MASHPEE ZONING BOARD OF APPEALS
MINUTES
JULY 14, 2010
The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, July 14, 2010, at the Mashpee Town Hall. Board Members Robert G. Nelson, Jonathan Furbush, William Blaisdell, James Reiffarth and John M. Dorsey, along with Associate Members Peter Hinden and Ronald S. Bonvie were present. Building Commissioner Richard Stevens was also present. Attorney Jena Caruso (Town Counsel) from the law offices of Louison, Costello, Condon & Pfaff, LLP was in attendance.
PUBIC HEARINGS
Chairman Robert G. Nelson opened the July 14, 2010 ZBA Public Hearings at 6:02 p.m. Clerk James Reiffarth moved to immediately adjourn to Executive Session. See attached Roll Call Vote.
EXECUTIVE SESSION – 6:00 p.m.
Pending Litigation: Affordable Housing Association of New England v. Town of Mashpee Zoning Board of Appeals – Barnstable Superior Court Case Number BACV 2008-00517. Executive Session ended at 6:55 p.m.
OPEN SESSION – 7:00 p.m.
Public Hearings were reconvened at 7:00 p.m. by Chairman Robert G. Nelson.
ANNUAL REORGANIZATION
Mr. Nelson said that he had conferred with Town Counsel and all members of the Board can nominate and vote in the annual reorganization. He said that the only restriction is that Associate Board Members cannot be nominated for any of the three positions.
Mr. Furbush made a motion to nominate Mr. Robert G. Nelson for the position of Chairman. Mr. Blaisdell seconded the motion. All were in favor.
Mr. Dorsey nominated Mr. Furbush for the position of Vice Chairman. Mr. Nelson seconded the motion. All were in favor.
Mr. Nelson nominated Mr. Blaisdell for the position of Clerk. Mr. Reiffarth seconded the motion. All were in favor.
CONTINUED HEARINGS
Affordable Housing Association of New England: Requests a Finding of Fact under Section 174-17 of the Zoning By-laws to allow for a year-round motel with nine of nineteen units to be used for occupants staying for intervals greater than thirty days on property located in an R-5 zoning district at 66-72 Main Street (Map 47 Parcel 59) Mashpee, MA. Continued from June 9, 2010 Public Hearings to allow Petitioner the opportunity to submit revised and detailed plans.
Sitting: Robert G. Nelson, Jonathan Furbush, James Reiffarth, William Blaisdell and Ronald S. Bonvie.
Attorney Robert Mills and Mr. Peter White represented the Petition. Attorney Mills congratulated the newly elected officials. He said that the Fire Department had Mr. White remove significant amounts of brush to allow access across the adjacent lot.
Attorney Mills said that the Petitioner was unable to fully comply with all of the requests made by the Board at the previous hearing. He said that he drafted a perpetual easement for the abutting owner of 78 Main Street, Nivaas Corporation of Sharon, Massachusetts, which the owner refused to sign. Nivaas Corporation submitted a letter giving permission for motel and emergency vehicle access across the property at 78 Main Street only for as long as the Corporation owns that property. Attorney Mills said that the Board could revisit this problem in the future should ownership of 78 Main Street change hands.
Attorney Mills referred to the second issue that the Board wanted to have resolved concerning the property abutting the narrow left rear portion of the motel. Attorney Mills said that the abutters are ‘OWNERS UNKNOWN’ and he was unable to secure any permission allowing access through that property. He said that this landlocked property consists of approximately 11,000 square feet with no means of access or egress.
Mr. Nelson read the Fire Department email dated June 28, 2010 from Fire Chief George W. Baker to Mr. Peter White:
“From: George Baker
Sent: Monday, June 28, 2010 3:05 PM
Cc: Sheldon Hamblin
Subject: Fire Department Access La Plaza Del Sol
Mr. White,
I tried to reach you by phone this afternoon but was met each time with a busy signal.
In regards to access issues, due to the fact that you do not have a legal right of way through the adjacent property, and that all other driveways on the property are not wide
enough for fire apparatus ingress, I rule that in accordance with 527 CMR 2507 adequate access does not exist.
I would be happy to meet with you to discuss options regarding improvement in access to your property.”
Mr. White maintained that he has since addressed those issues.
Mr. Furbush read a portion of the email dated July 13, 2010 from Deputy Fire Chief Sheldon Hamblin to the ZBA office:
“From: Sheldon Hamblin
Sent: Tuesday, July 13, 2010 10:47 AM
To: Cynthia Bartos
Subject: La Plaza del Sol
I visited the above property yesterday after receiving a call from Peter White. Mr. White explained that he had done some major trimming on the side driveway of #78 Main Street that leads to the rear of both #78 and #72 (the motel).
I had one of the fire department engines maneuver around the garage of the neighboring property, and it was able to get to the rear portion of the motel.
I advised Mr. White that there should be no parking, particularly under the decks, as a car fire could create a structure fire, and with the type of construction, there would be little chance we could make a stop before it took a major part of the building.
There is still no way our tower could make it around back, little room to work it if it did.~ An elevated water stream would not be feasible in this location due to trees and overhead wires.”
Mr. White said that he has cleared a few more branches and that the tower truck does have access to the property. Mr. White said he has painted “NO PARKING FIRE LANE” on the motel driveway. In his opinion, Mr. White said that the overhead wires are not a problem for the Fire Department since the “Motel is only a one-story motel, so he doesn’t need to have the big truck on that side.”
Mr. Furbush read the second July 13, 2010 email sent at 3:28 p.m. from Deputy Fire Chief Hamblin to the ZBA office:
“From: Sheldon Hamblin
Sent: Tuesday, July 13, 2010 3:28 PM
To: Cynthia Bartos
Subject: FW: Fire Department Access La Plaza Del Sol
Cynthia,
Chief Baker is out of town this week. I was reviewing this file to close it out, and came across this email.
In view of the fact that Chief Baker feels that there is no legal right of way through the adjacent property, and he is not available for discussion, I would ask that the Board of Appeals, not grant Mr. White this variance until Chief Baker returns from his vacation.
I should have sent this to you earlier, sorry.”
Attorney Mills clarified that the Petitioner is not looking for a Variance. Mr. Nelson asked what would happen if the Fire and Police needed access to the motel during a snowstorm in the winter. Mr. Furbush agreed and asked what provisions have been made to plow the driveways during the winter. Mr. White said that he resides on site and ensures access to the motel as a health and safety priority. He said that he is responsible for maintaining the driveway and the right of way. Mr. White said that he plows the motel property and 78 Main Street.
Mr. Nelson said that the permission granted by the Nivaas Corporation would be eliminated as soon as the property at 78 Main Street changes ownership; at which point the motel would be out of business. He said that the Petitioner is asking for permission to travel over a parcel of land that is uncertain without a recordable permanent easement. Mr. Nelson said that the Board is looking for an easement and not a gentleman’s agreement, which is inadequate.
Mr. Dorsey asked if the Board needed to postpone the hearing until Chief Baker has a chance to reply. Mr. Nelson said that it wouldn’t be necessary since Chief Baker has already issued his assessment of the situation. Mr. Nelson said that even the ambulance can’t access the property by the swimming pool area. Mr. White supposed that if a tower truck can gain access, the ambulance should be able to access the property. Mr. Nelson said that the tower truck cannot access the property through the only legal entrance.
Attorney Mills said that he could attempt to obtain a recordable easement from the owner of 78 Main Street, which would only be in effect for as long as Nivaas Corporation owns that property. Attorney Mills said that the Petitioner could return to the Board in the event that 78 Main Street is sold and the subsequent owner does not grant an easement to the Petitioner.
Mr. Nelson referenced the last paragraph of the 10:47 a.m. July 13, 2010 email from Sheldon Hamblin to the ZBA office, which reads:
“In answer to the board's original question, "does the fire department have access", the direct answer is: we can position an engine to the rear of the motel, if no one is parked in the neighbors' driveway. We cannot drive down on the motel property, it just does not provide the width we need to maneuver an engine or even an ambulance down directly beside the office. With care we can enter the parking lot of the upper level, but this is very tight, and again the tower will not make it.
I hope this answers the questions posed.”
Thank you
Sheldon C. Hamblin
Deputy Fire Chief
Mashpee Fire and Rescue
20 Frank Hicks Drive
Mashpee, MA~ 02649
Mr. Nelson said that good public access for emergency vehicles to the subject property does not exist at the moment. Attorney Mills repeated that there is better public safety access than what existed previously. Mr. Nelson said that it is obvious that the Fire Department is still not satisfied with the situation.
Mr. Nelson said the location of the dumpster is not shown on the submitted plan. He asked if the dumpster is 50 feet away from the building, per the code. Mr. White said that this question was raised at the last meeting and he still doesn’t know. Mr. Furbush asked Mr. White to draw a sketch on the plan of the approximate location of the dumpster. Mr. White said that the dumpster is on his property. He also said that there is room for a full-size plow to maneuver between the dumpster and the retaining wall and, in his opinion, an ambulance could fit through that area. Mr. Furbush said that the Board requires that sort of statement in writing from the Fire Department.
Mr. Nelson noticed that the plan does not show any handicap parking spaces. Mr. White claimed that “According to the American for Disabilities Act, small motels of our size don’t have to comply to those and we don’t have any handicap-accessible units at La Plaza del Sol.” He said that: “We’re too small to be part of the ADA requirements, so we’re not required to have handicap units or parking.” Building Commissioner Richard Stevens said that Mr. White is correct because it is a pre-existing motel. Attorney Mills said that, under current zoning, 1.5 parking spaces per unit is required.
Mr. Furbush said that the Petitioner is asking for a change of use. Mr. Nelson said that if the Board did grant the change of use, it could require the units to have sprinkler systems. Attorney Mills said that the Petitioner does not want a change of use, but a Finding of Fact. He said that the change of use to a lodging house was requested ten years ago by New Seabury to house its employees at the motel.
Mr. Nelson reiterated his concerns with health and safety and said that: “These people are entitled to the same rights as everybody else is and I’m not completely satisfied that public safety is being served for these people at the present time.”
Mr. White said that the people staying at the motel for over 30 days are just as safe as the people staying there under 30 days. Mr. Bonvie said that there is an increase of the possibility of fire hazard with increased use of microwaves and ovens by people staying for longer than 30 days. He said that the Board needs to protect everyone staying at the motel.
Mr. White repeated that: “The guests are primarily transient in nature and we’re just trying to compromise with the Town so that in the winter you’ll know that we only have 9 of the 19 units occupied by extended-stay guests.” Mr. Furbush asked if Mr. White meant room nights when he refers to ‘transient in nature’. Mr. White said that he is referring to people, not room nights, and that he plans to continue to operate as a motel. He reiterated that he is trying to “compromise with the Town to reduce the number of people staying over 30 days in the winter” and that 90% of his guests are “transient in nature”.
Mr. Nelson asked how many occupants reside at the motel 365 days a year. Mr. White said that five units are occupied by people who have been there for over a year and eight of the nineteen units are occupied by people who have been there for over 30 days.
Mr. Stevens said that the Petition does constitute a change of use in the building code and is essentially a request for a mixed use of R-1 and R-2. He said that R-2 addresses long-term stays and R-1 addresses short-term stays. Mr. White disagreed and insisted that the state law allows for “long-term guests in motels and hotels” and that this is “not a change of use at all – it’s a compromise.”
Mr. Furbush asked Attorney Caruso to comment. Attorney Caruso said that it is a “matter of nuances” rather than a legal question. She said that the Petitioner is of the opinion that he is “already entitled to have what he is asking for and he is just looking for validation from the Board.” Attorney Caruso said that the Petitioner has applied for extension of a non-conforming use. She said that the Board’s position is that the Petitioner is not entitled to this use and therefore needs a Finding by the Board. Attorney Caruso said that: “From our perspective because this Application has been submitted to us, we’re treating it as a change of use. What they’re saying is that this Application is sort of a moot point in the sense that they believe they’re
entitled to do this already, but they’re looking for validation from you through this Application.” Mr. Nelson said that he has always believed in backing the Building Inspector.
Mr. Nelson said that it’s obvious that the Fire Department has issues with the proposal. Mr. Nelson said that he agrees with Chief Baker who wants a legal easement, a recordable plan, allowing access across 78 Main Street.
Mr. Nelson said that the Petitioner has used abutting property belonging to “OWNERS UNKNOWN” to access the subject property. Attorney Mills said that the vacant abutting lot has existed for 50 years. Mr. Nelson suggested that the Petitioner could attempt to take that abutting lot by adverse possession and eliminate the access problem. Attorney Mills said that one alternative is to: “Bring an action and do a summons by publication to the heirs in the newspaper.”
Mr. White said that the site plan was approved 27 years ago by the Planning Board and questioned why the Zoning Board of Appeals would seek to have him change that plan. Mr. Nelson reminded Mr. White that he is using property that he does not own. Attorney Mills said that the Planning Board approved the plan, as is, without adequate fire truck access between the office and the motel.
Mr. Bonvie asked to see the 1983 site plan, which Mr. Stevens retrieved from the Building Department files.
Mr. Nelson suggested improving access to the property. Mr. White said that he has incurred thousands of dollars in expense. He said that he has “already spent $15,000 on this process. I’m broke. It’s putting me in a severe financial situation.”
Mr. Nelson said that his internet research revealed that the income on the property brings in less than $500,000 a year and that there are from one to four part-time employees. Mr. White said the revenues are about one-third of that figure after subtracting expenses and mortgages. He said that he lost $20,000 during the first year of his operation and $2,000 in 2009, in addition to the $200,000 he invested to purchase and make improvements to the motel. Mr. White said that he is the full-time staff and acts as maintenance, front desk clerk, reservations clerk, bookkeeper and manager. He said that he employs a few part-time housekeepers and that the whole situation has put him under “severe financial duress”.
Mr. Nelson referred to the abutter complaints and testimony submitted at the previous hearing regarding pit bulls, stolen items from a neighbor’s yard and a drunken trespasser. He said that after analyzing the testimony “person for person and letter for letter, there is very, very little in there that can actually be said that Mr. White and the La Plaza del Sol are responsible for this. In other words, I can discount most of what I saw there. Most of it is ‘sour grapes’ on the part of the public.”
Mr. Furbush itemized the following areas of concern which the Petitioner should resolve:
- acquisition of an easement in the back of the property from “OWNERS UNKNOWN”.
- acquisition of a recordable and perpetual easement across 78 Main Street.
- exact location of the dumpster on the plan showing its exact distance away from the building.
- obtaining a letter of approval from the Fire Department indicating that the Fire Department has adequate access to the subject property and that the Petitioner has satisfactorily addressed the Fire Dept concerns.
Mr. Bonvie agreed with Mr. Furbush and said that he could not vote in favor of the Petition without Fire Department approval.
Attorney Mills said that the Petitioner would agree to a continuance of the hearing. Mr. Furbush made a motion to continue the hearing until August 11, 2010 to allow the Petitioner an opportunity to address the areas of concern. Mr. Reiffarth seconded the motion. All were in favor.
RESCHEDULED HEARINGS
Due to failure of the Mashpee Enterprise to properly publish notice in accordance with Massachusetts General Laws Chapter 40A §11, the Mashpee Zoning Board of Appeals is required to reschedule the following July 14, 2010 Petitions to July 28, 2010:
Gilbert A. and Sondra Alexander: Request a Variance from Section 174-31 of the Zoning By-laws for permission to vary the side setback requirements to allow for construction of a garage on property located in an R-3 zoning district at 35 Grant Breen Drive (Map 81 Parcel 104) Mashpee, MA.
Mashpee Housing Authority and Housing Assistance Corporation: Request a Comprehensive Permit under Massachusetts General Laws Chapter 40B to allow for construction of Breezy Acres Phase II consisting of ten rental housing units within five two-story buildings consisting of eight two-bedroom units and two three-bedroom units on property located in an R-5 zoning district at 570 Old Barnstable Road (Map 72 Parcel 100) Mashpee, MA.
OTHER BUSINESS
Mashpee Housing Authority and Housing Assistance Corporation: Sign Agreement to Extend Public Hearing Date on Petition for a Comprehensive Permit under M.G.L. Chapter 40B - Breezy Acres Phase II at 570 Old Barnstable Road, Mashpee, MA.
The Board signed the Agreement to Extend the Public Hearing Date to July 28, 2010 on the above-referenced Petition.
Mashpee Housing Authority and Housing Assistance Corporation: Determine dollar amount Petitioner must deposit to fund Board’s Outside Consultants/Legal services fees concerning Petition for a Comprehensive Permit under M.G.L. Chapter 40B - Breezy Acres Phase II at 570 Old Barnstable Road, Mashpee, MA.
The above-referenced Petitioner submitted two $5,000 checks along with the Petition fee of $1,250. One of the $5,000 checks will cover legal counsel fees. The other $5,000 check was submitted to cover financial expert services fees. The Board discussed the idea of using the check for financial expert services to cover engineering consult fees. After some discussion and referring to the Comprehensive Permit Rules, the Board decided to wait to discuss this matter with Attorney Jason Talerman and the Petitioner. Mr. Furbush made a motion to postpone this discussion until July 28, 2010. Mr. Reiffarth seconded the motion. All were in favor.
Accept Engineer Charles Rowley’s review proposal of Breezy Acres project
Mr. Nelson made a motion to accept Mr. Rowley’s review proposal of Breezy Acres project. Mr. Blaisdell seconded the motion. All were in favor. Mr. Nelson said that he would personally call and talk to Mr. Rowley.
Accept June 23, 2010 Minutes
Mr. Blaisdell made a motion to postpone approval of the Minutes to allow everyone an opportunity to read them. Mr. Furbush seconded the motion. All were in favor.
The Board requested Attorney Caruso’s presence at the Public Hearings on August 11, 2010.
Mr. Blaisdell made a motion to adjourn the meeting. Mr. Furbush seconded the motion. All were in favor. Meeting was adjourned at 8:30.
Respectfully submitted,
Cynthia Bartos
Administrative Secretary
At the Public Hearings on April 11, 2012, the Zoning Board of Appeals voted unanimously to to discontinue non-disclosure of the Minutes from Executive Session on July 14, 2010.
EXECUTIVE SESSION MINUTES
MGL CHAPTER 39 Section 23
July 14, 2010
6:00 p.m.
Conference Room #1
16 Great Neck Road North
Mashpee, MA 02649
Members present: Chairman Robert G. Nelson, Vice-Chairman Jonathan Furbush and Clerk James Reiffarth; Board Members William Blaisdell and John M. Dorsey; Associate Board Members Ronald S. Bonvie and Peter Hinden.
Others in attendance: Attorney Jena Caruso.
Purpose of Executive Session: Discussion with Town Counsel concerning Pending Litigation of the following: Affordable Housing Association of New England v. Town of Mashpee Zoning Board of Appeals – Barnstable Superior Court Case Number BACV 2008-00517.
Town Counsel Attorney Jena Caruso said that the Pending Litigation is an Appeal under Chapter 40A Section 17. Building Commissioner Richard Stevens received complaints from neighbors alleging that guests were staying at the La Plaza del Sol motel for intervals longer than 30 days at a time. The owner of the motel, Peter White, operates the motel under the corporate name of Affordable Housing Association of New England. After inspection of the subject property and examination of guest registers accompanied by the Board of Health Agent, the Building Commissioner issued a Cease and Desist Order prohibiting the owner from allowing motel guests to stay for intervals longer than 30 days at a time. The Zoning Board of Appeals upheld the Building Commissioner’s Order. Affordable Housing Association of New
England Appealed to Superior Court to overturn the Decision of the Board to uphold the Building Commissioner’s Cease and Desist Order. Attorney Caruso said that the crux of the case is the Building Code, which dictates that hotel/motel use should be primarily used by transient people staying on the premises for less than 30 days.
Building Commissioner Stevens’ letter dated March 18, 2008 “Re: Request for Enforcement Action: Cease and Desist Order; 66-72 Main Street” informed Mr. White that Mr. Stevens had rendered “a written determination that the current use and occupancy of the La Plaza del Sol property exceeds the scope and nature of any protected use under ‘grandfathering provisions’ permitting continued use of this property as a motel”. Mr. Stevens demanded Cease and Desist of any non-motel use of the subject property immediately. Mr. Stevens’ letter further reads: “The Massachusetts Building Code at 780 CMR 310.3 provides that in a Use Group R-1 Structure, the period of occupancy for a motel is less than thirty days. Massachusetts courts have clearly distinguished motels, which are
intended for use by short term, transient occupants, from lodging houses, which are intended for uses as a more permanent place of occupancy. The La Plaza del Sol, based upon all records and documents available in this office, has historically and, presumably, continuously been used as a motel for short term, transient occupancy, rather than as a lodging house. Thus, current and future use of the subject property would be ‘grandfathered’ only for that specific type and nature of use. Accordingly, you are hereby ordered to limit the occupancy of rooms for rent at La Plaza del Sol Motel to short term, transient occupants.”
Attorney Caruso quoted the Massachusetts State Building Code 780 CMR 310.3 Use Group
R-1 structures: “This use group shall include all hotels, motels, boarding houses and similar buildings arranged for shelter and sleeping accommodations and in which the occupants are primarily transient in nature, occupying the facilities for a period of less than 30 days.” She said that the Appeal is asking the Court to determine the precise definition of ‘primarily’ transient in nature. Attorney Caruso said that the motel’s argument is that ‘primarily’ means exactly that – the guests are ‘primarily’ transient in nature, that ‘primarily’ the motel guests are there for 30 days or less. On the other hand, it also means that not every guest stays for less than 30 days. Town Counsel’s argument is that essentially a motel is
traditionally used for transient guests. Attorney Caruso said case law exists that indicates having a guest that is not transient in nature changes the use of the property over to a lodge, which is not a ‘grandfathered use’ in this case. She said that the ‘grandfathered use’ is this case is for operation of a motel/hotel and that the guests need to be transient in nature. The current change in use accommodating people who are not transient in nature is not the ‘grandfathered use’ for the motel.
Attorney Caruso said that an examination was conducted of the motel’s guest registers, bookings, logs and the day cards show that some people have been living at the motel for months, even years, at a time. She stated that there are more transient guests than full-time guests living on the subject property; therefore, she said “by his definition”, Mr. White’s claim that the motel is primarily transient in nature is true. She said that the Judge would have to clarify how to interpret the Building Code and the case law surrounding the Building Code. Attorney Caruso said that the two seem to clash in that “the case law seems to indicate that people need to come and go as transient people and the Building Code seems to say this word ‘primarily’ and we’re not sure how to
interpret the two right now.”
Attorney Caruso said that the trial date scheduled for July was postponed in order to await the Decision of the Board. She said that if the Board grants the Petitioner his request, then he would most likely dismiss his Appeal.
Attorney Caruso asked the Board for questions and advised them to stay away from the topic of what will be discussed at the Public Hearings as much as possible.
Mr. Blaisdell said that “you can look at ‘primarily’ in different ways.” He asked if Mr. White was able to show “room night stays by permanent versus transient”. Attorney Caruso said that the information was provided. The documents revealed that the tally of the “room nights” of the permanent guests far exceeds the “room nights” of the transient guests. Attorney Caruso said that the Appeal is requesting the Judge to define the word ‘primarily’ and then said: “Does it mean room nights? Does it mean rooms themselves? Does it mean guests themselves?” She said that the Building Code is vague and it is up to the Board’s good judgment to clarify its interpretation of the Code.
Mr. Bonvie asked if the Board could Deny the request on the basis of issues such as health and safety concerns. Attorney Caruso said that it would be preferable to have the Judge interpret the word ‘primarily’. The Board would then have an interpretation, would have the ability to condition the use of the motel and could demand that Code regulations must be met.
Attorney Caruso said that the Board must decide whether or not to allow the Petitioner the non-conforming use of the motel and whether or not he has the right to have guests staying for intervals of greater than 30 days. She said if the Judge rules against the Plaintiff, then the Code concern becomes a secondary part of the issue. If the Judge rules for the Plaintiff, then the issue may become a matter of Code enforcement for the Board.
Mr. Furbush said that he feels that the number of room nights is the issue, not the number of people staying at the motel. He asked about case law and whether “this is the first time this has ever been argued.” Attorney Caruso asserted that this is the first time. She said that the cases are very old and date from the late 1800’s and early 1900’s when lodging houses and rooming houses were popular. The case law distinguishes between motels and lodging houses – that motels are to be used for transients only. The case law also interprets that extended periods of time are covered under a lodging house situation, which is a different use. Attorney Caruso said that the use of the motel is ‘grandfathered’ under motel use, not grandfathered for a lodging house.”
Mr. Dorsey said that he agreed with Mr. Furbush and that the difference between the incomes Mr. White derives from the permanent residents versus the transient residents will reveal an inconsistency. Attorney Caruso said that the permanent residents clearly far exceed the number of transient residents. Mr. Dorsey said that children living at the motel are picked up by school bus to attend Mashpee schools. Mr. Bonvie said that those motel residents should be required to pay real estate taxes instead of using Town services at the expense of other Mashpee taxpayers.
Attorney Caruso said that the Board can put various conditions on the Petitioner and control the extent of his motel operation. She mentioned bringing the rooms up to Code, fire engine access, special bus stop location and appropriate playground areas. If the Judge rules in favor of the Plaintiff, then the Board would lose a little of its control over the situation. She said that the Board could then go to the Building Commissioner to enforce the Building Code, which would be a whole new legal issue in itself.
Attorney Caruso said that the Petitioner could charge the Board with being arbitrary and/or capricious. She said that a “well-written Decision in either case is a good thing and it will certainly help us, but it can’t stop him from Appealing.” Mr. Dorsey referred to a motel in Yarmouth that was recently converted into affordable housing. Attorney Caruso said that case was resolved before getting to the point of having to go to Court, unlike this Petition.
Mr. Furbush asked if most of the motels on the Cape are in commercially-zoned areas and that the situation in Mashpee is different due to the fact that the motel is in a residential zone. Attorney Caruso agreed that the situation is unique, and that the ‘grandfathered use’ is for a motel. She said the argument is over what the ‘grandfathered’ use allows.
Mr. Nelson read a statement from Health Agent Glen Harrington dated August 23, 2007. The statement reads:
“As for the length of stays, the motel definition according to M.G.L. 140 s. 32A states that the motel buildings shall be used to provide sleeping accommodations for ‘transient motorists’. M.G.L. c.140 s 12A states further that a definition of a hotel (including a motel) uses the same wording as ‘transient occupancy’. Certainly, in my opinion, ‘transient’ does not mean year round. The length of stay is not defined, as I could find, for Board of Health jurisdiction. If a stay of 30 days or more is performed then the building or unit shall meet the Child Lead Prevention Law. The Building Code (780 CMR 31.03) states that in a Use Group R-1 structure, the period for a stay in a motel is
less than 30 days. Please seek the opinion and interpretation of the state and local zoning use and applicability of the La Plaza del Sol from Richard Stevens, the Building Inspector.”
Mr. Nelson said the reason for referencing this letter was to clarify that before the Board was involved, Mr. White had already been informed by Town officials of the Massachusetts General Laws and Building Code restrictions placed on structures in an R-1 zone. Mr. Nelson also reminded the Board that Mr. White did not initiate this sort of motel operation because the previous owner of the motel had started the practice of accommodating persons for periods longer than 30 days.
Attorney Caruso said that the Board can Appeal a Decision rendered by a Judge. She said that if the Board decides to grant the Petition, the Board could place restrictions and conditions on the Decision. Attorney Caruso suggested that the Board could get an idea if Mr. White would be willing to comply with certain conditions by posing a condition to him and then asking how he would feel about having to comply. Attorney Caruso said that the Court upholds safety and health conditions placed by local Boards. She said that a Decision rendered by the Court would not have conditions. However, the Board would have the opportunity to enforce the Zoning By-laws or Building Codes through the local authorities.
Attorney Caruso said that what was being discussed does affect the Pending Litigation. She advised the Board not to discuss what kind of conditions to place on the Petition in the event the Petition is granted. Attorney Caruso said that the fact that the Board’s Decision affects the Pending Litigation is reason for discussion.
Mr. Nelson wanted to know if the Board could ask the identity of Mr. White’s partner. Attorney Caruso said that the Board could ask Mr. White as long as the matter was brought up at the previous hearing. She said that the Board could word questions about issues covered in the previous hearing with this approach: “I know we asked you about this matter before. Could you please clarify for us?”
Mr. Nelson said that the Petitioner is using property outside of the subject property for purposes of egress and ingress for the motel. He said that his internet research revealed that the Corporation has an address in Auburn, Maine and makes less than $500,000 a year and employs from one to four part-time employees. Attorney Caruso said that the Board has to be careful to only discuss and ask for clarification of issues that were brought up at the first Public Hearings. Mr. Bonvie said that a title search would show liens, other investors or second mortgages that may reveal names of partners. Attorney Caruso said that the Board should have a reason for their inquiries to establish why it is relevant to the Petition.
Attorney Caruso said an Order has been entered to inform the Court that an attempt is being made to settle the case. Attorney Caruso said that if the Board grants the Petition with conditions which Mr. White does not like, Mr. White can still Appeal the Board’s Decision. Attorney Caruso said that the Judge can either: Approve the Appeal, Annul the Board’s Decision, Annul and Remand back to the Board for further deliberation for a new Decision.
Mr. Hinden said that the inability of fire apparatus to access the subject property makes the motel unusable for its current operation. Attorney Caruso said that the Board’s authority includes making that determination. Mr. Bonvie said that the Fire Department concerns can be incorporated as part of the Board’s conditions.
Attorney Caruso asked for any further questions. The Board thanked Attorney Caruso and requested her to remain for the Public Hearings. Attorney Caruso said that she would be happy to do so.
Mr. Dorsey voted to end Executive Session at 6:55 p.m. and to reconvene in Open Session at 7:00 p.m. Mr. Reiffarth seconded the Motion. Roll call and votes were made in this order:
James Reiffarth Yes
Robert Nelson Yes
Jonathan Furbush Yes
Ronald S. Bonvie Yes
Peter Hinden Yes
Respectfully submitted,
Cynthia Bartos
Administrative Secretary
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