15 Langsford Owner LLC v. Town of Kennebunkport

MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2024 ME 79

Docket: Yor-23-265

Argued: March 7, 2024

Decided: December 19, 2024

Panel: STANFILL, C.J., and MEAD and HORTON, JJ., and HJELM and HUMPHREY, A.R.JJ.

15 LANGSFORD OWNER LLC

v.

TOWN OF KENNEBUNKPORT

HORTON, J.

[¶1] The Town of Kennebunkport appeals from a judgment of the

Superior Court (York County, Mulhern, J.) vacating the Town’s denial of

applications by 15 Langsford Owner LLC (15 Langsford) for licenses under the

Town’s Short-Term Rental Ordinance (STRO). In enacting the STRO, the Town

did not include any provision allowing an appeal from the denial of a license

application, see Kennebunkport, Me., Code ch. 129 (current through

June 6, 2022), so we must determine whether the denial of 15 Langsford’s

applications is subject to direct review under Rule 80B of the Maine Rules of

Civil Procedure, which ordinarily provides the “exclusive process” for judicial

review of municipal permitting and licensing decisions, Gorham v.

Androscoggin Cnty., 2011 ME 63, ¶ 22, 21 A.3d 115. We conclude both that the

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Town’s decision is reviewable pursuant to Rule 80B and that 15 Langsford was

entitled to the permits based on the undisputed facts and the terms of the STRO.

We therefore affirm the judgment of the Superior Court.

I. BACKGROUND

[¶2] “The following facts are drawn from the Superior Court’s decision

and are supported by the record.” Hurricane Island Found. v. Town of

Vinalhaven, 2023 ME 33, ¶ 2, 295 A.3d 147. Between December 2020 and

June 2021, 15 Langsford acquired eleven condominium units in

Kennebunkport. Units one through nine are contained within a single

structure, and units ten and eleven each occupy a freestanding structure. Each

unit has one or more bedrooms, a kitchen, a living area, and at least one

bathroom. Before 15 Langsford acquired the units, the freestanding units

received Town approval as residential single-family dwellings and the

structure containing units one through nine was approved as a legally

nonconforming residential multiplex dwelling under the Town’s Land Use

Ordinance (LUO).1 See Kennebunkport, Me., Code §§ 240-2.2, -4.10, -7.11

(Nov. 6, 2018). The units were governed by a Declaration of Condominium,

1The multiplex is legally nonconforming because it contains nine residential dwelling units

despite the LUO’s limitation of multiplex dwellings to eight units. Kennebunkport, Me., Code

§ 240-7.11(A) (Nov. 6, 2018).

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which required that they be used for “residential purposes” and prohibited

rentals “for transient or hotel purposes.”

[¶3] In April 2021, 15 Langsford began renting the units exclusively for

occupancy for periods of less than thirty consecutive days. At that time, the

Town did not regulate short-term rentals of residential property. The units

were offered for rent on the website of 15 Langsford’s parent company, which

manages and operates the units and other resort properties in Kennebunkport.

The parent company’s website, which describes the parent company as offering

“the best inns, resorts, and hotels in Kennebunkport,” acts as a booking

platform for 15 Langsford’s units and the parent company’s other properties.

In addition to using a shared platform to book reservations at the units,

short-term rental guests at the units receive access to amenities offered by the

parent company at its other properties.

[¶4] Also in April 2021, the Town contacted 15 Langsford, stating that it

believed that 15 Langsford was violating the LUO and the Declaration of

Condominium by using the units for transient rentals. The Town explained in

May 2021 that it viewed the rentals as “part of a larger commercial hospitality

enterprise” operating without Planning Board approval required by the LUO.

Without issuing a formal notice of violation, the Town recommended that

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15 Langsford seek Planning Board approval pursuant to the LUO for use of the

units as a “commercial lodging use” and comply with the Declaration of

Condominium prohibition on transient rentals.

[¶5] In response, on June 15, 2021, 15 Langsford amended the

Declaration of Condominium to eliminate the prohibition on transient rentals

and applied for Planning Board approval for use of the units as a hotel.

[¶6] Also in June 2021, the Town began regulating short-term rentals

through a licensing ordinance to “require the disclosure and licensing of

short-term rentals operated within the Town of Kennebunkport,” impose

“modest performance standards,” and limit the number of short-term rentals in

the Town. Kennebunkport, Me., Code § 129-1. Under the STRO, “[l]egally

existing residential dwelling units may be used as short-term rentals upon the

issuance of a short-term rental license,” but certain “lodging establishment

uses,” including uses for hotels and inns, are not eligible for STRO licenses. Id.

§ 129-2(A), (C). The STRO lacks any provision for appeals of decisions denying

STRO licenses.2

[¶7] In November 2021, 15 Langsford contacted the Town’s code

enforcement officer (CEO) about obtaining short-term rental licenses for its

2 The ordinance provides a right of appeal only from the suspension or revocation of a STRO

license. See Kennebunkport, Me., Code § 129-8(D) (current through June 6, 2022).

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units under the STRO. The CEO reiterated the Town’s position that

15 Langsford was using the units as a hotel or inn and, therefore, 15 Langsford

would not be eligible to receive short-term rental licenses. Nonetheless,

15 Langsford submitted an application for a short-term rental license for each

of its eleven units. It also withdrew its application for Planning Board approval

for use of the units as a hotel.

[¶8] On May 12, 2022, the CEO issued letters denying each of the eleven

applications because the units were not “[l]egally existing residential dwelling

units” eligible to receive short-term rental licenses. Id. § 129-2(A). The CEO’s

letters reasoned that 15 Langsford had operated, advertised, and managed the

units as “a commercial lodging establishment (e.g., an inn) under the unified

management, control, and/or ownership of a hospitality business,” without

Planning Board approval, “in violation of Town ordinances.”

[¶9] On June 7, 2022, 15 Langsford filed complaints in the Superior Court

pursuant to Rule 80B and the Uniform Declaratory Judgments Act, 14 M.R.S.

§§ 5951-5963 (2024), seeking review of the CEO’s denial of the license

applications.3 The court (Douglas, J.) consolidated the appeals and, following

3 15 Langsford’s request for declaratory relief and, in part, its request for Rule 80B relief focused

on alleged constitutional infirmities regarding the STRO. 15 Langsford’s facial challenges were

dismissed, and the Superior Court concluded that its as-applied challenges lacked merit.

15 Langsford argues these constitutional issues only as alternative grounds to affirm the judgment.

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oral arguments, the court (Mulhern, J.) entered a judgment on June 13, 2023,

concluding that the CEO erred as a matter of law by determining that units

rented by 15 Langsford were not “[l]egally existing residential dwelling units”

within the meaning of section 129-2 of the STRO. Citing Rule 80B, the Superior

Court vacated the decision of the CEO denying 15 Langsford’s applications for

short-term rental licenses, and the Town timely appealed to us. See M.R.

Civ. P. 80B(n); M.R. App. P. 2B(c)(1).

II. DISCUSSION

[¶10] We first explain the basis for the trial court’s jurisdiction to

consider the Town’s petition and then review 15 Langsford’s eligibility for the

short-term rental licenses.

A. The Basis for the Superior Court’s Jurisdiction

[¶11] We begin by identifying and examining the jurisdictional issues

presented by the anomalous absence of a provision in the STRO that would

allow an appeal from the denial of a license application.

Because we affirm the judgment based on our construction of the ordinances, we do not reach the

constitutional issues. See Jackson v. Inhabitants of Town of Searsport, 456 A.2d 852, 854 n.10

(Me. 1983) (“A court should avoid expressing opinions on constitutional law whenever a

nonconstitutional resolution of the issues renders a constitutional ruling unnecessary.” (alteration

and quotation marks omitted)).

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[¶12] In Maine, Rule 80B of the Maine Rules of Civil Procedure is

ordinarily the exclusive procedural vehicle for judicial review of municipal

permitting and licensing decisions. Gorham, 2011 ME 63, ¶ 22, 21 A.3d 115

(“[W]hen direct review is available pursuant to Rule 80B, it provides the

exclusive process for judicial review unless it is inadequate.”). However,

Rule 80B itself does not confer jurisdiction to review a municipal action; it

simply prescribes the procedure for judicial review when there is a separate

basis for such jurisdiction. Lyons v. Bd. of Dirs. of Sch. Admin. Dist. No. 43, 503

A.2d 233, 235 (Me. 1986) (“Rule 80B does not create an independent right to

appeal any governmental action to the Superior Court. It only provides a

procedural avenue for those disputes in which the court has jurisdiction.”).

Rule 80B itself defines the sources of jurisdiction to review a decision, stating

that it applies when review “is provided by statute or is otherwise available by

law.” M.R. Civ. P. 80B(a). Review is “otherwise available by law” under

Rule 80B(a) “if it is in the nature of that formerly available under the common

law extraordinary writs, such as certiorari, mandamus or prohibition, adapted

to current conditions.” Dowey v. Sanford Hous. Auth., 516 A.2d 957, 959-60

(Me. 1986) (quotation marks omitted); see M.R. Civ. P. 81(c) (“The writs of scire

facias, mandamus, prohibition, certiorari, and quo warranto are abolished.

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Review of any action or failure or refusal to act by a governmental agency,

including any department, board, commission, or officer, shall be in accordance

with procedure prescribed by Rule 80B.”).

[¶13] We have not regularly had to examine the common law writs to

consider jurisdiction over actions governed by Rule 80B because review of

decisions made under municipal ordinances is often available by statute. For

example, if an ordinance provides for decisions by the municipality’s CEO,

planning board, or other decision-maker to be appealed to the municipal board

of appeals, judicial review of the board of appeals’s decision is available by

statute. 30-A M.R.S. § 2691(1), (3)(G), (4) (2024). A different statute provides

that “municipal land use decisions” issued pursuant to land use ordinances are

appealable to the Superior Court pursuant to 30-A M.R.S. § 4482-A (2024).

[¶14] The absence in the STRO of any procedure allowing appeals to the

Town zoning board of appeals (ZBA) rules out jurisdiction by virtue of

30-A M.R.S. § 2691. Jurisdiction under 30-A M.R.S. § 4482-A is doubtful at best

because the Town has designated a different ordinance as its land use

ordinance (LUO), Kennebunkport, Me., Code ch. 240, and has elected to regulate

short-term rental licensing separately under the STRO, id. ch. 129. The Town’s

LUO does include provisions for appeals to the ZBA and then to Superior Court,

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id. §§ 240-9.2(A)(1), -9.3(L), thereby establishing jurisdiction for Rule 80B

review by virtue of 30-A M.R.S. § 2691 and 30-A M.R.S. § 4482-A. However, the

Town did not include any provision in the STRO incorporating the LUO’s appeal

process.

[¶15] Neither the Superior Court nor the parties in their briefs to us

addressed the basis for the court’s jurisdiction. Nevertheless, because we

cannot confirm statutory jurisdiction for Rule 80B review, we must consider

whether Rule 80B review of the CEO’s denial is “otherwise available by law” by

virtue of the jurisdiction conferred by any of the common law writs. Dowey,

516 A.2d at 959 (“[I]f a jurisdictional question exists, we will not hesitate to

address it on our own motion.”). After hearing oral argument in this matter, we

requested that the parties submit supplemental briefing regarding whether,

pursuant to M.R. Civ. P. 80B(a), judicial review of the CEO’s decision “is

provided by statute or is otherwise available by law.”

[¶16] In response to our request for supplemental briefing, neither party

advanced a statutory argument for Rule 80B review. The Town did not address

whether review is “otherwise available by law” and argued that the Superior

Court lacked jurisdiction because there is no statutory basis for Rule 80B

review. 15 Langsford argued that review pursuant to Rule 80B is “otherwise

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available by law” because the CEO’s denial of its applications was an

adjudicatory decision of the kind formerly subject to judicial review by virtue

of the writ of certiorari.

1. Judicial Review “Otherwise Available by Law” Before Adoption

of Rule 80B

[¶17] Until they were abolished by an amendment to Rule 81 of the

Maine Rules of Civil Procedure in 1967, see M.R. Civ. P. 81(c); M.R. Civ. P. 81

Advisory Committee’s Note December 31, 1967, the common law writs of

mandamus, certiorari, and prohibition enabled judicial review of governmental

action in various contexts. “Prohibition was issued only under extreme

necessity ‘to direct any inferior tribunal to cease abusing its power or usurping

judicial functions that did not rightly belong to it.’” Lyons, 503 A.2d at 236 n.3

(quoting Field & McKusick, Maine Civil Practice § 81.6 at 617 (1st ed. 1959)).

The two writs under which courts usually reviewed decisions of governmental

officers and agencies were the writ of certiorari and the writ of mandamus, with

certiorari functioning as the vehicle for judicial review of governmental

decisions involving a discretionary and quasi-judicial adjudication of rights,

Carter v. Wilkins, 160 Me. 290, 293-94, 203 A.2d 682, 683-84 (1964);

Cunningham v. Kittery Planning Bd., 400 A.2d 1070, 1077 (Me. 1979), and

mandamus functioning to compel the performance of a ministerial act, Casco

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N. Bank, N.A. v. Bd. of Trustees of Van Buren Hosp. Dist., 601 A.2d 1085, 1087

(Me. 1992); see also Carroll v. City of Portland, 1999 ME 131, ¶ 9 n.6, 736 A.2d

279 (construing “ministerial” to mean “of or designating a mandatory act or

duty admitting of no personal judgment or discretion in its performance“

(alteration and quotation marks omitted)). We have summarized when

mandamus is and is not available to compel governmental action:

When the law requires the public officer to do a specified act, in a

specified way, upon a conceded state of facts, without regard to his

own judgment as to the propriety of the act, and with no power to

exercise discretion, the duty is ministerial in character and

performance may be compelled by mandamus if there is no other

remedy. When, however, the law requires a judicial determination

to be made, such as the decision of a question of fact, or the exercise

of judgment in deciding whether the act should be done or not, the

duty is regarded as judicial and mandamus will not lie to compel

performance.

Young v. Johnson, 161 Me. 64, 70, 207 A.2d 392 (1965) (quotation marks

omitted).

[¶18] Similarly, we have explained the context in which review by

certiorari applies: “Whether an act is judicial or quasi-judicial so as to be

reviewable by certiorari depends on the nature of the act performed, rather

than on the character of the officer or body performing it. Judicial action is an

adjudication on the rights of the parties who, in general, appear or are brought

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before the tribunal by notice or process, and on whose claims some decision or

judgment is rendered.” Lyons, 503 A.2d at 236.

2. The Common Law Basis for Review of a Refusal to Perform the

Ministerial Act of Issuing a Permit or License

[¶19] Because the nature of the decision, rather than the identity of the

decision maker, dictated which common law writ was the vehicle for review,

we next examine the nature of the CEO’s decision to deny 15 Langsford’s permit

applications. A CEO’s decisions under an ordinance can be either discretionary

or ministerial, depending on whether the decisions involve discretionary

determinations of fact or non-discretionary applications of the ordinance. In

situations in which a CEO has made a discretionary factual determination in a

non-adjudicatory manner, i.e., without affording notice and opportunity to be

heard or making findings of fact sufficient to enable judicial review, we have

remanded the matter for the CEO to convene a proceeding and render findings

of fact. See Mills v. Town of Eliot, 2008 ME 134, ¶ 20, 955 A.2d 258; 29 McKown

LLC v. Town of Boothbay Harbor, 2022 ME 38, ¶ 13, 277 A.3d 364. In Mills, for

example, the CEO’s issuance of the disputed building permit required factual

determinations, but the CEO’s “only determination was his decision to issue the

building permit.” Mills, 2008 ME 134, ¶ 18, 955 A.2d 258. We therefore

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“remand[ed] the case to the CEO to make sufficient and clear findings of fact

relevant to the issuance of the building permit at issue in th[e] case.” Id. ¶ 20.

[¶20] The STRO provides, “If the Town Clerk, or the Town Clerk’s

designee, in consultation with” the CEO reviews an application and “determines

that the proposed short-term rental application complies with the short-term

rental standards, the Town Clerk shall issue the applicant a short-term rental

license.” Kennebunkport, Me., Code § 129-5(F). Whether a proposed rental

complies with all ordinance standards might in some cases involve issues of

fact, but here, as the court noted, there were no disputed issues of fact that

required the CEO to find facts in an adjudicatory capacity and make a

discretionary determination.4 The only issue before us—whether the units

meet the STRO’s definition of “[l]egally existing residential dwelling units”—

centers solely on the interpretation of the ordinance, which the court properly

addressed de novo, without deference to the CEO’s interpretation. Id.

§ 129-2(A); see, e.g., Tominsky v. Town of Ogunquit, 2023 ME 30, ¶ 22, 294 A.3d

4 The STRO requires that applicants pay an application fee and submit information regarding the

location of the property, contact information for property owners, and documentation that the

property meets performance standards involving building safety, sanitary waste disposal, and

parking. Kennebunkport, Me., Code §§ 129-5(A), (B), -6, -7. The parties do not dispute that

15 Langsford submitted the required materials and demonstrated compliance with the STRO

performance standards. There is likewise no disagreement that the units had been made

commercially available for short-term occupancy before the STRO’s enactment, the question being

whether they were being operated at the time as a hotel or inn as those terms are used in the LUO.

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142. The purely legal nature of the issue means that, if the CEO’s interpretation

of the STRO was incorrect, the grant of licenses to 15 Langsford would be a

ministerial, non-discretionary act that 15 Langsford is entitled to require the

CEO to perform.

[¶21] “It is well settled that a writ of mandamus can issue against a public

officer or body to compel performance when the petitioners have a clear legal

right to the performance of the specific act sought to be compelled, and the

defendants have a clear legal duty to perform such act, and the act is

ministerial.” 5 Patricia E. Salkin, American Law of Zoning § 43:1 (5th ed.),

Westlaw (database updated Nov. 2024). Accordingly, before the advent of

Rule 80B, we endorsed the use of mandamus to compel the ministerial issuance

of a municipal building permit after it was denied:

Mandamus is available to the landowner to compel the

administrative officer to do his duty as required by law. Perhaps

the most frequent group of cases where mandamus is employed by

landowners is where the building inspector refuses a permit which

he ought lawfully to grant.

Casino Motor Co. v. Needham, 151 Me. 333, 339-40, 118 A.2d 781, 784 (1955)

(emphasis added and quotation marks omitted).5

5 Mandamus was historically not available to compel the performance of an act if the required act

had already been performed. See State ex rel. Martin v. Greene, 129 N.E.3d 419, 421 (Ohio 2019)

(“Mandamus will not lie to compel an act that has already been performed.” (quotation marks

omitted)); State ex rel. Cassel v. Johnston, 185 N.E. 278, 279 (Ind. 1933) (“[A]s the office of the writ of

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[¶22] For these reasons, we conclude that direct review of the CEO’s

denial of 15 Langsford’s applications pursuant to Rule 80B is “otherwise

available by law” by virtue of the common law writ of mandamus, see Your

Home, Inc. v. City of Portland, 505 A.2d 488, 489 (Me. 1986) (“An action

pursuant to Rule 80B may lie where the extraordinary writ of mandamus was

formerly available.”).

B. 15 Langsford’s Eligibility for Short‐Term Rental Licenses

[¶23] “The interpretation of a local ordinance is a question of law, and

we review that determination de novo.” Rudolph v. Golick, 2010 ME 106, ¶ 8, 8

A.3d 684 (quotation marks omitted). When construing an ordinance, we will

not redefine terms that the ordinance expressly defines, id. ¶ 9, and we will look

to the plain, common meaning of undefined terms “unless the context clearly

mandate is to compel action, it will not issue if the duty sought to be enforced has already been

done.”). If the required act is a discretionary one, “[p]ublic officers can be directed to act, but not how

to act,” and once they have acted, review through mandamus is no longer available, although review

through certiorari may be. Rogers v. Brown, 135 Me. 117, 119, 190 A. 632, 633 (1937). However, if

the required act is “ministerial, then the mandamus will direct the specific act to be performed.” Id.

(emphasis added). Thus, if the required ministerial act is the grant of a permit or license, a denial or

refusal of the permit or license does not render mandamus unavailable because the required “specific

act” has yet to be performed. See Casino Motor Co. v. Needham, 151 Me. 333, 339-40, 118 A.2d 781,

784 (1955). Here, the act that 15 Langsford seeks to compel the CEO to perform is not to act on its

license applications, which the CEO has already done, but to grant the licenses, which the CEO has

affirmatively declined to do. See Kelly v. Curtis, 287 A.2d 426, 429 (Me. 1972) (indicating that

mandamus would lie to compel ministerial action when an action had been taken but was legally

incorrect). Because there are no factual issues requiring a discretionary determination, the grant of

the licenses would be a ministerial act, assuming 15 Langsford’s interpretation of the STRO is correct.

Accordingly, the CEO’s denial of 15 Langsford’s application does not preclude judicial review in the

nature of mandamus.

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indicates otherwise,” Jade Realty Corp. v. Town of Eliot, 2008 ME 80, ¶ 9, 946

A.2d 408 (quotation marks omitted). We construe ordinance terms

“reasonably with regard to both the objectives sought to be obtained and the

general structure of the ordinance as a whole.” Id. (quotation marks omitted).

[¶24] The STRO’s stated purposes are “to require the disclosure and

licensing of short-term rentals” in the Town and to “monitor and track” their

proliferation to avoid unduly burdensome effects on the Town’s

neighborhoods. Kennebunkport, Me., Code § 129-1. Under the ordinance,

“[l]egally existing residential dwelling units may be used as short-term rentals

upon the issuance of a short-term rental license for the premises in accordance

with the requirements” of the STRO. Id. § 129-2(A). “Short-term rental” under

the ordinance is defined, circularly, as “[t]he use, control, management or

operation of a legally existing residential dwelling unit offered for rent for

transient occupancy for dwelling, sleeping or lodging purposes by short-term

rental guests for a tenancy of less than 30 consecutive days, for compensation,

directly or indirectly, excluding,” among other establishments, hotels and inns.

Id. § 129-3.

[¶25] Without a license, short-term rental of any property is prohibited.

Id. §§ 129-2(B)(1), -4(A). Additionally, certain “lodging establishment uses,”

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including uses as hotels and inns, are exempt from the ordinance and do not

need short-term rental licenses to operate. Id. § 129-2(C).

[¶26] The STRO contains a transitional provision for licensing properties

that were used for short-term rentals before the Town enacted the ordinance.

Id. § 129-5(E). That provision provides, in relevant part, that “[p]ersons or

entities who operated a legally existing residential dwelling unit as a short-term

rental” prior to the effective date of the STRO must obtain a short-term rental

license and must demonstrate that “the premises were previously used for

short-term rental use . . . for a period of less than 30 consecutive days per

tenancy and for at least 14 total days” in 2019, 2020, or 2021.6 Id.

[¶27] The STRO does not define “legally existing residential dwelling

unit,” the term at the crux of the parties’ dispute.

[¶28] 15 Langsford contends that because the units had been approved

as single-family and multiplex residential dwellings under the LUO when

15 Langsford began offering them for transient occupancy, and because a

property must have been used for transient occupancy for commercial gain

prior to enactment of the STRO in order to be eligible to receive a short-term

rental license, the units were “legally existing residential dwelling units” during

6 The record demonstrates, and the parties do not dispute, that in 2021 15 Langsford rented each

unit for at least fourteen days but for fewer than thirty consecutive days per tenancy.

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the time that 15 Langsford offered them as short-term rentals. In addition,

15 Langsford contends that how a property is managed or advertised is not

relevant to whether a property is eligible for a short-term rental license under

the STRO.

[¶29] The Town argues that 15 Langsford’s units were not “legally

existing residential dwelling units” under the STRO because when the units

were offered for short-term rental prior to enactment of the STRO,

15 Langsford was operating as a hotel or inn in violation of the LUO, and the

units therefore were neither “legally existing” nor “residential.” In support of

this argument, the Town emphasizes that 15 Langsford is owned by an entity

that manages resort properties, that the units were advertised in concert with

those resort properties, and that guests renting the units received access to the

resort properties.

[¶30] Under the LUO, a hotel is a “building or group of buildings having

10 or more guest rooms in which lodging or meals and lodging are offered for

compensation.” Kennebunkport, Me., Code § 240-2.2. Similarly, an inn is a

“business establishment having nine or fewer guest rooms in which lodging is

offered to guests for compensation.”7 Id. We have recognized that hotels and

7At various times throughout 2021, 15 Langsford had between nine and eleven units available

for rent.

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similar uses under similar definitions are characterized by transient occupancy,

and the Town has, in line with these definitions, chosen to define hotels and

inns with reference to “guest rooms.” See Jordan v. City of Ellsworth, 2003 ME

82, ¶ 10, 828 A.2d 768.8 In contrast, the STRO defines “dwelling unit” as “[o]ne

or more rooms arranged for complete, independent housekeeping purposes

with space for living and sleeping; space or facilities for eating or cooking; and

provisions for sanitation.” Kennebunkport, Me., Code § 129-3.9

[¶31] Each of 15 Langsford’s units contains a living space, a kitchen, at

least one bedroom, and at least one bathroom. They are plainly more than

“guest rooms” and are arranged and intended for “complete, independent

housekeeping purposes,” i.e., residential occupancy. See, e.g., Town of Conway

v. Kudrick, 301 A.3d 823, 829 (N.H. 2023); Heef Realty & Invs., LLP v. City of

8 In Jordan v. City of Ellsworth, we affirmed a town planning board determination that a multi-unit

property used for a mix of short-term and long-term tenancy was not a hotel. 2003 ME 82, ¶¶ 3, 13,

828 A.2d 768. Although, as the Town notes, we recognized in Jordan the nuanced distinction between

residential dwelling units and hotels, that decision, which focused in part on whether an occupant’s

residence was temporary, does not control the outcome of this appeal. Id. ¶ 12. Here, unlike in

Jordan, the Town has effectively conferred the right to short-term rental licenses upon 15 Langsford’s

units by defining the terms “hotel” and “inn” in terms of “guest rooms,” Kennebunkport, Me., Code

§ 240-2.2, thereby excluding 15 Langsford’s units—which are not “guest rooms”—from those

definitions, and by deeming “[l]egally existing residential dwelling units” such as Langsford’s eligible

for licenses under the STRO, id. § 129-2(A).

9 Although it is the STRO’s definition that determines eligibility for short-term rental licenses, the

LUO has a similar definition of “dwelling unit” as “[o]ne or more habitable rooms arranged, designed

or intended to be used, or used[,] as a complete housekeeping unit . . . with independent living,

cooking, sleeping, bathing and sanitary facilities.” Kennebunkport, Me., Code § 240-2.2.

20

Cedarburg Bd. of Appeals, 861 N.W.2d 797, 801-02 (Wis. Ct. App. 2015); cf.

Morgan v. Townsend, 2023 ME 62, ¶¶ 21-23, 302 A.3d 30 (recognizing that “the

word ‘residential’ in the context of deed restrictions” generally does not

preclude short-term rentals).10 They have never been within the LUO

definitions of “hotel” and “inn” and were not in violation of the LUO.11 Instead,

they were legally existing residential single-family and multiplex dwellings as

defined in the LUO and the STRO, and were used for short-term rentals during

the period required to qualify for STRO licenses. See Kennebunkport, Me., Code

§§ 129-3, -5(E), 240-2.2. Because the Town’s only reason for denying

15 Langsford’s applications for short-term rental licenses is that the units had

supposedly been operated as a hotel or inn in violation of the LUO, 15 Langsford

is entitled to the licenses.

The entry is:

Judgment affirmed.

10 The Town relies on Morgan v. Townsend, 2023 ME 62, 302 A.3d 30, to distinguish between

residential and commercial use. In that case, however, we expressly declined to conclude that

short-term rentals are inconsistent with residential use and instead held that the use made of the

property was impermissible because a restrictive covenant prohibited “trade or business” from being

conducted on the property. Id. ¶¶ 3, 21-23, 26, 33. In the instant case, there is no similar blanket

prohibition on the use of residential property for a commercial purpose; in fact, the STRO requires

that residential property have been previously rented for commercial gain to qualify for a short-term

rental license. Kennebunkport, Me., Code §§ 129-3, -5(E).

11 In addition, although the Town suggests that 15 Langsford’s use of the units was improper

because the Declaration of Condominium governing the units prohibited transient rentals, each unit

was rented, as required by the STRO, for at least fourteen days in 2021 after 15 Langsford amended

the Declaration to remove the prohibition.

21

Amy K. Tchao, Esq. (orally), Melissa A. Hewey, Esq., and Oliver Mac Walton, Esq.,

Drummond Woodsum, Portland, for appellant Town of Kennebunkport

Daniel J. Murphy, Esq. (orally), Bernstein, Shur, Sawyer & Nelson, P.A., Portland,

for appellee 15 Langsford Owner LLC

York County Superior Court docket number AP-2022-17

FOR CLERK REFERENCE ONLY