Meredith Zoning Board upholds court ruling grandfathering short-term rental property into current town ordinance

Declining a plea to act in a dispute involving the town and a short-term rental property, the Meredith Zoning Board of Adjustment unanimously denied an administrative appeal by Black Cove resident Frank Marino at its meeting Nov. 9.

Earlier this year, the town pursued, and then settled, a lawsuit with Douglas and Allison Keach, owners of a short-term rental property in Black Cove on Meredith Neck after complaints from Marino. The property was out of compliance with a 2022 zoning ordinance amendment regulating short-term rentals, but the town settled the suit after the owners provided information sufficient for the town to determine the property was “grandfathered” into the regulation, according to court records.

Marino and his neighbors dispute the eligibility of that property for grandfathering, and he filed an administrative appeal of the town’s settlement. Administrative appeals are heard by the ZBA.

“There’s nothing that I can see that says that they made an error in judgment interpretation of the zoning ordinance — that we have jurisdiction over,” Zoning Board Chair Robb Jutton said at the meeting. “(The town) had the jurisdiction to make the decision it made. Whether it was right or not wrong, I can’t say.”

In the hearing, which had been tabled at meetings in September and October, attorneys for Marino, the town and the Keaches made arguments about whether the ZBA had jurisdiction in the appeal — which the ZBA decided it did — and whether the property could be grandfathered by the town manager via a settlement.

Prior to the 2022 regulations, the 1971 zoning ordinance allowed for “accessory,” or secondary uses of single-family homes in the shoreline district. In settling its suit with the Keaches, the town determined the property could be grandfathered because their short-term rental business, which began before the 2022 ordinance was enacted, was secondary to their use of the property as a vacation home.

In communications with the town last year, Douglas Keach asserted that the primary use of the property had been as a second home, with renting as a way to cover tax and mortgage expenses. He also listed sections of time, totaling about six weeks, his family had been living there.

“We don’t rent it that much honestly,” Keach wrote. “It’s a place for us all to get away and relax and enjoy the amazing outdoors and scenery that the lakes regions provides.”

Keach also provided the town with a list of reservations made at the home during 2021 and 2022.

“In the year before this town adopted the zoning amendment regulating short-term rentals, the Keaches rented the property for 87 nights,” the town’s attorney, Laura Spector-Morgan, told the ZBA. “The fact that that might occur year-round doesn’t make it any less of an accessory use. The Keaches use the property as a vacation home, and when they are not there, they rent it out.”

That fact was disputed by Marino, his neighbors and his attorney, Rachel Hampe. The Keaches could not be using the house as a second home, Marino and his neighbors said, because they own a real estate investment business and because few neighbors claimed to have ever seen or met the couple. Hampe also referred to the Airbnb records provided to the town by the Keaches, which she claimed showed they had rented the property on nights they previously had claimed to have been living there.

The Meredith home appears to be the Keaches’ only listing on Airbnb.

“This is not a single-family home. This is a commercial business,” Hampe said. “Why didn’t the town attempt to verify any information provided by the Keaches by running it by Mr. Marino and his neighbors? If it had, they would have confirmed that the property is being rented on a short-term basis all year round.”

But whether the Keaches had indeed primarily used their Black Cove house as a vacation home — and the chair acknowledged there was room for doubt about that — was not up to the board to decide, the zoning board said. They determined a short-term rental could be grandfathered, as took place in the settlement, if it was an accessory use of the home prior to the 2022 zoning amendment.

“We can only talk about whether or not, prior to 2022 adoption of a specific special exception for short term rentals, were short-term rentals allowed as an accessory use,” Jutton said. “And I can find no evidence to the contrary. I believe they were. I believe it was a common occurrence throughout the town.”

Marino, his family and other members of the public made an emotional appeal to the ZBA, citing how crude and disruptive the short-term renters had been. The police were powerless to intervene, they recounted, because noise ordinances in the town lacked teeth. They wondered how this property, which Hampe called “the worst-case scenario” of short-term rentals, could be grandfathered out of the ordinance designed to prevent it.

“There’s an old saying in the law: ‘If the facts are on your side, argue the facts. If the law is on your side, argue the law. If neither the facts nor the law are on your side, pound your fist on the table and scream as loud as you can,’” Spector-Morgan said at the hearing. “And that’s what you’ve heard tonight.”

“I appreciate the concerns about noise and parking and trash, I do. But you can have inconsiderate, miserable neighbors that you live next to 24/7, 365 and there’s not a darn thing that can be done about it,” she continued.

The ZBA spoke with counsel behind closed doors for just over 20 minutes before returning to chambers for deliberation, which lasted about half that time.

Town Manager Troy Brown did not respond to requests for comment. Marino and the Keaches, reached via their attorneys, declined to provide comment for this story.

If he disagrees with the ZBA’s decision, Marino has to appeal their decision before he could take his challenge to court. Marino and his neighbors also successfully filed to intervene in the case the town settled with the Keaches. That case currently awaits further action from the court.

These articles are being shared by partners in The Granite State News Collaborative. For more information visit collaborativenh.org.