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Home My WebLink About1978 Oct 04 - Letter from Town Counsel Re: Lodging House License i � . � . �-- HAYES. CRENEY. BUTLER & HAYES, P.C. � A'i'i'ORNEYS-AT-LAW HYANNtB PROFff8610NA1 Csw7Eq � . � � 23 EABT MAIN STREET FfYANN13. MASSACHU8ETT8 02D01 HAROLD L HAYE8. JR. JOHN C. CRENEV oR COUws¢� WILLIAM F. BUTLER 111 � � �g»� ��$'�80 . - . ' , MtCWAEL. J. H.4YE5 PAUIa�F. SNYDER • � , � � . ROBERT L FLE13CFtER � - October � , 197� . &:* , Dale D. Karnes, �iealth Officer Town Offices South Ya�`inouth, MA _ 02664 Re: Lodging House L�,cense � Qur File No. Y-115 Dear Nr. Rarnes: � � ' - You have asked whether enforcement of our Space and Use By-Law might be supplemented by the provisions of General Laws, ch. 140, . sections 22 through 31 inclusive relative to lpdging houses. • ,;.This -seemingly simpl� question "�.nvolved complex considerations. � The above sections of the General Laws defi.ne lodga,ng houses, provide for th�'ir licensing, the keeping of a register, penalties for conduct of a lodging house without a license and for suspension�_-or revocation of lodging house licenses for eause after a heara.ng. _ �he term "lodqinq house" as defined in General Laws, ch. 140, §' 22 means a _, hause where od�.ings are l�t to four or more pers�ons not within the _.� . _._._ .__..� _ _ .�., F A__._, __ � � seci3�id-�3egree of kindred to the �person �cpnduct�nr� it, ancl� e��xcluc�`es • ., . . . .. i�brmitor "ies of c�iaritable or pTii�ant�firopic . xnsti,tutionS, convalescent, . nursing and rest homes or group res�,dences rec�ulated b� the Common- - wealth. - Secti3n 510U of our Zona�ng Bx-Law de�ines a "boarding or lo�crin; - house" as a _dwelling with a mana,ging �amil�zesi.dent on the r�,emises_,,� _�.._._. _...�_... _�ing accammo a ions wi or W�: ou__meal.s �o?r _ren��AtQ�more than � . _ � ,.�_.._ three and ,fewer than twelve-person�. �fSection" 57,Q0 de�ines "quest- � house" as a structure s�.mi ar a�n��c�iaractex to s� sa.n�le fam�.ly dwell- ing in which overriight 7.odging is offered �or �ive or more pers_oris. . _-_ primarily tourists. Under Sect�,on 230.0 of pur Zoni,ng By-Law, a boarding or lodging house is allowed as a matter pf right in a Resi- dential Zoning District; a guesthouse is allowed in a Residential District only upon special permit granted by the Board o� Appeals. Obviously there are both zoning and licensing questions involved in the above definitions and I think a,t is helpful to separate the zoning and licensing considerations. For licensing purposes, in � - determining whether a particular house is a "lodging house" and therefore require� a Iodging house license, one would ask himsel� the following questions: �� i , . . +� A . . �.�..�. .. s . • - , ' . . . . . . . � � � , .� HAYES. CRENEV. BUTLER & HAYES. P.C. i 4 • � 1 � i • ; • . i �1 � ,-- Dale D. Kaznes, Health Officer -2- � Oetober 4', 1978 �r : ;+r:- ' : ' ,. � - - � ' ... _ w ; � ` > � �. Is it a house? 1`-� . ��, .. . . „ ��' 2. Are lodgings let to four. or more personsi� '�`,� t' :� _,.. . � �� 3. Are such persons not w�.thin the second de�ree o£ kindred to ��.;y . the pe�son conducting it'.� �'��, . ��•�= r`��If the answers to the above questions are all yes and i£ the �ouse is not a convalescent, nursing or re�t home, nor a group resi- dence regulated by the Commonwealth, then a 1Qdg�.ng house license . would be required. Conduct of such a lodging house without a licen�se - could give ri,se to a criminal complaint under General Laws, ch. 140, ;;'-_;,. � 24. The licensing authority may, but need not, order a lodging house to keep a register. The fee for sudh a l�,cense mc�,y not exceed $2�. Q0; the term of such a license expires on December 31 0� each year. . �, , . It would be possible for an owner of }�xemises to avoid the '� . necess3ty for a ].odging house license if he were to rent that prop- ert,X to three or fewer persons or zf he were to rent such property to � . an3� number'�f� `pe�`ons wha were related to I��.m wa.thin the Second degree i of �C•indred qr claser. I .understand that you are � of the o�a.nion that `� - : mos� of �the current re�istrati,ons under the Space and Use By-La�v _ � i�volve premises which have in �he past been rented bx the .c�wners ti'�" . �+ . four or more 'persons� no�• �ithin tile �second degx�ee o� kfindred. TherefQre, •_if you were to attempt to impose the xec�uirement for lodgin��`'house licenses on these properties, the Loca1 Lzcensing ;;_ �` Authority rnight �find �.tse2f fa,c�.ng several hundred aQpkications for such .licenses between now a,nd the beg�,nni,ng pf thE ;�.479. xental season. �+.s to the •zoning xaspect, a,t may be that man� of ._�e pr.operties in question situated within k2esi,dent�.a1 Zoning Di,stric�ts aze "guest- houses" under the Zoning By-Law def�.nition in that they do not have a managing family resident on the premises and thex prov�.de lodging for five or more persons. Such guesthouses are not a7.lowed as a matter of right in a Residential Zoni,ng District under the �oning Bx-Law. Aside from .the number of persons to be accoimno�ated., the .esse�tial , dif.ference between the two Zqna,ng By-Law definitipns a�pears to turn upon whether there is a managing :�amily resa.dent on the pxemises, and the property changes character �rom one allowed as of ri.ght �o one permitted only upon special perm�t dependent upon the resident , , r, . , . ' , . � �; _ , � ' HAYE3. CRENEY. BUTLER 8C HAYES. P.C. i i - • � { . I i ! Dale D. Karnes, Health Officer -3- bctober 4, 1978�� • ' . � • , . , � - `; managing family. It is conceivable that a pro�erty could change its � character�:several times throughout a year depending upon the resi- � "� dence of a so-called managing family. Notice that the Zoning By-Law ! definitiar`'r, doe� 'not de�ine managing family nor does it ind�.cate that � such a managing fam.ily must be the owr�er of the premi,ses. I suggest that strict enforcement of the Zoning By-Law under these de�initions � � , . is, as a practical matter, extremely• da.ffi,cult. Attempted strict � ''enfo�cement may wel]. produce a f],00d of agplications_ to the Board of � Appeals for special permits: . • Very tru�,, you�s, � .:":t`��' _ . � . . ,'+�. '+� /� • ! �'� . . ' �� / / �/ � . . /�•(il�"I•�._� '�J• �/�--Lf�LL�.j . ''�_ �ohn C. CrenEx ^ ' . . _ . . ,,� . '-�,JTown CounseT . ' '. � JCC/me � cc: Robert C. Lawton, Jr. , - � Executive Secretary '`� .��» . +r - . ,, , ,� - .� . � � ,/ ` " < <;,-f � `�� /`' r r /'/� �. �'� � `''^ `�� ----� --�'�, g ; � %' � �,, i, ' �;� ' ' nt ,. �;;>� `\- ,,�F`„ �J� f,. :G',<�'�� `ly :, J � , I - ` r . . . "_._" . .