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 Marriotts 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 towns zoning bylaw, the towns 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 towns 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 boards 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 Marriotts 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 towns 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 Hotels motion to dismiss, and DISMISS this case, in its entirety, for lack of standing.
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 towns 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 Marriotts 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 boards 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 bylaws intent. [Note 19] In the zoning boards 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 permits 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 citys 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.); OReilly 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 [§17s 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 bylaws 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 towns 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).
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-Defendants motion to dismiss the complaint is ALLOWED. Judgment shall enter accordingly.
[Note 1] Plaintiffs must have standing a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy, see Sierra Club v. Morton, 405 U.S. 727, 731-732 (1972) for the court to have subject matter jurisdiction over the claims they have brought. See Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Court, 448 Mass. 15 , 21 (2006). If they do not have standing, the case must be dismissed. Id.
[Note 2] Even presumptive standing can be rebutted if the plaintiff cannot show aggrievement. See Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 n. 12 (2005).
[Note 3] To be aggrieved within the meaning of G.L. c.40A, §17, a plaintiff must show, by credible evidence, that he or she will suffer a definite violation of a private right, a private property interest, or a private legal interest, of a type that the zoning bylaw protects, that is special and different from the concerns of the rest of the community. See Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-493 (1989); 81 Spooner Road., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012); Standerwick v. Andover Zoning Bd. of Appeals, 447 Mass. 20 , 33 (2006); Butler, 63 Mass. App. Ct. at 441.
[Note 4] 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.); OReilly 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.).
[Note 5] Town counsel, who represents the zoning board and building inspector and initially also entered an appearance on behalf of the planning board as a defendant, has since withdrawn his appearance for the planning board. John Kelly, the Vice Chair of the planning board, is an attorney and signed the plaintiffs motion to add the planning board as an additional plaintiff purportedly as the boards designee. But, as he stated at the motion hearing, he has not been retained by the town to represent the planning board as its attorney. Such retention would need to come from the towns board of selectmen or, if the towns bylaws allow, by direct authorization and funding from town meeting. The selectmen have not authorized counsel for the planning board (only for the zoning board, whose decision they back) and, even if town meeting could itself authorize and fund counsel for the planning board or other municipal representative to oppose the zoning board in this case (but see Canner v. Town of Groton, 402 Mass. 804 , 807-808 (1988) which suggests that, having enacted bylaws authorizing the zoning board to make zoning determinations, town meeting cannot act contrary to that authorization once exercised), it voted not to do so at a special town meeting on May 9, 2016.
[Note 6] #3-NEEP is located at 400 District Avenue.
[Note 7] Zoning Bylaw, §18.104.22.168.C (New England Executive Park Planned Development District Zoning Provisions) Article 6.5 (Full Service Hotel uses shall be permitted within the PD Premises in the Areas designated on the Use Table and shall be defined pursuant to Section 2.37 Hotel, Motor Hotel or Motel of the Zoning By- Laws.); Zoning Bylaw, §2.37 (definition of Hotel, Motor Hotel or Motel).
[Note 8] New England Executive Park [PDD] Use Table, § 4.7 (i). The Marriott would only need a special permit if it had more than 225 rooms. PDD Use Table, § 4.7 (ii).
[Note 9] Zoning Bylaw, §2.69.1 (definition of Residence hotel/motel).
[Note 10] Zoning Bylaw, §22.214.171.124.C Article 6.5 (Any new Residence hotel/motel use as defined within the Zoning By-Laws shall not be permitted within this PD Premises.).
[Note 11] As noted above, if it is a hotel or full service hotel under the zoning bylaw, it can be built of right because it has less than 225 rooms, and if it is a residence hotel/motel it cannot be built at all, even with a special permit.
[Note 12] All restaurants and fast food establishments in the PDD require a special permit. PDD Use Table, §3.7. Drive-thru service of any kind is prohibited. Id.
[Note 13] Certificate of Decision on Special Permit Application.
[Note 14] The record does not indicate the court in which the appeal was filed (presumably, Middlesex Superior Court), the parties who appealed, or the grounds on which the appeal was based.
[Note 15] Zoning Bylaw, §2.37
[Note 16] Zoning Bylaw, §2.69.1. The remainder of the definition requires that they be located within 1,500 feet of the layout of Route 3 or the layout of Interstate 95/Route 128.
[Note 17] Since I decide these motions on other grounds, I need not and do not decide if the appeal to the zoning board was properly authorized.
[Note 18] Other convenience items include a small refrigerator, microwave, garbage disposal, and dishwasher. Presumably a limited number of glasses, cups and plates will also be provided.
[Note 19] [The] primary duty in interpreting a statute is to effectuate the intent of the Legislature in enacting it. Where the meaning of a statute is not plain from its language, we consider the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated. In doing so, we give substantial deference to a reasonable interpretation of a statute by the administrative agency charged with its administration enforcement. Hanlon v. Town of Sheffield, Mass. App. Ct. (May 13, 2016), citing Water Dept. of Fairhaven v. Department of Environmental Protection, 455 Mass. 740 , 744 (2010) and Commerce Ins. Co. v. Commissioner of Ins., 447 Mass. 478 , 481 (2006) (internal quotations omitted).
[Note 20] The conditions were contained in a detailed eight page restrictive covenant to be executed by NEEP Investors (as owner) and NEEP Hotel Realty (as tenant), explicitly binding on their successors, and recorded at the Registry of Deeds to ensure that theyd be known (and thus binding upon) those successors. Among the covenants provisions are limits on average guest stays to no more than 25 consecutive nights, any guests stay to no more than 90 consecutive nights or more than 150 total nights in any rolling twelve month period. No can guest use the Marriott as a residential address, voting address, or enroll children in the Burlington school system. No transitional housing services or counseling may be provided by the NEEP entities to hotel guests, and they agree that they will not agree to accept transitional housing placements of any kind. A breakfast restaurant must always be maintained, as well as a full-service restaurant, room service, and the usual hotel amenities (swimming pool, fitness center, business and event function space, and associated kitchen). The content of marketing materials is restricted. And quarterly reports on compliance must be filed with the town.