HomeMy WebLinkAbout4950 759 Route 28 Letter from Paul Tardif 10.26.22 LAW OFFICES OF
PAUL R. TARDIF, ESQ., P.C.
490 MAIN STREET
YARMOUTH PORT,MA 02675
(508)362-7799 (508)362-7199 fax
Paul R Tardif,Esq. Stacey A. Curly,Esq.
ptardif@tardiflaw.com www.tardiflaw.com scurley@tardiflaw.com
REFER TO FILE NO.
October 26, 2022
Michael Stone, Chairman
Yarmouth Board of Selectmen
1146 Route 28 OCT 28 2022
South Yarmouth, MA 02664
YARMOUTH
BOARD OF APPEAL
Re: Yarmouth Zoning Bylaw/Yarmouth Business Community
Dear Mr. Stone:
Please be advised that this office represents numerous business entities and operations in
the Town of Yarmouth, in addition to representing my clients routinely before the Yarmouth
Zoning Board of Appeals, and have done so for the last 24 years. I am writing to you regarding
two issues-one specific, and flowing from that, one more general concern. I currently represent
the owners of a local motel who have so operated for several years pursuant to a motel license
issued by the Board of Health. In April of 2022, I appeared before the Yarmouth Zoning Board
of Appeals seeking a Special Permit to allow my client to house seasonal employees in 100% of
their motel rooms, and to rely upon the tenant's employer to provide 3 meals each day for their
employees, all pursuant to Zoning Bylaw Section 404.5.3. At that meeting, the Zoning Board of
Appeals unanimously issued a Special Permit for one calendar year. I have attached a copy of
that Decision for your review.
On September 1, 2022, I wrote to the Yarmouth Board of Health, who was contemplating
revoking my client's motel license, since, in its mind,the property was rented to employees and
not to transient guests, and therefore, no longer a motel. I also know that inspections of each
room were requested by Health Inspector Phil Renaud, which is in addition to the motel room
inspection conducted yearly. In addition, Bruce Murphy,the Health Director, has suggested that
my client's motel license be revoked for the reason that their action in seeking the Special Permit
somehow expressed their intention to no longer use the property as a motel, and more troubling,
that the intention of Section 404.5.3 is to effectively void motel licenses once employees are
permitted to temporarily stay in those units. To this date, I have never received a response to my
letter from the Board of Health. It is my belief that the Health Division's stance on this situation
is incorrect, and I am writing to (1) advise you of this standoff, and(2)the potential backlash this
situation could have on the Town of Yarmouth's self-perceived reputation as a business-friendly
Page 1 of 4 Letter to Yarmouth Board of Selectmen
October 25, 2022
town. I hope that you will concur with my position regarding this matter and take the
appropriate action to repair this growing division.
Yarmouth Zoning Bylaw Section 404.5, entitled"Seasonal Employee Housing at
Motels/Hotels"prescribes the Town's policy to address the difficulty of our local motel owners
to attract and retain sufficient staff to accommodate our seasonal tourist industry. There are a
number of conditions, listed below, which must be met to qualify for this relief, which can be
granted in the discretion of the Building Commissioner. The Bylaw also allows relief by
Special Permit for those motels/hotels cannot meet all of the conditions, an indication of the
recognition of the dire need for employee housing in the Town of Yarmouth. Not only does the
name of the Section indicate the temporary nature of this accommodation in motels/hotels,but
subsequent sections reference the intention that motels/hotels continue to so act, despite this
temporary use. Section 404.5.1 outlines the purpose of the bylaw. Specifically, it recites that the
bylaw is to provide standards to ensure safe and adequate housing for temporary seasonal
employees at"motels/hotels." Going further, Section 404.5.3, entitled"Operational Standards
for Seasonal Employee Housing at Motel/Hotels", lists the conditions for the accommodations
for Seasonal Employee Housing at Motels/Hotels, as follows:
1. Seasonal employee housing shall be for no more than seven months between April 1st
and October 31 st annually.
2. Seasonal employees shall be housed in motel/hotel rooms only. Seasonal employees
may not be housed in camp sites, tents, RVs, mobile homes or campers located on the
motel/hotel property.
3. Seasonal employee housing shall meet all the Board of Health and State of
Massachusetts regulations regarding building and fire codes, health codes, water
supply and wastewater disposal.
4. Maximum occupancy rate of each unit to be determined per the Health Codes.
5. Seasonal Employee housing shall be used solely by employees and shall not include
family members of employees, or other non-employees.
6. The employer shall designate an on-site proctor for each property utilized as
employee housing. The on-site proctor shall ensure that all seasonal employees are
apprised of the rules and code of behavior prior to occupancy. The name and contact
information for the on-site proctor shall be submitted to the Yarmouth Police
Department.
7. All employees shall have access to cooking facilities, which shall include at a
minimum a microwave, sink, cooktop and refrigerator/freezer.
8. No more than 15% of any hotel or motel rooms at a single parcel may be used for
employee housing. Each room used for employee housing shall be identified on a
locus map of the site and submitted to the Building Commissioner, Board of Health
and Yarmouth Police Department.
9. All employees must be able to demonstrate that they maintain a principal place of
residence elsewhere.
10. The property owner shall keep records of all employees utilizing employee housing,
including name, permanent address and length of stay. All documentation to be
provided upon request.
Page 2 of 4 Letter to Yarmouth Board of Selectmen
October 25, 2022
11. The permit issued by the Building Commissioner shall be valid for one year only.
The Bylaw clearly indicates an intention that the motel/hotel use does not disappear with the
issuance of a permit in furtherance of this section. Specifically, Section 404.5.3(2) states as
follows:
2. Seasonal employees shall be housed in motel/hotel rooms only. Seasonal employees
may not be housed in camp sites, tents, RVs, mobile homes or campers located on the
motel/hotel property. (emphasis added)
Moreover, Section 404.5.3(8) states as follows:
8. No more than 15% of any hotel or motel rooms at a single parcel may be used for
employee housing. Each room used for employee housing shall be identified on a locus
map of the site and submitted to the Building Commissioner, Board of Health and
Yarmouth Police Department. (emphasis added)
Furthermore, this section of the Bylaw cannot rightfully be interpreted to mean that a motel/hotel
owner is to be penalized by the potential forfeiture of their motel license by relying on a section
of the Zoning Bylaw which was created to assist such a business owner with a pervasive housing
crisis facing business owners here in Yarmouth. There is no language in Section 404.5 which
even hints at such a draconian measure.
The purpose of this letter is not to avoid inspections, as my client is as interested in
providing safe and comfortable housing to employees as the Health Division. But please know
that the on-site property manager for the tenants, as well as the on-site property manager for the
owner, collectively conduct weekly inspections of each room, and no violations have become
evident since the Special Permit was exercised. We think that the veiled threat to revoke motel
licenses from tax-paying business owners who do not succumb to duplicitous inspection fees for
units which continue to be motel/hotel units is not the tone that Yarmouth wants to project,
especially when facing a housing, and thus an employee, emergency.
This same issue has now been positioned as some kind of impasse between your Zoning,
Health and Building Departments. I am representing another applicant before the Zoning Board
of Appeals on November 10, 2022, seeking the same relief recited in the attached Decision. In
this case, the Board of Health has now, for the first time,taken the step of forwarding the
attached Memorandum to the Zoning Board of Appeals, in the hope that they will add their
conditions to any relief granted, including mandatory inspections, registrations, and approval of
floor plans to determine occupancy, all at additional cost to the owner. This is troubling for a
number of reasons. First,motels in the Town of Yarmouth are already inspected annually by the
Board of Health and the Building Department. There are no changes to the motel rooms to be
used for seasonal occupancy, another example of the intention of the Bylaw that the units remain
motel units. Second, seeking secondary payment of unnecessary fees based on the re-defining of
a"motel room" into a"rental unit"Who are attempting burdensome to address a housing emergency which
d excessive. Third, such a position is
unconscionable to local businesses
Page 3 of 4 Letter to Yarmouth Board of Selectmen
October 25, 2022
will not only allow local residents to live where they work, but which will allow businesses to
merely stay in business, much less thrive.
I am not certain what, if any, action your Board can take to ameliorate the imposition
which this places on local businesses. Perhaps your Board can vote to waive all inspection fees
associated with zoning relief issued pursuant to this Section of the Bylaw. However, I can tell
you, based on my 24 years of representing businesses, and potential businesses, in the Town of
Yarmouth, that this continued burden has resulted in a growing dissatisfaction with the manner
in which businesses are treated.
I believe that it is time for the Board of Selectmen to make it abundantly clear to the
Town Departments that the local businesses are not only necessary, but appreciated for the work
that they do,the people they employ, the taxes they pay, and in this case, the de facto housing
service they are providing for the entire Town of Yarmouth. The repeated chorus that Yarmouth
is "business friendly", without concrete examples of what warrants that characterization, does
not make it so. Please know that the precipitating factor for this letter, recited in detail above, is
merely one example of the roadblocked path that I see facing my clients who would like to
conduct business in town. However,the overwhelming majority of them have expressed their
displeasure, some of whom decide to take their business elsewhere.
I had asked the Board of Health to forward this issue to Town Counsel for review, and
that a written response be provided, but have never received an answer. I am renewing that
request to your Board. I appreciate your anticipated attention to this matter. If you determine
that my outlook is flawed in this regard, I will understand. However, I believe that my
erience is well-supported. I look forward to hearing from you in this regard.
V T 1 our , •
u R. T
Enc.
Cc: Robert Whritenour, Town Administrator
Mark Grylls, Building Commissioner
Bruce G. Murphy, Health Director
Karen M. Greene,Director of Community Development
Steven DeYoung, Zoning Board of Appeals
Page 4 of 4 Letter to Yarmouth Board of Selectmen
October 25, 2022