07/14/2010 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS EXECUTIVE SESSION MINUTES • JULY 14,2010 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.. 3