September 16 2019

Herb Chambers Suing Burlington Planning Board in Land Court

By: Rich Hosford

Herb Chambers, the owner well-known car dealership owner who has multiple locations in Burlington, is in the process of suing the Planning Board in Massachusetts Land Court. 


Chambers sent a letter to Town Meeting members informing them of the action. He said it is in regards to the project on Cambridge Street that includes breaking the joint Porsche/Audi dealership into two separate buildings that was approved by the legislative body in 2018. 


You and your fellow Town Meeting Members overwhelmingly approved the Zoning Bylaw Amendment to allow for the separation of the Audi Burlington and Porsche of Burlington dealerships at 62 and 64 Cambridge Street, respectively,” Chambers’ letter states. “After Town Meeting, we proceeded to secure our Special Permit and Site Plan approvals from the Planning Board. Despite ultimately obtaining approval from the Planning Board after months of hearings, we were unfortunately forced to file an appeal of those approvals as the Planning Board incorporated onerous conditions which will not allow the project to proceed.”


Specifically, Chambers said he is referring to conditions placed by the Planning Board during a special permit hearing on April 18 based on their interpretation of the bylaw. Members approved the application on the condition that no other brand of used cars be sold at those locations. They pointed to language in the bylaw, written by Chambers’ attorneys, that says each dealership be limited to a single brand. They also argued that they had other considerations to consider that Town Meeting did not have to review during its vote such as traffic, lighting and safety around extra curb cuts. 


“I’m struggling with this - I don’t think it’s in the town’s best interest for this dealership to be here but Town Meeting thinks it is,” Planning Board Chair Barbara L’Heureux said in April, adding that because of Town Meeting’s vote she would vote in favor of the special permit. “I think Town Meeting made a terrible mistake but it is their right to do that. I’m not happy about it but I will vote to support it.”  


Other members of the board agreed but, as pointed out by Planning Board member Jack Kelly, that vote included the condition on non-branded used cars. 


Chambers is arguing the bylaw language was meant for new vehicles and was included to assure Town Meeting and the Planning Board that they wouldn’t add a third dealership to the location. Not allowing the reselling of used vehicles obtained by trade-in, he argues, is overly restricting. 


“The Planning Board has chosen to erroneously interpret that language to mean that trade-ins other than Porsche or Audi vehicles cannot be kept and sold at the dealerships,” the letter states. “So, for example, if a customer were to come to the Audi dealership and trade in their Lexus to purchase an Audi, we would not be able to keep that Lexus on the lot and offer it for resale, regardless of its age, condition or mileage.”


Chambers argues that reselling trade-in vehicles of different makes that meet the standards of the dealership is standard practice in the car sale industry, including all other dealerships in Burlington. 


In a separate letter issued by Interim Planning Director Andrew Ungerson to a question posed by Attorney Mark Vaughan of Riemer & Braunstein, who represented Chambers before the Planning Board, he agreed with Chambers’ attorneys on the interpretation of the bylaw. 


“The question as I understand it, would a proposed automotive dealership be only limited to the sale or resale of a single brand of motor vehicle(s),” Ungerson wrote. It is my interpretation that a single brand is what will be primarily sold, and what will be primarily advertised as to what is being sold. As long as the automotive dealership has the required license (Class 1) for the sale of a motor vehicle in accordance with M.G.L. 140, sect. 58, the sale of a traded in used motor vehicle of other than that of the brand name primarily sold is an incidental/subordinate use and would be permitted.” 


During the April 18 meeting, the Planning Board asked Town Counsel if they were limited to the Building Department’s interpretation and were told they were not. 


Members of the Planning Board have discussed the litigation in executive session but said in a letter to Town Meeting they cannot discuss litigation publically until the issue is resolved. 


“The Planning Board is aware of the letter sent by Herb Chambers to Town Meeting members,” Chair L’Heureux said in the letter. “While we will not comment directly on matters that are the subject of pending litigation, rest assured that the Planning Board is, as always, working in good faith to find a resolution that is in the best interest of the Town, and to avoid unnecessary litigation. When agreement is reached between parties, and we are able to discuss this matter more freely, we will notify Town Meeting Members.”


According to Massachusetts Land Court documents the next stage in the proceeding will be a conference call on January 14, 2020.


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