Mashpee Zoning Board Declines La Plaza Del Sol Occupancy Compromise

By: Brian Kehrl
Published: 08/13/10

La Plaza del Sol is headed back to court.

The Mashpee Zoning Board of Appeals on Wednesday night, citing concerns about public safety access, unanimously rejected a proposal from the owners of the Route 130 motel to allow guests to stay longer than 30 days in nine of the 19 units.

After the contentious 45-minute hearing, La Plaza co-owner Peter A. White said he planned to revive a lawsuit pending in Barnstable Superior Court to settle the question of whether motels can allow long-term tenants. Mr. White filed the suit in 2008 after the town issued a cease and desist order telling Mr. White to stop allowing guests to stay for more than 30 days.

Beyond the immediate consequences for the town, one of its three motels, the Route 130 neighborhood, and a group of guests who have been using the motel as a type of affordable housing, the lawsuit may have statewide consequences.
Robert F. Mills, a Hyannis-based attorney representing Mr. White, said Massachusetts courts have never ruled directly on the practice of motels serving as cheap, transitional housing, a controversial practice allowed in many towns on Cape Cod and elsewhere in the state.

“This has never been addressed,” Mr. Mills said after the hearing Wednesday. “It is a case of first impression.”
Mashpee has no local ordinance governing the length of stay at motels, so the only applicable statute is state law, which requires motels guests to be “primarily transient in nature.” “Transient” is considered to be less than 30 days, but there is no clear definition of “primarily.”

Mr. White, during the hearing and again afterward, said there are indications that the state supports the practice, like state funding being used to pay for upward of 700 people to be housed in motels across Massachusetts. He said the proposal to the ZBA is a “compromise” meant to keep the issue out of court.

Zoning board of appeals members, however, said they were less concerned about the practice of allowing guests to stay longer than 30 days and more focused on public safety and other issues.

ZBA Vice chairman Jonathan D. Furbush said Mr. White did not adequately address the issues the board raised at its last meeting: that part of the landscaping of the motel is on an adjacent lot not owned by Mr. White, that one of the two main access points to the property is on another lot not owned by Mr. White, that the dumpster must be 50 feet from the building, and that the Mashpee Fire Department had not stated that it is comfortable with the arrangement.

Mr. Mills said the dumpster has been moved more than 50 feet from the building, but that an easement could not be obtained for either of the properties. The owners of one of the properties are not known, he said, and the owners of another were willing to provide a written statement allowing access over their property but would not agree to a legal easement, Mr. Mills said.

Mr. White said the town has approved the plans for the property on several occasions, including in a definitive plan and a more recent septic system plan, and so the issues of property lines and fire equipment access have already been settled. He said the proposal is about the use of the building, not a structural change to the site.

Mashpee Fire Chief George W. Baker Jr., however, addressed the board and said he is not comfortable with the proposal. He used as a reference fire prevention regulations, passed in the 1990s, three decades after the motel was built, that require suitable access to multi-family dwelling properties. “We do not have, in my opinion, suitable access to the property,” he said.

He said two retaining walls on either side of the main access road are not wide enough for the department’s trucks to pass through and reach the back of the property. And the entrance across the driveway next door, which is wide enough for the department’s vehicles to pass through, could be blocked at any time, he said.

He said the department could have to add extensions to its hoses to access the rear of the building. “It is going to be extra minutes, if not 10 minutes,” he said.

He asked that the long-term units be moved to the front of the building, near Route 130, so the fire department would have easier access.

Chief Baker’s statement seemed to be a turning point in the hearing, when it became clear that the proposal would not pass.

Mr. Furbush said he is not concerned about the “transient in nature” issue. “But unless he is comfortable, the fire chief, I am not comfortable. Let me put it another way: you need to make him comfortable,” he said.

ZBA Chairman Robert G. Nelson, who stressed that Mr. White is using property that does not belong to him, declared his intention to vote against the proposal.

Mr. White said he would agree to change the location of the long-term units, if that could secure a compromise with the board. Neither the board members nor Mr. White, however, discussed the proposal any further.

Mr. White, who spoke at length during the hearing, accused the board of focusing on issues not directly related to the proposal, which was for the board to determine whether the proposal to allow nine of the 19 units to be occupied by guests staying longer than 30 days is “substantially more detrimental” to the neighborhood than the current use of the building.

He said the fire department has access to the front and the rear of the property, though the driveway crosses over a neighboring property. He said he has cleared trees at the fire department’s request to improve access. He said the site is inspected every year in order for him to receive a new lodging permit from the town.

He seemed to be frustrated with the board during the hearing, taking on a combative tone in answering the board’s questions. For example, ZBA member James Reiffarth said the town has never given Mr. White a permit to allow guests to stay longer than 30 days. “Yes, it has,” Mr. White said sharply. “The town gives me a lodging permit every year. I have a legal right to have extended stay guests, as long as the guests are primarily transient in nature.”

Mr. White asked if the board wanted him to hire an engineer and go through the site plan approval process, to which Mr. Furbush responded that he would.

“That would cost thousands and thousands of dollars,” Mr. White said.

Mr. White has cast the issue in ethical terms, saying that he is providing a social service to people who need a place stay, some of whom cannot afford rents and housing prices on Cape Cod and so would be homeless, if not for the motel.

Mr. Mills said the board was allowed to ask about parking, but the focus on property lines was a separate issue from this proposal.

“I think they went beyond their jurisdiction in a lot of areas,” Mr. Mills said after the hearing. “It is a pre-existing, non-conforming use. We don’t have to change the location of the motel.”

However, Jena M. Caruso, an attorney for the town who attended the hearing, said the board was within its rights to bring up public safety concerns, which she said are “always within the board’s jurisdiction.”

During the three public meetings on the issue the board did not ask Ms. Caruso to address the legal question of whether motels are allowed to have long-term guests. On Wednesday, she spoke only when asked how the board should frame the motion.

After the hearing, Ms. Caruso said she typically does not speak up during meetings, unless she hears a board doing something it should not. “Which didn’t come up tonight,” she said.

The hearing was the third in as many months held by the ZBA. Last month, the board held an hour-long executive session before its meeting.

Public comment was not allowed on Wednesday or at the hearing last month. At the meeting in June, about a dozen people addressed the board, with several speaking up in favor of Mr. White’s proposal, calling it an important public service, while others said the motel has become a blight on the neighborhood.

Mr. Mills said he would reactivate the pending case in superior court. It was not yet clear when a hearing on the case would be scheduled.