LENOX - Opening a new front in the hotel wars, Vijaysinh Mahida has filed an appeal in the state's Land Court to delay or block rival owner Joseph M. Toole's planned $10 million Marriott hotel project at Brushwood Farms.
Joining the Mahida Hospitality LLC appeal filed by attorney William E. Martin are Suresh and Anil Pandya, owners of the EconoLodge and adjacent land near Brushwood Farms.
Mahida's company has an option to purchase that parcel in order to build a Comfort Inn & Suites.
The complaint against the members of the town's Zoning Board of Appeals, who approved Toole's project on Feb. 12 by a 5-0 vote, cited a negative advisory memo from the town's Planning Board. The planners had voted unanimously against granting a height waiver for the four-story, 48-foot high, 92-room Courtyard by Marriott.
"Nothing has changed," Toole asserted on Thursday. "We are firm with our plans to build."
Adding that he was surprised by the appeal, Toole said he thinks his attorney, Richard Dohoney, will seek dismissal of the case in Land Court.
"The issue is the origin of the ZBA's authority to grant height waivers," Martin said on Thursday. "They acknowledge in their decision that there is no clearly articulated authority."
In his view, the town's zoning bylaw on multi-story projects is "ambiguous because we don't know what standards the board applied."
"Completely contrary decisions by these two Lenox boards create confusion as to what Lenox will, and will not, accept for a new hotel along the gateway to Lenox," Mahida wrote in a prepared statement. "We seek court guidance as to the standards by which future hotel projects in Lenox will be reviewed."
"It's unfortunate that Mr. Mahida is appealing the decision which appears to me to be supported by most of the residents of Lenox, the town officials and the unanimous decision of the ZBA," said attorney Philip Heller, who represented Toole before the town boards. "The appeal is to the economic detriment of the town and is certainly not in the town's best interests."
"I think, frankly, the complaint is wholly without merit," said attorney Robert M. Fuster, Sr., the ZBA member who wrote the decision approving the Marriott project. "The ZBA action was well thought-out, proper and in accordance with zoning bylaws and the historical application of those bylaws."
Fuster predicted that attorney Martin's appeal "will quickly go down to defeat through a summary judgment" by the Land Court to dismiss the case.
Acknowledging that he anticipated the appeal, Fuster said he is "optimistic that the zoning board will be vindicated, hopefully sooner rather than later."
"We paid meticulous attention to there bylaws," he added, "so this should be over for everybody in short order."
Town Counsel Kopelman and Paige of Boston will defend the ZBA, co-interim Town Manager Mary Ellen Deming said.
Toole and Mahida have been fierce rivals over plans for competing hotels off South Street (Routes 7 and 20) in Pittsfield. Toole sought to build a Marriott on land near Dan Fox Drive, while Mahida proposed a Hilton Garden Inn nearby.
Judge Daniel Ford of Berkshire Superior Court last month dismissed an attempt by a company associated with Toole, Eastern States Real Estate Management, to block use of an access drive to the proposed Hilton. Eastern States had purchased a small parcel next to the Hilton site last May.
Toole relocated his Courtyard by Marriott project to Lenox last December because of environmental complications at the Dan Fox Drive site.
Toole said that, following expiration on March 6 of the 20-day appeal period for the Lenox ZBA decision, he had planned to offer Mahida "a mutually beneficial resolution to our differences respecting his use of our land and reciprocal easement on South Street."
"I feel my competitor has likely derailed what could have been a mutually agreeable and peaceable solution," Toole added. "With financing in hand, he could have gone ahead with his project. However, with a vigorous appeal from Eastern States hanging over his title, no bank in their right mind would finance his project."
Toole explained that with his Lenox permits in hand, he would have been "very willing to work out a way for him to move forward" by not appealing Judge Ford's ruling by a March 14 deadline.
Acknowledging that he was "perplexed" by Mahida's appeal of the Lenox ZBA's green light for his project, Toole said his attorneys believe that Ford's written decision on the Hilton case, "replete with references to newspaper coverage of 'hotel wars' and issues related to my motivation, gave too little weight to the more important, relevant and voluminous case law which we presented, making it a very appealable decision."
Explaining his appeal of the Lenox ZBA approval for Toole's hotel, Mahida stated: "Having previously been personally turned down by Lenox for a hotel project, this appeal is a way to bring more certainty for future projects, including my Comfort Inn."
He was referring to a 2006 zoning board ruling against a Marriott he had proposed for a commercial zone adjacent to a residential neighborhood at the intersection of Housatonic Street and the Route 7 and 20 bypass.
To contact Clarence Fanto: email@example.com or (413) 637-2551. On Twitter: @BE_cfanto