June 16 2016

Land Court Finding on Hotel Suit - No Plaintiff Had Standing

By: Rich Hosford

Though the lawsuit over the matter was dropped after Town Meeting voted 59 to 56 against funding it the Massachusetts Land Court still issued a finding in a proposed appeal of the building permit for a Residence Inn by Marriott in The District. 


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, a 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 against supporting it during the meeting in May. 




The reason the appeal was happening is because at least 14 Town Meeting members believed 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 said


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). During discussions members of the board said a big reason for joining the lawsuit was to give the 14 Town Meeting members standing in court. 


However, one of the contention behind those in favor of the project and who argued the building permit process had been followed, 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. 

Court Decision


It seems like Massachusetts Land Court agreed. The finding states that not only did Town Meeting members and Land use members not having standing, but neither did the Planning Board. 


Here is the conclusion: 


“Neither the Town Meeting (whose role is to enact the zoning bylaw and then leave it to the building inspector, the zoning board, and ultimately the courts to interpret and enforce its provision), nor the advisory Land Use Committee (which has only an advisory role in land use matters), have a part in this process. Nor, in this instance, does the Planning Board. As noted above, the Marriott can only be constructed if it is a ‘hotel’ and, if it is a ‘hotel,’ it is an ‘of right’ use which the Planning Board cannot prohibit. The zoning determination of whether it is a ‘hotel’ or a ‘residence hotel’ is solely for the Building Inspector, the zoning board of appeals, and ultimately (but only if challenged by a person or entity with standing to appeal’ for this court.” 

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