Agenda - Planning Commission - 09/01/2016

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July 25 2016 1 Volume 10 1 Issue 14 Zoning Bulletin is f The ZBA rejected the Planning Board's argument that the two-burner cooktops rendered the Marriott a prohibited"residence hotel." The ZBA [ affinned the building pen-nit's issuance. I Thereafter,individual members of various Town bodies—the Planning Board,the Advisory Land Use Committee,and/or Town Meeting(collec- tively, the "Plaintiffs")—appealed the ZBA's decision. They again advocated that the Marriott, as shown on the building plans, was a prohibited"residence hotel,"not a"hotel," and thus the building permit was issued to NEEP in error. NEEP asked the court to dismiss the Plaintiffs' complaint for lack of standing. Plaintiffs must have "standing"—"a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy" (i.e., the legal right to bring the claim). Here, the Plaintiffs II did not claim individual standing.Instead,they asserted that they, as indi- vidual members of either the Town Planning Board, the Town Advisory Land Use Committee, and/or Town Meeting were "municipal officers" within the meaning of Massachusetts statutory law governing standing (G.L. c. 40A, § 17). Massachusetts General Law c. 40A, 17 provides that "any person aggrieved"by a zoning board of appeals decision or "any municipal officer or board""may appeal to the land court department,the superior court department in which the land concerned is situated." DECISION: Motion to Dismiss granted. The Massachusetts Land Court, Department of the Trial Court, Middlesex County agreed with NEEP that the Plaintiffs lacked standing to bring the appeal of the ZBA's decision. Accordingly, the court dismissed the appeal. In so concluding,the court held that the Plaintiffs—individual members of various town bodies-had no standing as "municipal officers"to bring the appeal. Nor, said the court, could those individual members act on behalf of the town bodies on which they served because those bodies had not formally voted,as a body,to join the lawsuit, and neither the Board of Selectman nor Town Meeting had authorized them to retain counsel. Moreover, said the court, "even if the [P]lanning [B]oard,the [A]dvisory [L]and[U]se[C]ornmittee,or even[T]own[M]eeting wanted to intervene, properly voted to intervene,and had properly authorized counsel to repre- sent 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 a"a municipal board or municipal officer,"within the meaning of the statute,the board or officer must have"duties to perform in relation to the building code or zoning, . . .and,more particularly,in the building code or zoning at.issue in the lawsuit," said the court. Here, the court noted that the only "municipal board municipal officer"with"duties to perform"in relation to the interpretation as to whether the Marriott was a "hotel" or a"residence hotel" was the town's building inspector and, on appeal, the Town's ZBA. Only those two entities were specifically 6 ©2016 Thomson Reuters