Downtown mixed-use project to reapply for 2nd floor “hotel/motel” use despite zoning issues

by beth on September 21, 2018

Post image for Downtown mixed-use project to reapply for 2nd floor “hotel/motel” use despite zoning issues

Above: Some residents are excited about a potential mixed-use project on the long vacant downtown lot. But the zoning requirements are complicating approvals. (photo left by Susan Fitzgerald right by Cassie Melo)

A developer is seeking permission for a downtown building with ground floor businesses and upstairs residences. His plan dismisses Town Counsel advice that zoning doesn’t allow it.

Despite some urging to bring revised zoning to Town Meeting, developer Peter Bemis will continue to pursue approval through the Zoning Board of Appeals. He said he may be willing to also pursue a TM Article if the board approves his application.

At this week’s hearing, Bemis tried to convince the ZBA to approve his original application with conditions. After 90 minutes of discussion and public comment, multiple members were still unconvinced. Advised that a rewritten application would be “cleaner”, Bemis agreed to withdraw his application without prejudice.

He hopes to get an approval on a revised application at ZBA’s next meeting. That application will ask for hotel/motel as a use to cover four residential units.

Almost every public commenter this week, along with 10 letters from residents, showed support for the project. Even an abutter who expressed worry in August told the board that she and other neighbors preferred allowing apartment use to hotel. And the owner of a nearby restaurant who expressed concern in August didn’t speak this week.

Some commenters worried that Bemis would make good on a threat to sell the parcel if his application is denied. They spoke about the danger of a less desirable single use project vs a good multi-use project by a resident.

Even the few negative commenters opposed to a yes vote said they liked the project or thought it “may be” good for the town. But they cautioned the ZBA about overstepping its authority to zone a project for disallowed uses.

The developer plans to skirt around prohibited apartments by asking for hotels/motels as an allowed use. He told the board that he didn’t believe Town Counsel’s written argument against it.

This week, Town Counsel submitted a written response contradicting the opinion the Building Commissioner gave in August. 

Last month, Commissioner Mark Robidoux told the board that they did have the authority to rule on the project. He argued that absent the definition of a term in the zoning law, one looks to the state building code for definitions. Under the building code, hotels are defined as including two types – transient and non-transient. Therefore, Robidoux reasoned that the 2nd floor units were allowed as non-transient hotels. (Though, he said he didn’t know why Bemis referred to them as apartments in his application.)

The ZBA asked to hear from Town Counsel on the issue. According to Chair Craig Nicholson, Counsel Aldo Cipriano wrote that when terms are undefined, it is instead proper to refer to Black’s Law Dictionary or generally accepted dictionaries.

Cipriano reminded that only listed uses are allowed in the the business village zone. That rules out apartments. From Bemis’ comments, it sounds like Counsel advised that it also rules out “non-transient hotels”.*

Bemis was upset to have received the decision only an hour or so before the meeting. He said it seemed counsel didn’t want hotels to be used, so he came up with words to defend the position. He called it nonsensical that non-transient hotels are disallowed because they aren’t defined in zoning.

The disagreement may hinge on the definition of hotel listed in Black’s Law Dictionary. It specifies that hotel is for travelers and transient guests and doesn’t cover lodging for permanent borders. (The definition for motel is a motor hotel – roadside, overnight acommodations with few amenities). It seems that Cipriano indicated that hotel must therefore be transient unless the Town’s zoning code spells out otherwise.

Throughout the hearing, Bemis acknowledged the zoning doesn’t allow apartments. But he made it clear that he intends to build apartments and just label them hotels. (Several times, he pointedly referred to not using “the A word” for the residential units.) In defense, he pointed to Southborough Motor Lodge. He argued that people live there rather than staying overnight.

Some residents and members wondered if the ZBA could approve the hotel use and leave it up to the Planning Board to determine if the site plan was legitimate under the use. 

Main Street resident Karen Connell said that a business owner she works with in Natick avoided zoning against apartments by calling them condos, then buying them back to rent out. Arguing that everyone wants the project, she referred to the use language as just semantics.

After much back and forth with Bemis, ZBA members were unsure about approving the application asking for apartment use. Bemis tried arguing that his asterisk by apartment covered that the project he was describing wasn’t necessarily defined by that term. He furthered that the board set precedent earlier that night by approving a project with a list of “and/or” uses the owner. He said they could condition the list of uses and strike out apartment as one.

Board members responded that the other applicant requested the approved uses in the application. Member Debbie DeMuria repeatedly objected to the lack of the word hotel in the application.

Andrew Dennington was against specifically denying apartments since that was what makes the project attractive. Since they can’t approve apartments, he repeatedly urged Bemis to take new zoning to Town Meeting in March. He said he believed there was a lot of support for it. Some fellow board members agreed.

Bemis made several arguments against that plan. He believes he can get funding in the current economy and is unsure about next year. He can’t rely on getting 2/3 support of TM voters, especially if the Article gets pushed to late at night and only opponents stay to vote. TM could amend an Article to make it unfeasible for his project, like by increasing setbacks. And he witnessed how long the Town worked on revising zoning in the past without success.

In the end, he acquiesced that he might pursue revised zoning in tandem to pursuing Planning Board approvals. But he was unwilling to put the project on hold. At several points he said that if the ZBA wouldn’t approve his uses he may “pick up [his] blocks and go home”.

*Nicholson didn’t read the entire opinion from Cipriano. Instead he said it would be posted with the decision. (Since the application has been withdrawn, I’m not sure if/when it will be posted.) He summed up some portions for the public and Bemis later referred to others. I have requested a copy of the document, but am still waiting for word.

Updated (9/24/18 12:25 pm): I received a copy of the letter of opinion submitted by Town Counsel. You can read it here.

{ 25 comments… read them below or add one }

1 David Parry September 21, 2018 at 9:31 PM

Confused? Join the crowd.

Here are the facts, without opinion.

Everyone present at the hearing agreed that multiple uses are desirable on the vacant lot at 2 East Main, which has been vacant for over 20 years.

The problem is easily defined: How can multiple uses approved, with retail below and apartments above?

Architectural character is not an issue. Everyone appears to like the proposed 2 storey, wood framed, new england style building … similar in appearance to a building which actually existed on that site in 1900.

Also, septic and drainage are not problems, since the applicant has already been to the appropriate boards dealing with those matters.

The issue is: how can multiple uses be approved? They can only be permitted IF the ZBA issues a special permit. The uses have to be listed in writing in the zoning bylaw, as permitted within the Village Business District.

The problem is that the bylaw does not list “apartments”. However, it does list “hotel and motel”. Hotels can be occupied in various ways, including by non-transients (over 30 days occupancy). An example is next to Owen O’Leary’s pub on Rt 9, where the existing hotel/motel units are occupied for months or years, as if they were apartments.

But another example, which is far more attractive, is the historic and renowned Southborough Arms hotel, which was a classic, wood framed, new england style building, which stood at 11 Main St. It burned down in the 1970,’s and was replaced by the brick, professional office buildin

It appears that the only legal way to approve multiple uses is for the ZBA to approve retail/office below and “hotel/motel” above.

UNLESS the zoning bylaw is updated, by adding “apartments” as a permitted use. (Quite why this hasn’t been done already, by the Planning Board, is a mystery, since it has been called for repeatedly, including in the last two Master Plans).

Hence the applicant and the ZBA have no alternative, at present, except to identify the proposed “apartments” as “hotel” units.

The above are facts. Not opinion.

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2 Kelly Roney September 23, 2018 at 3:26 PM

One other provision to clarify: Commercial setbacks have to apply to multiple use plans, even if the plans include residential apartments.

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3 Lucy September 22, 2018 at 1:13 PM

A hotel is a hotel. You can’t approve as a hotel and have them be apartments. It’s a good time to fix the code and even have the building inspector enforce the other “hotels” that are actually apartments to conform. The only issue I see at town meeting is that you don’t want to allow for massive apartment buildings. Limit it to 6 per project for instance or that if requesting more you can go before the town. I don’t think we want hundreds of apartments in the village district.

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4 Kelly Roney September 23, 2018 at 3:28 PM

You’re right, it would be far better to make inclusion of apartments explicit.

But the boundary between hotel and apartment building is fuzzier than one might think. Is the Residence Inn on Rte. 9 in Westborough a hotel? Of course. But it houses long-term tenants, too.

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5 Concerned Voter September 23, 2018 at 12:36 PM

What is this nonsense?

A hotel / motel use is NOT an apartment. Period.

In my humble opinion, the rope-a-dope from Robidoux is simply silly. He is NOT an attorney. Why isn’t this person instead advocating for common sense and in line with the legal definition of apartment? Why would anyone advocate to allow a use that is NOT allowed? Language that is “silent” DOES NOT mean it is allowed!

Plowing ahead in the absence of common sense is wrong. Who can get behind any developer, not just this one, who sounds like he is blackmailing the town?

Also, that mix of proposed uses (if the ground floor would be a pub/restaurant use of any kind) could be asking for trouble and may be putting human lives at risk. Imagine sleeping upstairs and a fast moving oil fire breaks out in the restaurant / pub — or vice versa. Think it doesn’t happen?? Think again! Six dead in the first article! Children died in one of these fires. DOES THE ZBA USE GOOGLE ?? AND COMMON SENSE?

http://www.startribune.com/lawsuit-settled-in-death-of-6-in-2010-apartment-fire-in-minneapolis/247400921/

https://www.bizjournals.com/pittsburgh/news/2018/03/05/papa-js-heavily-damaged-in-fatalcarnegie-fire.html

https://www.wcpo.com/news/local-news/hamilton-county/cincinnati/pleasant-ridge/here-s-what-caused-fire-at-molly-malone-s-double-fatal-blaze-at-spring-grove-village-apartment

THIS IS THE IMPORTANT PURPOSE OF GOOD ZONING LAW AND the necessity of having SKILLED, KNOWLEDGABLE PERSONS APPLYING THAT CODE, not dangerous amateurs looking to make a project happen. When lives could be at stake, that is not a time for anyone (INCLUDING THE BUILDING INSPECTOR! – ARE YOU KIDDING?) to be advocating to slide one through. FIRE HIM! He is NOT an attorney.

No applicant should be able to plow their way through past safety concerns, using sleight of hand techniques or threats. Any ZBA member who allows this should be immediately removed, especially those who continually reflect bias, lack of knowledge, and lack the common sense, skill set, and judgment to sit on important decisions, in spite of their inflated opinion of themselves. If they cannot see that an apartment is NOT a hotel, REMOVE THEM.

If the Building Inspector and/or any ZBA members are willing to put human lives at risk, put children’s lives at risk, by ignoring safety concerns, REMOVE THEM. COMMON SENSE PLEASE!

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6 djd66 September 24, 2018 at 12:20 PM

Seriously??? This is the best you could come up with that this would be a safety hazard? That is the most ridiculous thing I have ever heard!

If you want to talk about safety hazards – How about discussing the 1,000+ cars that will be driving down a 1.5 lane country road if park central gets built – THAT IS A SAFETY HAZARD.

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7 Concerned Voter September 24, 2018 at 4:04 PM

Sorry missing the analogy — you are using bizarre logic. Losing a life isn’t important? Especially if it is preventable? Via zoning? Safety is the purpose of zoning.

See additional comments below and recent example of firefighters who were almost trapped in a restaurant / apartment fire. Your following comments are simply bizarre:

. . .”Seriously??? This is the best you can come up with that this would be a safety hazard.? This is the most ridiculous thing I have ever heard!”
Yes, djd66, loss of life and endangering and trapping firefighters — yes, I would consider this a safety hazard and preventable tragedy, djd66, through zoning (as would the rest of the free world, except you apparently).
Here’s a recent example of two firefighters almost trapped:

https://www.wmur.com/article/firefighters-battling-restaurant-fire-in-salem/21341581

Seems to most people that IGNORING EXAMPLES LIKE THIS COULD BE CONSTRUED AS GROSS NEGLIGENCE. People can be trapped or killed by restaurant fires spreading to apartments. Endangered human lives and trapped fire fighters are NOT STATISTICS.

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8 Kelly Roney September 25, 2018 at 9:19 AM

No, allowing apartments over restaurants is not gross negligence. It’s a non-zero but very small risk, probably on par with having an accessory apartment in house.

It’s really innumerate to cry that the sky is falling on the basis of one example and no statistics.

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9 djd66 September 25, 2018 at 12:59 PM

I could sit here and google 10 different types fires that people died in,…. It proves NOTHING in terms of the building they want to build being unsafe. My guess is a lot of those fires were in old buildings that were not up to the current building code. Regardless, based on your logic – should we not build anything because people could die in them?

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10 Louise Barron September 24, 2018 at 9:48 PM

djd66 This isn’t the best we can come up with. We can come up with more. It is only ridiculous to you. I do agree that Park Central is dangerous in terms of traffic, poor use of land, a negative impact to the neighborhood, and an area that was never meant for this type of a project. Without a doubt decisions made by boards here are almost always at the detriment to the residents.

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11 djd66 September 25, 2018 at 1:01 PM

Louise –

So do you think this type of building is unsafe?

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12 Downtown Resident September 23, 2018 at 9:31 PM

I’m confused as to why this mix use is being considered but when someone wanted to rent Capasso’s empty building for a mix use it was a no go. Can anyone explain how this is different? Serious question, not sarcasm in any way.

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13 Kelly Roney September 24, 2018 at 10:08 AM

I’m just starting to learn the Southborough zoning code, but it could be a district difference. The Capasso parcel is in Residence B, while the Newton-East Main parcel is in Business Village. A quick look at the town code didn’t confirm that, however, so I’d like to hear from someone who knows more than I do.

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14 David Parry September 25, 2018 at 7:04 AM

CAPASSO FARMS.

Kelly … You are correct. But here is a fuller explanation of why Capasso Farms has not been resurrected:

Capasso Farms is in a Residential District. This allows ONLY single family houses and farm stands, etc. It is deliberately limited to these very few uses, to protect the character and value of the residential district.

Whereas, the proposed multi-use building at 2 East Main is in the Village Business District, which specifically allows SMALL business and SMALL hotels, etc. (But not “apartments” per se).

All Districts can have multiple uses on the same parcel, but ONLY IF a Special Permit is approved for those uses.

Capasso Farms was a non-conforming business use in a Residential District. It was more than a traditional “farmstand”, in that there were many, additional products and uses, such as groceries. It lost it’s right to continue those business uses (called “grandfathered” rights) when it was abandoned for over 2 years.

Now it can only be used as a farmstand — (as defined in the dictionary, because there is no definition in Zoning) — UNLESS the parcel is rezoned allowing a new use. Such a rezoning would require a vote at Town Meeting … because no “use” variances are allowed, anymore, as a result of the fracas over the proposed Park Central project, where use variances were issued and, because of protests, Town Meeting subsequently voted to remove use variances from the Zoning Bylaw. Use variances are very controversial, and commonly outlawed.

I hope this explanation is helpful.

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15 Kelly Roney September 25, 2018 at 9:13 AM

Thanks, David.

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16 Downtown Resident September 25, 2018 at 1:24 PM

Yes, very helpful. Thank you

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17 Fire Marshall Bill September 24, 2018 at 10:57 AM

This fire fear is a red herring. So you can Google examples of fires breaking out in restaurants? You can Google anything to drum up fear–that doesn’t make your research methods sound, though. Anyone can Google crap to fit their argument, you aren’t alone.

Smoking is the leading cause of fire and death in the US. Let’s not get into fires caused by electrical problem statics either. If you use your Googles you will see that FEMA states that between 2011 and 2013 there are 0.3 fatalities out of 1,000 restaurant fires versus 1.0/1000 out of all other nonresidential fires. Of restaurant fires 67.9% of them are contained to the point of origin while only 0.3% spread to the while building. In another report that covers 2006-2010 only two fatalities in that period were attributed to fire caused by a commercial kitchen.

Given the level of building codes and fire prevention requirements such as sprinklers I would think it would actually be safer to live above one of these.

In the previous thread you go on about rural versus urban. While there may be more mixed use in urban locales that doesn’t mean that safety measures, building codes and inspections don’t exist in suburban and rural areas where, again, mixed use restaurants are not uncommon.

Lastly, it’s not even a certainty that a business with an industrial kitchen is even going in there.

But go ahead and keep frantically waving your hands.

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18 Concerned Voter September 24, 2018 at 3:49 PM

OK “Fire Marshall” Bill — loss of life apparently doesn’t factor into zoning?? Of course it does.

It does in the world of objective professionals. IT IS THE WHOLE PURPOSE OF ZONING.

It’s simply common sense not to invite the potential for fire fatalities or injuries to firefighters, “Fire Marshall” Bill. However, obviously the issue is not Google. Importantly, it is the fact that even one life lost is too many.

Loss of life is preventable. It is preventable through zoning. So stop blowing smoke “Fire Marshall” Bill.

Per your statement above, the fact that “it’s not even a certainty” that a business with an industrial kitchen betrays your lack of knowledge and/or insensitivity to loss of life. THE USE MUST BE CERTAIN AND AN IDENTIFIED USE for the application. And for any approvals. So “Fire Marshall” Bill, put that in your pipe and smoke it! And hopefully no individuals lose their lives going forward.

Prevention of loss of life is a CHOICE, through zoning. For the communities that lost that bet, and lives were lost, would they rezone given the chance? The families of those lost would urge it. But why invite the possibility to begin with? Fires move quickly, especially oil fires, Fire Marshall Bill. Here’s a recent example of two firefighters almost trapped:

https://www.wmur.com/article/firefighters-battling-restaurant-fire-in-salem/21341581

IGNORING EXAMPLES LIKE THIS COULD BE CONSTRUED AS GROSS NEGLIGENCE, “FIRE MARSHALL” BILL. People can be trapped or killed by restaurant fires spreading to apartments. Endangered human lives and trapped fire fighters are NOT STATISTICS, “Fire Marshall” Bill.

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19 Donna McDaniel September 24, 2018 at 11:55 AM

Gosh…am I the only one to remember when “apartment” was a dirty word??!!
We had to change zoning to allow units like mine with two attached condos! (Limited in this case to 2occupants, at least one over 55….)
The apts we have such as just before 495 are there under the (guise of) the affordable housing exemptions.. (..how many affordable in real life?)

Lots of things to consider…
Donna

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20 beth September 24, 2018 at 12:28 PM

For those of you following the comments, I thought you may want to see the letter from Town Counsel. I just updated the post to include it – but you find that here.

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21 Kelly Roney September 24, 2018 at 9:45 PM

Thanks, Beth.

Footnote 3 includes an assertion with no support. Certainly, in English, the word “hotel” includes “apartment hotel.”

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22 Former Resident September 25, 2018 at 4:05 PM

It would be such an advantage to the downtown if there were some businesses such as downtown Hopkinton has. A small cafe where people could linger or grab and go serving breakfast and lunch foods. A good Asian restaurant.Outside seating. Someplace to buy fresh fruits and vegetables. Downtown Hopkinton is a lovely destination

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23 Concerned Voter September 26, 2018 at 1:35 PM

Putting apartments above restaurants is dangerous. The emphasis needs to be on SAFETY” and putting prevention of the potential for loss of life over profits of developers.

https://boston.cbslocal.com/2018/06/13/salem-new-hampshire-fire-china-star-restaurant-main-street/
“A restaurant and several apartments were destroyed in a huge fire in Salem, New Hampshire Wednesday morning that left two firefighters hurt. . .the firemen relied on their training to get out. “They’re in zero visibility. They’re in high heat. The fire was burning above them and beside them, to the point that it sounded like a freight train was in the room and then this collapse occurred. The lieutenant relied on his training immediately and called the mayday. It was muffled but fortunately the operations chief heard it. . .” The firefighters were hit in the head and back by a beam in the collapse.

This is preventable, dangerous and tragic for all those involved in losing their homes and almost their lives. Preventable through zoning.

Shame on those who do not value human life or the lives of the fire fighters in this exact restaurant / apartment fire situation. Shame on you!

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24 David Parry September 27, 2018 at 3:06 PM

To the anonymous “Concerned Resident” (Whoever you really are).

Are you aware that the NEW building must have sprinklers and two exits? Are you aware that the Fire Dept reviews all plans? Apparently not.

Who are you, anyway?

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25 Concerned Voter September 27, 2018 at 4:00 PM

A concerned resident who apparently does not share the same opinion as you.

My opinion is that this village district should not allow for this mix of proposed uses. Period.

I am not for endangering lives. Including fire fighters.

I don’t find any relevance of your remarks in forming my opinion. However, you are entitled to yours. I base my opinion on my own factors, that includes the common sense of not putting commercial deep fryers under residential. I was a witness to a recent similar fire. (New construction with all the codes you are referencing.) I spoke with the employees of the restaurant, asking them why and how it happened. They responded that it was a fast moving oil fire with barely enough time for everyone to get out.

You will probably be dismissive of this. Frightening.

Also, I am not for increasing the density of that district for traffic and safety reasons.

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