Town of Lenox
Planning Board
Minutes
April 12, 2007
Members present: Steve Sample, SS; Joe Kellogg, Pam Mackie, PM
Not present (with notice): Kim Reopell-Flynn, KRF; Kate McNulty-Vaughn, KMV
Also in attendance was Town Planner Joellyn Warren.
7:15 p.m. Public Hearing on a Citizen’s Petition To Amend Section 16 of the Zoning Bylaw to insert the following: Section 16.4.A(i) – Clinics or offices for surgical, medical, psychiatric, dental, or other health services for the examination or treatment of persons as outpatients, including laboratories that are part of such clinic or office shall be permitted as of right in buildings existing as of May 4, 2007; and if new buildings are to be constructed, then the use shall require a special permit as provided in Section 16.4B.
SS asked JK to read the notice. Following reading of the notice JK asked JW if the Town Clerk had certified the signatures on the petition. JW indicated that no issues have been discovered with the signatures and that there were more than the required ten signatures.
SS explained the process of the hearing to those in attendance. The Planning Board’s role is to hold a hearing in accordance with Mass General Laws. In response to the petition, the Selectmen must place the article on the warrant for Town Meeting. JK stated that the Board, following the hearing, must vote on providing a recommendation at the Town Meeting. SS asked JW who is the point of contact for the petition. JW stated that she assumed it would be one of the signatories but that the petition had been submitted, withdrawn and resubmitted and was unclear who would be representing the group.
Attorney Phil Heller, who had represented Berkshire OSC and Dr. Kevin Mitz on a failed variance request, stated that he would explain the petition but is no longer providing counsel to the petitioners. He stated that earlier in the day, the principals of Berkshire OSC contacted him to inform him they are dropping their bid to move to Lenox and the Aspinwell Shops. Atty. Heller argued that while this specific orthopedic group will not benefit from the zoning change, others might. He argued that the zoning amendment has merit and benefits the town.
Atty. Heller stated that currently any use allowed in the Gateway Overlay District is by special permit with standards. Here, where there is an existing building, land space issues have already been addressed. The proposed zoning change would allow a low impact use in an existing building only in a limited area, the Gateway Overlay District. Any new building intending to be used for clinic use would be subject to a special permit. Atty. Heller also brought forward a page from Mark Bobrowski’s Zoning Handbook relative to the fact that courts have ruled that business competition is not under the purview of a special permit granting authority.
SS asked if there were any questions or comments from the Board. JK stated that the Board’s responsibility is to look at the proposed use at the site not to revisit the project. PM added that she believes that this is an appropriate use at this location.
SS asked for public comment.
Franki Mahoney asked for a favorable recommendation from the board. She explained that she would support this use as providing patients an alternative place for treatment based on her negative experience with outpatient surgery at Berkshire Medical Center.
John Rodgers, general counsel at Berkshire Health Systems and Lenox resident, stated that he felt it is applicable for the Board to consider the impacts this project would have on regional entities. He suggested that rather than recommend this amendment now, it should be studied under the Board’s proposed comprehensive zoning review scheduled for Fall, 2007.
SS asked JK to read all letters into the record. A letter in opposition from Tom Romeo, 54 Reynolds St, was the only letter received. JK asked JW about a comment in Mr. Romeo’s letter regarding a determination by the Attorney General’s office regarding a zoning amendment that was ruled unconstitutional. JW and SS agreed they were unaware of any such determination in the recent past. JW said it could be researched if required.
SS closed the public portion of the hearing. Each member of the Board presented their position on the petition. JK and PM favored the petition and are unclear why this type of use is not currently allowed in this district since it is an appropriate business for this part of Lenox. SS felt that while the concept may be good and the type of jobs would be good for the town, a zoning amendment should be delayed until a comprehensive review is conducted.
Atty. Heller added that a vote at a Town Meeting now does not preclude the Board from further massaging the matter as a part of the proposed comprehensive zoning review this fall.
JK made a motion to recommend that the Town approve the petition zoning amendment at Town Meeting. PM seconded. SS again stated that zoning by petition is legal, but as a planner he recommends that they not further modify the zoning bylaw in a piecemeal fashion but rather hold off for comprehensive amendments.
SS asked for a vote. The Board voted 2-1 (SS opposed) to recommend approval. As a majority vote of the standing body (3 of 5) is required, the motion failed. JK will provide a report to the Town Meeting and note that while the Board was generally in favor, a majority vote could not be obtained to provide official approval.
Hearing closed at 7:45 p.m. Meeting adjourned at 7:45 p.m.
Respectfully submitted
Joellyn Warren
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