The Rhode Island Superior Court denied motions to dismiss several cases of violations against Newport’s short-term rental regulations last week, but the lawyer who argued against them said these cases aren’t stopping any time soon.
“It’s definitely an ongoing problem and ultimately, this issue is maybe something that the Supreme Court eventually decides one way or another, just because these cases are continuing and there are more cases pending,” Attorney Michael Mineau said.
At Newport County Superior Court on Jan. 26, Judge William Carnes Jr. denied three property owner’s motions to dismiss their Newport Municipal Court cases which ruled that they violated the city’s short-term rental ordinance. The ordinance prohibits short-term rentals in residential zones and requires short-term rental owners to register their properties with the city.
“We certainly agree, with and are pleased by, the Judge’s decision as we believe that municipalities should have the right to regulate land use pursuant to the Zoning Enabling Act,” Newport Communications Manager Tom Shevlin said in a statement. “Beyond that, however, we can’t offer further comment until the appeals process plays out.”
The guest houses of two of the defendants, 6365 Fourth Avenue Corp of White Plains, New York, and George McGown of Newport, were condominiums in the same building: 33 Howard St., Units 1 and 3 respectively. The third defendant, Chubby Hospitality of Somerville, Massachusetts, was only responsible for one of the cases heard by the court, for its property on Dixon Street.
Mineau, who represented each of the defendants at Newport Superior Court, argued for all six cases to be dismissed and for the criminal charges to be vacated because the city’s ordinance on short-term rentals is preempted by state law. The state law in question, 42-63.1-14 (a), states that municipalities shall not prohibit property owners from renting their properties for tourist use on hosting platforms.
In March 2022, Newport City Council prohibited the use of properties in all residential zones as short-term rentals. In court, Mineau argued that by imposing this restriction, the city of Newport effectively prohibited the property owners from renting their spaces on hosting platforms, therefore violating state law.
However, according to the decisions from each case, the city of Newport argued the ordinance isn’t preventing property owners from renting out their spaces, but rather that the city is regulating its zoning uses, which it is allowed to do under the Rhode Island Zoning Enabling Act of 1991. In its analysis, the Court stated it does not interpret the state’s short-term rental as restricting a municipality’s ability to determine zoning uses related to short-term rentals.
“It is crucial to interpret § 42-63.1-14 in a manner that respects the established principle of not undermining municipal zoning authority afforded under the Zoning Enabling Act,” the Superior Court decision reads. “If this Court were to interpret § 42-63.1-14 as Defendant argues, this Court would have to find—by implication—that the City has no control over “guest house” and “transient guest facilities” uses.”
Mineau also argued that the city’s ordinance is regulating a field, short-term rentals, that is “fully occupied by state law. However, the Court states in its decision that the “short and plain” reading of the state’s law does not suggest the state has exclusive control over regulating short term rentals, nor is there any intent to establish it as the exclusive registration requirement for short term rentals.
“While this provision clearly curtails municipal powers over the advertising of short-term rentals, nothing within the plain language of the statute evinces an intent of the General Assembly to explicitly override all zoning ordinances or authorize short-term rentals in every zoned district statewide,” the decision reads.
In 2024:Newport City Councilors want to keep more tourism money in town. Can legislators help?
The issues decided on by the Superior Court are not the only problems Mineau has with how Newport enforces its short-term rentals. He said the city uses the aggregation software Host Compliance, which pulls advertisements from websites like AirBnb and VRBO to determine if a property is being used as a short-term rental, however, Mineau said these advertisements could be old or inaccurate. Additionally, he argued the presence of an ad on a hosting platform does not necessarily mean guests are checking in.
“The burden of proof the city has in each of these cases, even in municipal court where the rules of evidence are obviously much more lax, because the city has to hunt down tourists who may have visited Newport for a weekend or something,” Mineau said. “It’s difficult for the city to get in contact with the folks or convince them to testify, even remotely.”
Mineau said his clients are still deciding what to do, but the cases are expected to go to trial.