03/23/2011 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS EXECUTIVE SESSION MINUTES • MARCH 23,2011 laws with specific definitions of a motel, whileile there is nothing in the Mashpee Zoning By-law that distinctively defines a motel. In the absence of a specific By-law, authorities must resort to using the Building Code definition and case law. Attorney Costello said that case law considers motels as way stations along the way for traveling motorists and are to be used for short-term occupancy. There is no clear judicial definition of a motel as opposed to a lodging house. Mashpee used the definition of a motel as found in the Building Code 61h Edition, which designates motels as an R-2 use group for `primarily transient occupancy' of periods less than 30 days. The 2008 State Building Code upheld the Building Commissioner's original Cease and Desist order. Mr. Blaisdell questioned the definition of `primarily'. Attorney Costello said there are several ways to look at that term and just leads to a debate on semantics. Attorney Costello stated that the Building Code Vh and 81h Editions have been amended to include two separate use classifications of a motel: 1) transient and 2) non -transient. This code no longer supports the Board's position. Mr. Bonvie suggested that the Board should present an article for a new By-law at Town meeting. Attorney Costello said that it would not affect the outcome of this case. He said that the lack of specification and definition in the Town By-laws make it difficult for the Board to maintain its decision. He said that the court would question the Board on • how it would distinguish between a motel that existed in 2008 and one that exists now. Mr. Furbush brought up the public safety concerns and right-of-way issues. Attorney Costello said that it is in the best interests of the Board and the Town to resolve those issues with the Petitioner, rather than leave it in the hands of the court to determine. The Board discussed the conditions suggested by Attorney Costello. Attorney Costello said that reaching a compromise would eliminate the need for a trial and the Board/Town Counsel having to revisit this repeatedly. He said that having a set of rules and regulations governing the subject property would enable the Town to legally enforce future violations. (See attached: Conditions and response from Attorney Mills). Mr. Blaisdell said that he has serious reservations concerning the fire safety issues and access. Mr. Reiffarth agreed and said that Units #30, #31 and #32 in the back of the building should not be used for long-term occupancy. This would reduce the number of long-term units to six, not nine. Mr. Bonvie said that he is also worried about the Petitioner not being agreeable to limiting the number of occupants in a unit. Attorney Costello said that the Petitioner has agreed to a fire emergency vehicle access plan that must be approved by the Fire Chief. Attorney Costello said that Chief Baker indicated that he feels an acceptable plan can be worked out. Attorney Costello said that he will be working with Attorney Mills to come to an agreement with Mr. White. Attorney Costello said that Mr. White does not quite • understand that he doesn't have a "right" to operate the motel any way he wants. Attorney Costello will update the Board by April IP on the outcome of his conversations with Attorney Mills. If the Board agrees to the conditions, the court will be notified that a settlement has been achieved. The court will then issue an order giving 2