07/14/2010 ZONING BOARD OF APPEALS Minutes

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• 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 leads: "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,