasquez, 175 N.H. 450, 453 (2022). HZO sections 1.6 and 3-A.3, as codified at the time of the events in this case, were both adopted in 2017 and pertain to ADUs. See HZO §§ 1.6, 3-A.3 (2017). HZO section 1.6 defines an ADU as:

A residential living unit that is within or attached to a single-family dwelling, and that provides independent living facilities for one to four persons, including provisions for sleeping, eating, cooking, and sanitation on the same parcel of land as the principal dwelling unit it accompanies. A residential living unit located within a detached structure that predates the enactment of Article III-A, and that is already detached from the principal dwelling unit shall also be considered an Accessory Dwelling Unit.¹

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HZO § 1.6. HZO section 3-A.3, titled "Provisions for Living Facilities," states that an ADU "must provide . . . provisions for sleeping, eating, cooking (stove, refrigerator and sink), and sanitation (shower/tub, toilet and sink)." (Emphasis added.)

The trial court found that the Loft had, in relevant part, a bed, a dining room table, a microwave and a refrigerator,²and a three-quarter bathroom with a toilet, sink, and shower. The court concluded that the Loft was not an ADU because it did not have a cooking stove or kitchen sink. The parties offer differing interpretations of HZO sections 1.6 and 3-A.3. They also disagree on:

(1) whether the parenthetical language in HZO section 3-A.3 imposes requirements or provides examples; and (2) whether any such requirements apply to attached and detached ADUs equally.³

The language of HZO section 3-A.3 is clear and unambiguous: an ADU

"must provide independent living facilities . . . including provisions for . . . cooking" that include a "stove, refrigerator and sink." (Emphasis added.) See Batchelder, 160 N.H. at 245. The use of the word "must" makes these provisions mandatory. See In the Matter of Liquidation of Home Ins. Co., 157 N.H. 543, 553 (2008). We agree with the trial court that ignoring the requirement for a cooking stove and kitchen sink improperly reads the words

"stove" and "sink" out of the ordinance. See Appeal of Vasquez, 175 N.H. at

453. As to whether any such requirements apply equally to attached and detached ADUs, we agree with the trial court that an interpretation that requires cooking facilities for attached ADUs but not for detached ADUs

"requires an illogical reading of the Ordinance as a whole [and] is also inconsistent with the statutory definition of an Accessory Dwelling Unit." See RSA 674:71 (2025). Accordingly, we agree with the trial court that the Loft is not an ADU, and thus the plaintiffs' prior short-term leasing of their property did not violate the HZO.

Alternatively, the Town argues that the plaintiffs cannot show a prior lawful nonconforming use because they allegedly failed to disclose the Loft's existence on their CRO application, rendering the granted CRO invalid. The plaintiffs contend that this issue was not preserved. We agree.

"Where a party fails to demonstrate that it raised an issue before the trial court, the issue is not preserved for our review." Blagbrough Family Realty Trust v. A & T Forest Prods. Inc., 155 N.H. 29, 35 (2007). Our review of the ADU in RSA 674:71 (2025).

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record establishes that this issue was not presented to the trial court. Therefore, we decline to address it.

We agree with the trial court's conclusion that the plaintiffs' right to use their property as an STR attached when they received their CRO in 2021. We further note that on appeal, the Town does not challenge the trial court's conclusion that, before the STR ordinance's enactment in 2023, the Town's zoning ordinance permitted short-term rentals in the plaintiffs' zoning district. Finally, because we agree with the trial court that the plaintiffs established a preexisting nonconforming use, we need not reach the issue of whether they met their burden to receive a special exception. Consequently, we affirm the trial court's ruling in favor of the plaintiffs.

Affirmed.

MACDONALD, C.J., and DONOVAN, COUNTWAY, and GOULD, JJ.,

concurred.

Timothy A. Gudas, Clerk