May 10 2016
In Close Vote Town Meeting Says 'No' to Lawsuit Regarding Hotel in The District
By: Rich Hosford
Town Meeting voted against joining a lawsuit and approving $40,000 for attorney expenses focused on a hotel in The District by a narrow margin during a Special Town Meeting on Monday night.
As reported on BNEWS, the Special Town Meeting was called to consider one warrant article that would have had Town Meeting join a land court suit to appeal the Zoning Board of Appeals’ decision to uphold a building permit for a Residence Inn by Marriott in The District (formerly New England Executive Park). The article asked Town Meeting to join the suit, appropriate $40,000 for legal counsel and to designate members behind the suit to spend the funds.
After a long discussion Town Meeting voted 56 in favor of the article and 59 against supporting it, meaning it failed by a mere three votes.
The reason the appeal is happening is because at least 14 Town Meeting members believe that the plans for the hotel violate the 2009 Planned Development District (PDD) bylaw that was agreed to by Town Meeting and National Development for the park, which was then known as New England Executive Park. The part of the plan in most contention is the inclusion of cook-top stoves which, according to the PDD, are not allowed, opponents of the building permit say. You can read more background on the debate here.
Earlier this year the Planning Board attempted to appeal the building permit through the Zoning Board of Appeals (ZBA). After multiple meetings on the subject, the ZBA voted to uphold the building permit on the condition the developer enter into a covenant with the town that had specific restrictions and conditions. These included restrictions on the length of time that a guest could stay in consecutive nights and a limit on the number of nights one could stay within a calendar year. It also stipulated that 25 of the 170 rooms would not have cook-top stoves. These conditions were made after discussions on the intent of Town Meeting when it approved the PDD in 2009 and the belief held by some that the desire of the body was to ensure that nobody lived in the hotel long-term.
The suit originally had the Zoning Board of Appeals, the Inspector of Buildings and the Planning Board as defendants, but the Planning Board voted to become a plaintiff during its April 7 meeting by a vote of 5-1-0 (member Ernie Covino voted against).
Much of the debate on Monday night was between members in favor who argued that allowing a developer to skirt the town’s bylaws undermined the authority of Town Meeting and the agreements it makes with businesses. They said the developer should have returned to Town Meeting and asked for a vote to change the PDD if they wanted cook-top stoves.
Those against joining the suit argued that it was not financially prudent and some also said the hotel developer, Finard Properties, had followed the process laid out in the PDD and therefore it was unfair to pursue a lawsuit.
Those who say the process was followed, including Finard Properties CEO Todd Finard, point to two things in the PDD for the project. They argue the PDD brings some ambiguity into the process by saying “full service hotels” with a list of amenities that are allowed. The use table also lists Select Service and Boutique hotels as being allowed, two terms not defined in the town’s bylaws.
They also highlighted a section of the PDD that said ambiguities in the language of the bylaw were to be resolved by the building inspector. Building Inspector John Clancy did approve the building permit for the plan after making some changes to the original, including removing ovens from the rooms and reducing the cooktop from four burners to two.
Town Meeting and Land Use member Shari Ellis, who has been leading the charge in the lawsuit, said there was no ambiguity in the bylaw by pointing to the definition of a full service hotel that states “no cooking” in the guest rooms, and said therefore the building permit should not have been issued.
“The developer claimed the bylaw was ambiguous and went to the Building Inspector,” she said. “We state the bylaws are not ambiguous. The Inspector of buildings does not have the authority to change the definitions in the bylaw so he exceeded his authority.”
Some members also argued that allowing the cook-top stoves without a court challenge would be a threat to the authority of Town Meeting.
“I think we’re all ignoring the article, which I think is an existential article on Town Meeting itself,” said Larry Gelberg, Precinct 5. “If you value Town Meeting and don’t think its authority should be circumvented by other parts of town, I think you should vote ‘yes’.”
“I personally view this as an attack by corporate America on homeowners and that’s why I support this going to court,” argued Paul Valleli, Precinct 3.
Finard Properties’ Todd Finard said in his view he and his company did exactly what the PDD says. He said they had questions so they went to the Building Inspector who made some changes to the plan and issued a building permit. When that was challenged they tried to work out an agreement with the Planning Board and were unsuccessful. After that they went to the ZBA when the Planning Board lodged an appeal.
“Now if you hear emotion in my voice it is because I’ve been in hundreds of hours of meetings trying to convince people of the good faith process we undertook,” he said. “We believe [Building Inspector] John Clancy did his job and that we did the right thing.”
Chair of the Board of Selectmen Dan Grattan agreed. The selectmen had voted 0-5 on a motion to support the article during a meeting right before Monday’s Town Meeting session.
“Town Meeting is the legislative body but once the PDD is written it is up to the Building Inspector to enforce and interpret it,” he said. “When he does that he is carrying out the executive branch authority. Given that, there was no reason for the developer to go back to Town Meeting. Had he not approved it the developer could have come to Town Meeting and ask for a change or go to the ZBA with an appeal.”
Then there was the question of cost. Many opponents of the article argued that seeing the case through to the end would cost much more than $40,000 (though any additional cost would also need to be voted on by Town Meeting).
“The $40,000 will not be enough,” Sonia Rollins, Precinct 6 and Ways & Means member, said. “I think the developer believes they fairly, in their minds, followed the process.”
Finally, there was an argument that perhaps the cook-top stoves are against the PDD but that there were issues with both how the bylaw was written and how the town handled things afterwards.
“I think we have a PDD that has issues and I think we have issues on the town side as to how this was handled,” said John Iler, Precinct 6. “We have undefined terms in the Use Table. In any contract that’s a poor way to write something, it introduces undefined terms that can confuse things. The Building Inspector’s report outlines how he went through it. I don’t agree with the interpretation but it makes sense - it is a valid interpretation of how to read the PDD.”
“I think it makes us look bad, I think our town will look bad,” said Doug Davidson, Precinct 2. “It may not be anyone’s fault - it may be we are understaffed. We are a small town with big city developments. I think we’re dancing around and ignoring the fact that most of this is on us, not the developer.
“They followed the rules we laid out,” Anderson continued. “You may not like it but to go back and punish a developer who spent millions of dollars and will defend it over a two-burner cooktop is a little crazy.”
After the vote Finard said he was pleased with the outcome.
“We’re very happy with the way the vote went and we’re grateful of the number of people in the Town of Burlington who took the time to understand what we through, what the PDD says, what the intent of the PDD was and saw to it that the Residence Inn was an appropriate hotel to be built in The District,” he said.
Ellis said she was glad she and the other 13 Town Meeting members behind the suit had the opportunity to highlight their concerns and make their pitch to the other members.