April 12 2016
Planning Board Joins Civil Suit Over District Hotel, Selectmen Express Disapproval
By: Rich Hosford
There was a lengthy, and sometimes contentious, discussion between members of the Board of Selectmen and a representative of the Planning Board on Monday night over the possibility of allocating legal fees for an appeal in Massachusetts Land Court.
As we reported previously, there will be a special Town Meeting with a single warrant article looking to appeal the Zoning Board of Appeal’s decision to uphold a building permit for a hotel in The District in a civil lawsuit in Massachusetts Land Court.
The meeting will be held on the same night as the opening of the May Town Meeting on the 9th for reasons of convenience and expense.
The reason the appeal is happening is because at least 14 Town Meeting members believe that the plans for the hotel, a Residence Inn by Marriott, violate the Planned Development District 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.
However, Town Meeting and Land Use member Shari Ellis, who along with 13 others called for the special Town Meeting and wrote the warrant, said their appeal of the decision is about cook-tops. It’s not even about the project per se.
“This has nothing to do with the hotel,” she said in an interview with BNEWS. “The reason we did this is because a PDD is zoning specific to an area, to allow certain things in mix use. It’s a document that is written up between the developer and Town Meeting.”
In the warrant article the 14 members Town Meeting members, which includes the members of Land Use, are asking Town Meeting to approve three things. The first is that the body will join the 14 in a civil suit “Shari Ellis et. al. v. the Burlington Zoning Board of Appeals, the Burlington Inspector of Buildings and the Burlington Planning Board” in Massachusetts Land Court. They are also requesting $40,000 for legal counsel since town counsel will represent the other side of the case. Finally they are asking that the body authorize that the Town Moderator direct the Land Use Committee to retain and direct the funds for the attorney.
Last week Ellis went to the Planning Board meeting to inform them that NEEP Hotel Realty, the group behind the proposed hotel, had filed an opposition in land court to the group’s appeal as an “intervener”. She said they are claiming the 14 Town Meeting members don’t have standing and she is concerned the judge will agree.
After much discussion the members of the Planning Board voted 5-1-0 to join the suit as a plaintiff (and therefor no longer be a defendant). This change, Vice-Chair John Kelly explained, would mean there is a plaintiff with standing, thereby making a dismissal of the case before Town Meeting votes on whether to join or not less likely.
“We can be a placeholder until the Special Town Meeting,” he said.
Chairman Barbara L’Heureux said she was at first reluctant to join the suit out of respect for the work done by the ZBA, even though she disagreed with the decision. In the end, however, she said she wanted to ensure that Town Meeting had its chance to be heard.
“I realized I had the opportunity to do what I thought was the right thing and fight this but you haven’t,” she said to Ellis. “I don’t want to get in the way of town meeting getting to do what it thinks it should do.”
All Planning Board members in favor of joining also said they would drop the case if Town Meeting votes not to join it.
Joining the suit has put the members of the Planning Board in a potentially difficult situation, however. Kelly explained to the Board of Selectmen on Monday that is it illegal for any member of a town board to appear in court without representation and that town counsel is representing the Zoning Board of Appeals and the Burlington Building Inspector in the case.
This means if a member of the Planning Board is called into court before the Special Town Meeting there are no funds to hire representation.
Chairman of the Board of Selectmen Dan Grattan asked if Kelly was asking for the board to approve funds in case planning board members are called into court. Kelly said he didn’t think it would happen and that the planned April 20th appeal by NEEP Realty would now be moot because a body with standing was listed as a plaintiff.
Grattan said he did not want to be called in an emergency situation saying that funds for legal fees were suddenly needed. He also said that because this was not on the agenda he would prefer the board to hold a special meeting, perhaps on Thursday, to vote on allocating the funds.
Other members of the board expressed disapproval of supplying the funds for the Planning Board even as Kelly maintained he was there to inform the board as to the current situation and didn’t think funds would be necessary.
“What I would like to say is that this town has worked very hard in the last 15 to 20 years to establish the robust commercial base we enjoy today,” Selectman Mike Runyan said. “We receive many benefits from a lot of hard work from the boards have done over the year. And businesses like Microsoft and Millipore, we welcome them with open arms. This whole issue, Jack, with the hotel and NEEP has gone on and on and on. There are many communities envious of our success and if you think for a moment they won’t use this whole NEEP thing as a recruitment tool for potential tenants I think we’d be kidding ourselves.”
“I want to go on record I will not be part of any lawsuit or make any effort to fund any counsel on this matter,” he continued.
Both Selectmen Chris Hartling and Joseph Morandi agreed.
“I feel like the Planning Board had a bit at the apple, your chance, with this,” Hartling said.
He said he would also not be in favor of allocating any funds for legal representation for the case.
“The 14 people that filed this did so at their own risk or own peril and I’m not feeling the need to continue this or authorizing even five cents on a continuation of what I feel is a mess," he said.
Morandi said he did not want to schedule a special Board of Selectmen meeting to discuss the matter.
In the end the board decided to take it up again at its next scheduled meeting on April 25.