07/14/2010 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS EXECUTIVE SESSION MINUTES • JULY 14, 2010 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. 2