SHARI ELLIS, MONTE PEARSON, DAVID WEBB, GARY MERCIER, JOHN O'KEEFE, ERIN ELLIS, JONATHAN SACHS, ERNEST ZABOLOTNY, FAYDEEN SATERIALE, CYNTHIA PHILLIPS, GENE ROSSI, JOANNE KINCHLA, PAT ANGELO and MYRNA SALTMAN v. JOHN ALBERGHINI, JAMES HALLORAN, EDWARD MIKOLINSKI, JAMES TIGGES, DAVID KELLY and ROBERT PACCIONE as members of the Burlington Zoning Board of Appeals; JOHN CLANCY as Burlington Inspector of Buildings; and BARBARA L'HEUREUX, JOHN KELLY, PAUL RAYMOND, ERNEST COVINO JR., JOSEPH IMPEMBA, WILLIAM GAFFNEY and CAROL PERNA as members of the Burlington Planning Board and NEEP HOTEL REALTY LLC.

Introduction

Intervenor-Defendant NEEP Hotel Realty LLC (“NEEP Hotel”) has a building permit to construct a 170 room Residence Inn by Marriott (“the Marriott”) at the 49.42 acre, multi-building New England Executive Park, just off Interstate 95/Route 128 in Burlington. The Marriott’s guests are expected to be short-stay travelers either with business at the firms in the Executive Park office buildings, or visiting patients at the nearby Lahey Hospital & Medical Center. Zoning allows “hotels” of this size to be built on this site as a matter of right, but prohibits “residence hotels.”

In accordance with G.L. c.40A, §§13-15 and the town’s zoning bylaw, the town’s building inspector is authorized to review building permit applications and determine whether the proposed use and structure are zoning compliant, subject to appeal and review by the town’s zoning board of appeals. The building inspector ruled that the Marriott was a “hotel”, not a residence hotel, and issued the permit. On appeal, after putting various conditions on the permit, the zoning board unanimously agreed.

The plaintiffs, acting pro se, have now appealed the zoning board’s decision to this court pursuant to G.L. c.40A, §17, claiming that the building inspector and the zoning board got it wrong. In their view, the Marriott as shown on the approved building plans is a “residence hotel”, not a “hotel”, and thus cannot be built. NEEP Hotel has now moved to dismiss their complaint for lack of standing. [Note 1]

None of the plaintiffs claim individual standing, nor can they. None is an abutter to the Marriott, an owner of land “directly opposite on any public or private street way”, or an abutter to an abutter within 300 feet of the Marriott’s property line (parties with presumptive standing), [Note 2] nor does any assert any individual aggrievement. [Note 3] See G.L. c. 40A, §§11 & 17. Indeed, the closest lives over three quarters of a mile and many streets away. Instead, they assert that they, as individual members of either the planning board, the town’s advisory land use committee, or town meeting, are “municipal officers” within the meaning of G.L. c.40A, §17 and thus have standing “without the necessity of showing that their interests have been harmed by the decision.” See G.L. c.40A, §17; Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989). They have also moved to add the planning board as an entity (currently named by them in their complaint as a defendant) as an additional plaintiff, contending that that board would be a “municipal board” within the meaning of G.L. c.40A, §17 and thus have standing without the need to show aggrievement. The planning board itself has not moved to intervene, nor could it do so without duly-authorized counsel to represent it. [Note 4] No such counsel has been authorized by the town, or appeared. [Note 5]

For the reasons set forth below, I find and rule that the plaintiffs are not “municipal officers” within the meaning of G.L. c.40A, §17, nor would either the planning board or the advisory land use committee be a “municipal board” with §17 standing even if that board or committee, properly authorized and represented, sought to intervene in this case. I thus DENY the plaintiffs’ motion to add the planning board as an additional plaintiff, ALLOW NEEP Hotel’s motion to dismiss, and DISMISS this case, in its entirety, for lack of standing.

Discussion

On October 5, 2009, at the request of NEEP Investors Holdings LLC (the property owner), the Burlington Town Meeting re-zoned the New England Executive Park — a 49.42 acre site bordered by Interstate 95/Route 128 on the south, the Burlington Mall on the west, the Burlington Mall Road on the north, and the Lahey Hospital & Medical Center on the east — from “general industrial” to a Planned Development District (“PDD”). The site is presently occupied by office and other commercial buildings and their surrounding grounds.

Broadly speaking, the PDD allows for mixed use commercial development of the site, including general office, commercial, retail, structured parking, open space, and accessory services related to each use. Some of those uses may be built as of right. Others require a special permit. The overall layout of the site is subject to Site Development and Use Plan (“SDUP”) approval for traffic flow and safety, pedestrian and bicycle circulation, signage, open space, landscaping, and storm water control. Both the special permits for the uses that need them, and the overall SDUP approval for the Executive Park, are the province of the planning board.

At issue in this case is a proposed six-story, 170 room “Residence Inn by Marriott” hotel (“the Marriott”) to be constructed and operated by Intervenor-Defendant NEEP Hotel Realty LLC at Three New England Executive Park (“#3-NEEP”) [Note 6] under a 99-year ground lease with NEEP Investors. If the Marriott is considered a “hotel” or “full service hotel” under the zoning bylaw, [Note 7] it can be built “of right” because it has less than 225 rooms. [Note 8] If considered a “residence hotel/motel” (a separate bylaw definition), [Note 9] it is prohibited in the PDD and cannot be built at all. [Note 10]

On March 19, 2014, NEEP Investors applied to the planning board for (1) a special permit for the uses that needed them, and (2) overall SDUP approval, for a two-phased development of five sections of the Executive Park: One New England Executive Park (#1- NEEP”), Three New England Executive Park (“#3-NEEP”), Six New England Executive Park (“#6-NEEP”), Seven New England Executive Park (“#7-NEEP”) and Twenty Four New England Executive Park (“#24-NEEP”). The Marriott, on #3-NEEP, was part of phase 1 and did not, itself, require a special permit. [Note 11] Rather, special permits were needed for certain of the other uses proposed on #1, #3, #6, #7 and #24 — for example, with respect to #3-NEEP, for the proposed restaurant to be attached to the Marriott, which would provide dining room and room service meals. [Note 12]

The planning board granted each of the requested special permits, as well as SDUP approval, for all five parcels. As reflected in its decision, it was fully aware that the building on #3-NEEP to which the restaurant would be attached would be “a Residence Inn by Marriott.” Its decision also noted that each of the proposed uses on the five parcels was to “comply with all special conditions and use regulations approved and adopted by the September 30, 2009 Town Meeting (voted October 5, 2009),” i.e. the PDD. This last was simply an observation. Absent a variance — the province of the zoning board of appeals, not the planning board — nothing could be built that was not zoning compliant, i.e. allowed by the PDD. The planning board itself had no power to allow any non-compliant use, and no role in zoning enforcement. These were the jurisdiction of the building inspector and the zoning board of appeals.

The special permits and SDUP approval were granted on June 19, 2014, [Note 13] filed with the town clerk on August 1, 2014, and subsequently appealed. [Note 14] The appeal was dismissed just short of a year later (July 24, 2015), and the Certificate of Decision on Special Permit Application was duly recorded at the Registry of Deeds on July 29, 2015. NEEP Investors then applied for a building permit for the Marriott, and the building permit was issued by the building inspector (who is also the town’s zoning administrator) on September 23, 2015.

The plaintiffs’ objection to the building permit is this. A “Hotel, Motor Hotel or Motel” is defined in the zoning bylaw as “[a] building or several buildings containing sleeping rooms for resident or transient guests with a provision for serving food in a public dining room, but no cooking in rooms occupied by guests.” [Note 15] In relevant part, a “Residence hotel/motel” is defined as “a building or buildings containing not less than fifty (50) sleeping rooms for resident or transient guests which may provide for serving food in a public dining room and/or which may also provide for cooking and private dining in individual rooms.”). [Note 16] On October 23, 2015, a member of the planning board staff obtained a copy of the Marriott’s building plans as approved in the building permit, saw that they included a two-burner cooktop in each of the guest rooms and, from that, concluded that the Marriott was not a “Hotel” but rather a prohibited “Residence hotel.” The staff member so informed the planning board’s Chair, and there then followed a series of individual telephone calls by planning board staff to the members of the planning board, one at a time, during which those members gave their assent to the filing of an appeal of the building permit to the zoning board of appeals, to be taken in the name of the planning board. The Attorney General later ruled that this violated the Open Meeting Law, G.L. c. 30A, §§18-25, and it is unclear whether the “appeal” so authorized sufficed to properly bring the matter before the zoning board. [Note 17]

The zoning board nonetheless heard the appeal. Rejecting the plaintiffs’ argument that a two-burner cooktop constituted “cooking” in the rooms within the meaning of the bylaw (rather than, as the Marriott argued, more properly viewed as a limited, occasionally-used guest convenience [Note 18] ) and thus turned the Marriott into a prohibited “Residence hotel”, the zoning board found the bylaw ambiguous and read “cooking” contextually in light of what it determined was the bylaw’s intent. [Note 19] In the zoning board’s view, as the bylaw heading indicated (its use of the word “residence”), that intent was to prohibit residential use. As interpreted by the zoning board, “the reference to ‘cooking in rooms occupied by patrons’ in the definition of Hotel, Motel Hotel or Motel under Section 2.37 of the Zoning Bylaws was intended to prevent long term/residential use of a hotel.” Decision, Findings, ¶3 (Feb. 23, 2016). Thus, after adding a series of “duration of stay limitations and enforcement provisions” as conditions to the building permit, all specifically designed to prohibit long-term residence at the Marriott, and ensuring that the Marriott would always be operated as a true “hotel” by further conditioning the permit on the continued maintenance of a breakfast restaurant, full-service restaurant, room service, and the usual hotel amenities (swimming pool, fitness center, business and event function space, and associated kitchen), the zoning board unanimously affirmed the permit’s issuance. [Note 20]

The plaintiffs are individual members of various town bodies — the planning board, the advisory land use committee, and/or town meeting — and they claim standing on that basis. But as such, they (as individuals) have no standing as “municipal officers.” See Harvard Square Defense Fund, 27 Mass. App. Ct. at 496 n. 10 (1989). Nor can they, as individual members, act on behalf of those bodies. Those bodies would have to formally vote, as a body, to join in this lawsuit, and then be represented by properly authorized counsel. See n. 4 & 5, supra; Carr v. Bd. of Appeals of Medford, 334 Mass. 77 , 80 (1956) (“The plaintiff…as a member of the city council has no [sufficient] interest in the subject of the city’s building code or zoning ordinances that he can, acting alone or with other members of the council in their individual capacity and not as a body, maintain an appeal under [§17].”) (cited and quoted in Harvard Square Defense Fund, 27 Mass. App. Ct. at 496. Town meeting has expressly voted not to intervene or fund any intervention, even if it could validly do so. Id. It is not clear whether the planning board or the advisory land use committee have voted to seek intervention, but it is clear that neither the board of selectmen nor town meeting have authorized them to retain counsel, and clear that, without such authorized counsel, they cannot appear in this case even if they want to. See Bd. of Public Works of Wellesley v. Bd. of Selectmen of Wellesley, 377 Mass. 621 , 624 (1979) (“It is conventional learning that a municipal department is not permitted to bring suit for the town without specific authorization from the town or from agents entitled to act for it — unless, indeed, there is governing legislation conferring the power on the department. The rule serves to prevent confusion or conflict in the direction and management of municipal litigation.”); O’Reilly v. Scituate, 328 Mass. 154 , 154-155 (1951) (“In the absence of legislative authority, it is settled that a department of a city or town has no authority to employ counsel. Benefit to the municipality is immaterial.”).

Moreover, even if the planning board, the advisory land use committee, or even town meeting wanted to intervene, properly voted to intervene, and had properly authorized counsel to represent them, they would have no standing to do so because none of those bodies are a “municipal board” within the meaning of G.L. c.40A, §17. To be such a municipal board or municipal officer, the board or officer must have “duties to perform in relation to the building code or zoning,” Harvard Square Defense Fund, 27 Mass. App. Ct. at 496 and, more particularly, in the building code or zoning at issue in the lawsuit. See Carr, 334 Mass. at 79 (“duties which relate to the subject matter”); see also Planning Bd. of Marshfield v. Zoning Bd. of Pembroke, 427 Mass. 699 , 702 (1998) (noting that “the provision [§17’s reference to ‘any municipal officer or board’] must be construed narrowly so as to minimize the class of parties who have suffered no legal harm, yet can compel the courts to assume the difficult and delicate duty of passing upon the validity of the acts of a coordinate branch of government”, noting that “the municipal board seeking to appeal must have duties which relate to the subject matter”, and noting that the “subject matter” in that case was not “zoning generally, but zoning in Pembroke, more specifically the Pembroke zoning bylaw’s application to a project to be developed in Pembroke”) (emphasis added; internal quotations and citations omitted). Here, the “subject matter” is whether the Marriott is a “hotel” or a “residence hotel” — a matter of interpretation and enforcement specifically delegated to the town’s building inspector and, on appeal, to the zoning board of appeals and, thereafter to the courts. See G.L. c.40A, §1 (definition of “zoning administrator”), §7 (charging the building inspector with enforcement of zoning regulations), §13 (appeal of decisions by the zoning administrator to the zoning board of appeals), §14(4) (power of zoning board of appeals “to hear and decide appeals from decisions of a zoning administrator, if any, in accordance with section thirteen and this section”), §15 (timing and procedure for appeals from decisions of the zoning administrator to the zoning board of appeals), §17 (appeals from zoning board decisions to the land court, the superior court or, in certain instances, to the housing or district courts).

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 provisions), 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. See G.L. c.40A, §§1, 7, 13, 14(4), 15 and 17 cited above. See also Planning Bd. of Hingham v. Hingham Campus LLC, 438 Mass. 364 , 366-371 (2003).

Conclusion

For the foregoing reasons, the plaintiffs’ motion to amend their complaint to add the planning board as an additional plaintiff is DENIED as futile, and the Intervenor-Defendant’s motion to dismiss the complaint is ALLOWED. Judgment shall enter accordingly.

SO ORDERED.