March 31 2016

Special Town Meeting Called to Consider Civil Suit to Appeal ZBA's Decision on District Hotel

By: Rich Hosford

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, as was agreed to by the Town Meeting members calling for the special section and Town Administrator John Petrin. 

As reported previously, earlier this year the Planning Board attempted to appeal a building permit for a Residence Inn by Marriott because the plans include two stove-top burners in each of the rooms. Members of the Planning Board pointed to the Planned Development District (PDD) for The District which states “hotels” but not “residence hotels” are allowed on the site. They then pointed to the zoning bylaws that state hotels may not have cooking in rooms occupied by guests. 


However, representatives from National Development, which owns The District, said the use table of the PDD brings some ambiguity into the process by saying “full service hotels” with amenities 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. 


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 that no guest can stay for more than 90 consecutive nights or more than 150 within a twelve-month period. It also says the hotel has to be operated so that the average guest stay is no longer than 25 nights per year. It also stipulates that 25 of the 170 rooms will 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.” 


Ellis said what National Development should have done is come back to Town Meeting to get the PDD amended rather than go the route through the building inspector. 


“The basis of this is that they did not follow the right process,” she said. “Had they come back to Town Meeting and requested an amendment to change the type of the hotel, which is the correct process to make a change, Town Meeting would have voted on it. It probably would have gone through but they chose to go the route of asking for the interpretation of the building inspector.”

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. 

Ellis said the last point was simply logistical. 

“It would be difficult to get every member of Town Meeting together for each decision,” she said. 

She also said that the reason the Planning Board was listed as a plaintiff was a matter of legal proceedings and that the members could ask to be removed from the list. 

The warrant for the special Town Meeting was approved by the Board of Selectmen on Monday, as is necessary under the law. During the vote, however, Chairman Mike Runyan made it clear he was not in favor of the civil suit. 

“This is by no means an endorsement by this board for this appeal,” he said of the vote. 

Town Administrator Petrin said the vote was procedural and the board had no right review or disapprove of a warrant article for a special Town Meeting. The board need only vote to hold a meeting after at least 10 Town Meeting members call for a special meeting. 

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