April 28 2016
Ways & Means Votes Against $40K for Hotel Appeal, Developer Says Price Will be Higher
By: Rich Hosford
Ways & Means weighed in on the proposed $40,000 warrant article for legal counsel for an appeal of the Zoning Board of Appeals’ decision to uphold a building permit for a hotel in The District (formerly New England Executive Park). Nine committee members voted against supporting the expenditure and three voted in favor.
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 (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.
Ways & Means
However, Town Meeting and Land Use member Shari Ellis, who along with 13 others behind the suit against the Zoning Board of Appeals and the Building Inspector (the Planning Board was originally a defendant but has since switched to a plaintiff) called for the special Town Meeting and wrote the warrant. They said their appeal of the decision is not really about cook-tops. They argue that it is about maintaining the integrity of the PDD bylaws and Town Meeting’s authority to see them enforced.
“A PDD is an agreement between Town Meeting and the developer and it is designed to allow the developer leeway in what they do at a site but ultimately Town Meeting has the final say,” Ellis said at the Ways & Means meeting. “There are rules the developer has to follow. They are not guidelines, they’re laws. When they are not followed there has to be consequences.”
Town Meeting member Ernie Zabolotny and Planning Board Vice Chair Jack Kelly both argued that if those who brought the suit, which is being contested by Finard Properties, the entity behind hotel, are defeated it will undermine both Town Meeting and the PDD bylaw.
“If the judge says no to Town Meeting, this would set a new precedent,” Zabolotny said. “It would mean the building inspector can write the rules as he wants and the ZBA can support him. A cleverly worded letter could override any portion of the bylaw and therefor Town Meeting’s input would be essentially non-existent.”
Kelly said he estimates that about 20 percent of Town Meeting members are already opposed to PDDs and if the case is lost another 20 percent will turn against the concept.
“If we lose then the PDD is lost as a tool,” he said, adding that the bylaw can be a useful way to spur economic development.
Ways & Means Chairman William Beyer said he didn’t agree with that assessment.
“I don’t have such dire concerns about Town Meeting or the PDD,” he said.
Beyer also agreed with Todd Finard of Finard Properties that the process laid out in the PDD was followed. He said it states that if there is ambiguity then the Building Inspector makes the decision.
“Town government is split up and each part has different responsibilities,” he said. “It is the right of Town Meeting to follow this up but there are other players in town who have responsibilities by law. There was a process that was laid out. We can disagree on decisions by other parts of the government but I don’t see anything that indicates subterfuge or sly lawyers working their way around the law. I see a process that was followed.”
There was also the issue of whether or not the $40,000 would be well spent in a lawsuit. Beyer and Ways & Means member Sonia Rollins both argued the expense would not make economic sense.
“We have a ruling from the Building Inspector and the ZBA and if we want to further this process and spend money that’s allowed,” Beyer said. “I don’t see we have much to gain by doing it because in six months we’ll be where we are now.”
“The defendant is actually not Finard, it is the town of Burlington,” Rollins said, pointing out that town counsel will be on the defendants’ side. “I don’t think this is fiscally responsible.”
Question of Cost
Finally, there is the question as to whether $40,000 will be enough to cover the court costs. At an informational meeting Andrew Gallinaro, senior vice president, director of asset management at National Development, the company that owns The District, said his company and Finard Properties already have a lot of money tied up in the project and will defend it.
“We have a lot invested in this,” he said. “If there was further legal action, it would take a long time and cost many multiples of $40,000 to see it all the way through.”
He and Finard argued that instead everyone should support the hotel, a project they said would be beneficial for both The District and the town. Finard said the hotel’s annual tax bill is estimated to be roughly $450,000.