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Zoning Board of Appeals Minutes, 05/06/2014



Zoning Board of Appeals
Minutes
May 6, 2015
Auditorium

Members present: Acting Chair Shawn Leary Considine, (SLC); Clifford Snyder, (CS); Al Harper, (AH); Robert Fuster Jr. (RFjr); Robert Fuster Sr., (RF)

Absent with notification: Chair Ethan Berg, (EB); Ned Douglas, ND
Staff present: Land Use Director/Town Planner Gwen Miller (GM) and Land Use Clerk Peggy Ammendola, (PA)Also present was Town Manager Chris Ketchen; DPW Superintendent Sean VanDeusen;  Rick Fuore, Water Department Foreman; Chris Wester, Vice President of Weston & Sampson Engineers, Inc.; Kien Ho of BETA
Front Yard, LLC, Elm Court, 310 Old Stockbridge Road (Map 3, Parcel 4), Special Permit for access to the resort via Old Stockbridge Road in Lenox, pursuant to the provisions of Sections 3.1.C.7, Section 9.4, and 4.1.4.  Continued public hearing from February 18, 2015, March 18, 2015 and April 9, 2015. The latter continuation was due to the illness of a Board member.

Representing the applicants were the following:
Attorney Nick Arienti of Hellman Shearn and Arienti of Great Barrington; Brent White of White Engineering of Pittsfield; Jon Dietrich, Senior Transportation Engineer of Fuss and O’Neill;
Architect Pam Sandler AIA; and Adam Hawthorne, of Travassa Experiential Resorts.  

At the close of the March 18th hearing, Attorney Arienti was asked to be prepared to address two issues.  One was the definition of “resort” and the other the proposed additional access to Elm Court via the southern driveway.

In regards to the definition, Attorney Arienti read from Section 10 of the Lenox Zoning Bylaw.

Resort: Building or group of buildings, a portion thereof designed for serving food in a public dining room and containing 15 or more sleeping rooms for transient guests together with both indoor and outdoor recreational facilities with a variety of activities provided which could be judged self-sufficient for the entertainment of the guests therein.

Attorney Arienti explained the steps taken to interpret the language in statues, ordinances and bylaws when there are no definitions, in this case there are no definitions in the Lenox Zoning Bylaw for “public dining room” or “recreational facilities or activities”.  Attorney Arienti stated that the Massachusetts Supreme Judicial Court has held that the court will enforce unambiguous language according to its plain meaning unless the literal construction would yield and ensure an unworkable result.  In this case, he said, the fact that the definition of resort in the bylaw plainly permits by plain language, serving food in a public dining room, requires those interpreting the language to enforce this unambiguous language plain meaning strictly that the dining room is in fact open to the public.  

Attorney Arienti said that the fact the resort definition states that recreational facilities with a variety of activities provided which could be judged self-sufficient for the entertainment of the guests therein does not, by any plain reading, suggest a resort can only serve overnight guests.   Rather, he said, this definition relates to the diversity of activities that the resort might provide which distinguishes a resort from merely a “bed and breakfast” or motel that may only offer sleeping accommodations.   This, he said, could not be reasonability seen as insufficient for constant or perpetual entertainment of its guests during their stay. In other words, guests staying in a resort could, if they wanted, restrict their visit at the resort without the need to leave the grounds for meals, entertainment, activities etc.  Attorney Arienti said that nowhere in the definition does it limit or preclude those activities only to guests.  He pointed out that other resorts in Lenox serve day visitors as well as overnight guests and provided the following examples:
  • Cranwell golf course, spa, multiple restaurants are all open to the public and overnight guests.        
  • Springlawn recently received approved special permits to have a public restaurant.
  • Canyon Ranch has a spa and related activities that are open to the public and overnight guests.
Regarding the proposed additional access to Elm Court via the southern driveway to be used for employees and deliveries, Attorney Arienti said that it is not a worthwhile suggestion for a number of reasons.   Having a second entrance a short distance from the main entrance will not reduce the volume of traffic on Old Stockbridge Rd. There will be the same number of vehicles with two entrances.  Fuss and O’Neill have indicated that this proposal increases traffic safety concerns with traffic entering and crossing over oncoming lanes.  This drive would remain open for emergencies and the existing use.  That existing use is limited use, which is for the General Manager of Elm Court who lives on the property with his family.  Making this a second entrance would require by the Lenox Zoning Bylaw, widening of the road within Lenox to 24 feet and the remainder of the road that is in Stockbridge.  Additionally, many grand and historic trees that run along the north side of that driveway and to the proposed parking lot would have to be removed.  This would fall under the jurisdiction of the Stockbridge Scenic Mountain Act. Attorney Arienti provided four photos to the Board to illustrate the density of the trees in that vicinity.  

Attorney Arienti concluded that Front Yard, LLC is committed to minimize any traffic impact to the greatest extent possible by directing employees and deliveries to access the site from the south and to structure the scheduling of employees and shift times outside of peak traffic period and the traditional rush hours.

SLC said that today the Board received another petition signed by a number of people in the neighborhood who mostly live in Lenox along with their proposal in which they assume that there are certain issues that have not yet been analyzed by the BETA traffic study Lenox requested.  Those issues listed were:
  • We should be provided with volume, speed and vehicle classification as part of the ATI data collection effort.
  • A 48 hour ATR speed data collection should be conducted during peak traffic season period that would provide information.
  • As there is some sense that the ITE Trip Generation, because it did not include special events that might take place at Elm Court, it is probably not adequately representing the trip generation for those events.
Prior to this hearing, SLC said that she gave this submission to Traffic engineer Kien Ho of BETA Group, traffic consultant for Lenox who has been involved in analyzing the traffic reports to make sure that the Board has adequate traffic study information.  She asked Mr. Ho:  Is this not already reflected in what has been provided or sufficiently understood given the data we already have?

Mr. Ho responded, but wanted to be sure that the information he gave would not be taken out of context because the requested information has already been identified in BETA’s review.  He said the first two issues are related.  He said that the reason BETA requested specifically the speed data information is the small sample size collected by Fuss and O’Neill.   From that sample BETA saw that the average speeds going southbound was approximately 38 MPH and going northbound was approximately 34 MPH, but BETA typically likes for a speed study to be a 48 hour true. The collection of this data was done in the winter, and BETA recommended that the proponent should collect during the peak season to validate the data and analysis.  They also recommended the traffic monitor program to collect data 12 months after the project is completed and during the peak season, and again 12 months after that, so there would be a total of three times.  Mr. Ho said that while BETA thinks sample size is small, they believe that these collections of data will be close if not similar. With regard to vehicle classification, he said that when one is collecting speed data; it is also good to collect the type of vehicles on Old Stockbridge Road.  BETA requested this information, though it is recognized that there is truck exclusion, but concerned that there is a potential of delivery trucks using Old Stockbridge Rd., therefore BETA requested that information too in order for them to review.

The last item has to do with the trip generation manual that is being used. There is not a land use code that specifically fits the proposed Elm Court project because of its uniqueness.  BETA requested that the proponent collect information on two or three existing facilities so that they could compare what kinds of trips could potentially be generated.  The proponent looked at a number of those facilities but found that not one matches this project.  Canyon Ranch and Cranwell Resort were suggested, but they are much larger and Cranwell has a golf course, so a comparison could not be made.  Mr. Ho said that based on BETA’s experiences, any projects that have a post monitoring program to try to validate the traffic analysis has always come out to be less than what was being projected in traffic studies.   BETA recommends the traffic monitoring program to make sure that they don’t miss anything and that they are on target.  The information, the speed data, the traffic monitoring program will not change the mitigation that BETA suggested for this project and will not change the escrow amount, because all this information, after taking in consideration, is pretty much the worst case scenario.

RF confirmed that the recommendations and mitigation measures Mr. Ho referred to are contained in the BETA memo dated March 17, 2015 and that the need to collect the data to validate the information from the proponents traffic study is something that is not needed at this time in order to adequately assess the petition.  Additionally, RF asked how it would be handled if the post construction monitoring does not validate the information.   Mr. Ho responded that mitigation is built in and gave an example that BETA has recommend a total of four electronic speed check signs, two will be installed prior to completion of the project, one in each direction.  In the event that the speed data indicates a need or if the volume has increased, the proponent would be responsible and two additional speed checks would have to be installed.  Mr. Ho said that he is satisfied with the requirements.

Public Comment:

Martin Kaplan- Mr. Kaplan said that he has been coming to the Berkshires for 30 years he and his wife have lived at Cranwell and Twelve Oaks.  They looked at property at Winden Hill, and Bishop Estate if they had lived there they would still support the project.  Should this project come to being, they would go and take advantage of the facilities.  They are concerned that there are too many chain hotels in the area and prefer the preservation and utilization of important historic treasures such as Elm Court to use and enjoy.  He concluded that it would be a shame to have a derelict Elm Court as it had been for years. Mr. Kaplan gave a letter for the file.


Scott Laugenour-He said that he has served on Town of Lenox Economic Development Action Plan Steering Committee and he supports the project and encourages the Board to approve the petition.
 
Carolyn Corby 232 Old Stockbridge Road- Ms. Corby does not support this project as she feels that it is too big for the neighborhood and disagrees with the traffic engineers about utilization of the southern entrance being unsafe.

Robin Getzen- Ms. Getzen is against the project and said that the benefit to Lenox is too great a price, a massive undertaking which will change lives.  She doesn’t feel that the Board has the information necessary to make a decision.  

Michael Shirley-Mr. Shirley said that he has lived at Old Stockbridge Rd. for 39 years in a converted barn at Elm Court and he feels this project is inappropriate and too large.  

David Naseman of Lee Rd.-He discussed the definition of resort vs. hotel and the Elm Court hearing in Stockbridge.  He said that his argument is that this is a hotel, not a resort, and therefore not allowed in a R1 zone.  

Carl Pratt-Pointed out that Canyon Ranch, Cranwell, Tanglewood, Shakespeare, Eastover, and Kripalu are all in neighborhoods and their presence has not decimated those neighborhoods or negatively affected property values.  He added that Lenox is a tourist town.

Mark Dove-He disagrees that Stockbridge would have to approve tree removal and noted that trees have already been removed.  He also questioned why the Board has not requested a business plan.  SLC responded that asking for a business plan has not been the prior practice of the ZBA.  Ms. Miller, the Land Use Director/Town Planner added that if the project is approved, there could be conditions which impose bonds or escrows, but this has not been negotiated.  RFjr. stated that if the project passes, conditions can be imposed and they would be binding, as well as the decision, on all subsequent owners.   

Attorney Alex Glover- She represents Carol Grossman of 227 Old Stockbridge Rd.  She stated that before the last meeting the Board posed some questions that she answered in writing to the Board on April 6, 2015 on behalf of Ms. Grossman.  A question was if there were any requested conditions.  She stated that Ms. Grossman and a number of others who oppose the project are requesting that the Board deny the Petitioner’s request, but if there were to be conditions, Attorney Glover prepared  and submitted a list to the Board on March 17, 2015.  SLC said that this may be relevant, but that would be discussed in the event the Board votes to approve the petition.  Attorney Glover does not believe the Board can legally permit this project as written because of the issue of public access.  She disagrees with Attorney Arienti’s interpretation of the definition of resort and feels that case law supports her interpretation.  Attorney Glover believes that Mr. Ho is saying that there are deficiencies in the traffic studies and she believes that validation of the studies should be provided prior to a decision.  She also  said that statements made by the applicant when before the Stockbridge Board were not included in the Decision and reminded the Lenox ZBA to keep in mind the discussions e.g., post permit traffic study and possibly requirement of traffic monitoring and this should be included in the Decision to be binding.  

Attorney Glover asked if the petition submitted by Joe Jackson included in the legal record.  SLC responded “No” with the explanation that she would say just in terms of what is a legal record, the Board did set April 6th as a cutoff date for additional correspondence, but she felt that the submission seemed to raise issues the Board wanted to address.  Ms. Considine added that the Mr. Jackson’s submission is a part of the public record because of the fact it was addressed, but otherwise everyone is treated equally.  Attorney Glover stated that everything submitted before the public hearing is closed has to be official evidence.  SLC responded that Attorney Glover could be right, but that maybe that is the distinction without a difference.  She added that the Board did recognize and tried to be open to let people speak and will read aloud as many letters as possible.  

Attorney Glover closed by saying the critical issues if the Board issues a permit are safety issues, traffic speed and noise as the impact on human beings that live there.

Joe Jackson- Mr. Jackson said that the petition he submitted was in in response to what was written in the BETA traffic review.  He was critical of Mr. Ho’s response to the issues raised in his submission and in particular Mr. Ho’s use of the word “probably” and asked that the Board honor the request stated in the petition.  

SLC responded that this was addressed by Mr. Ho, and said that to the extent it becomes part of an issue that gets addressed in the conditions if it is voted positively she feels it might address his concerns too.

Letters read aloud:
Linda and Sonny Gates, 301 Old Stockbridge Rd.-Opposed to the scale of the project. Concerned that it will impact character of the neighborhood, noise, and afraid it may be later sold to a hotel chain.   
Richard and Susan Grausman, 1 Stone Hill Rd. - Opposed to the size, traffic, noise.  It will disturb a tranquil neighborhood.
Debbie and Bill Winslow, Plunkett St. - Robustly supports, grateful when one offers to restore and maintain one of our architectural wonders, alternative would be to cut up into building lots.
Anne Selke, Old Stockbridge Rd. - Many concerns, road safety, impact on town services while it benefits Stockbridge, suspicious, wants them to submit business plan.
Terrence Cronin-Support, good for business and enhances the towns of Stockbridge and Lenox.
Collette and Wayne Lemanski, Frothingham Crossing-Have been a neighbor of Elm Court for 35 years, have seen Elm Ct. go from deteriorated to partially restored, number of rooms is necessary, failed twice as a hotel because it was too small

CS made motion and to go into the decision phase.

There was a brief discussion and it was decided to hold the motion.  

RFjr told Attorney Arienti that he was surprised by Mr. Ho’s testimony regarding having post construction traffic studies and asked if his client would be willing to continue until after the studies are done. Attorney Arienti asked to have a moment to speak to his client.  The Board took a five minute break.

Attorney Arienti returned to the Board and stated that if required, the applicant would be willing to provide any necessary information in order to make the Board feel more comfortable in making their decision.  He said that there are lots of variables; one of which was timing that is yet to be determined; when could this happen in the length of time the meeting would be an open meeting and not closed; and whether or not by continuing the meeting for any period of time if additional information outside of this one issue could be put in the record.  They are willing to consider RFjr’s request, however Attorney Arienti wanted to re-enforce the fact that both of the engineers, including the town’s own engineer have put in writing numerous times and stated again at this hearing, that the information is valid.  The methodology used and entered on the record by Fuss and O’Neill meets the required standards in every case.  With regards to ITE trip generation, Attorney Arienti pointed out that BETA said in their memo of December 31st that found the trip generation for the study was in accordance with the trip generation manual methodology.   He said that the right methodologies were used by Fuss and O’Neill regardless of the fact that the sample study was a small and it was done per the standards required of professional traffic engineers. With regards to volume, speed and vehicle classification the use of ATR, according to engineering manual, the use of speed radar guns for spot speed study is an accepted industry practice. That methodology measured speed by hand and also measured the hand count that was done and this is an acceptable standard.  In conclusion, Attorney Arienti said that to the extent that additional information is required by an additional methodology that goes over and above the industry required standards, they would be willing to do if it is an absolute requirement by the Board.  Mr. Ho, he said, does not see this as a concern because the basis of the methodology used was the proper basis.  

AH seconded the motion to into the decision phase.  The Board voted to agree 4-1.  RF cast the dissenting vote.

SLC explained that four votes in favor would be required for the petition to pass, and that if the request was denied the petitioner could not come back before the Board for a period of two years unless the petition was substantially different.  They were given the opportunity to continue or withdraw.  Attorney Arienti said they would like to proceed.   Attorney Arienti, assuming a favorable vote, asked if they would be able to participate with regards to conditions.  SLC replied in the affirmative, saying that people could provide suggestions for conditions.  

The Board members each voiced their opinions regarding the proposal:

CS said that for forty years Elm Court has been decaying and been vandalized.  The Vanderbilt family cannot sustain it as a private residence and they have tried small hotels but they have failed.  He noted that everyone has ideas on how it should be used, but no one has come forward to put their idea into action.  The applicant is asking for a special permit, not a variance.  He stated that when Winden Hill, Shakespeare & Company, Hillcrest, Stone Hill and Bishop Estate were being developed they probably   engendered naysayers and now people in these existing properties that probably were not popular initially are now opposed to this new idea.  He said that people have tendencies to buy houses next to a property that is zoned for a use and complain later when somebody wants to use it for that use.  Initially, CS said, he thought the project could be smaller, but came to realize that these resorts/hotels need a certain number of rooms to be stable for weddings, conferences, conventions and meetings.  If they haven’t the rooms, they do not get these uses.  With regards to the economy, CS said that GE, Sprague, Mead, Lenox Machine, Crane, the prep schools, paper mills are gone or greatly diminished.  Lenox is a resort community, a tourist based community and this is a clean industry.  This will provide jobs and it may help the area in the traditional off season.  It will bring money into the community, provide tax revenues and help all of the venues in the area, e.g. music, theatre and museums, etc.  Regarding the traffic issues, CS said he can’t determine if Old Stockbridge Road is a meandering country road or a speedway as it varies depending on who is getting up and what they want to say.  He doesn’t think that traffic will present a significant problem as the road is built for more traffic than it currently gets.  He said that it is a main artery to Lenox and over the years there are a lot of different users and the traffic has varied significantly.  CS believes it is possible that additional traffic may slow down traffic. He believes that everyone speeds on Old Stockbridge Rd. Kripalu and Cranwell are larger facilities and they do not have a traffic problem.   CS does not think that Frothingham Crossing as an access to the southern entrance for trucks, staff or commercial vehicles is either suitable or viable. To make such changes the road would have to be re-done.  Speed sign indicators may help with speed control. CS said that he is comfortable with the review and opinion of the Lenox DPW regarding water and sewer.  Noise can be regulated and most resorts don’t want excessive noise to bother their guests.  In speaking about access, CS favors Elm Court being open to the public and stated a person going to dinner, having a drink, walking the grounds or using the spa are guests of the resort.  Having access is beneficial to the community as one doesn’t often have a chance to have dinner or drinks at an estate setting such as this.  He noted that there are other similar facilities in the area that are open to the public without problems.  He feels that much of the talk about what is a resort or a hotel is missing the spirit of the law.  This facility should be open to the community-public access, guest access.  He feels when the public enters the facility they become guests.  CS has concerns about a sidewalk and hopes that there are no plans to cut down trees to put in a sidewalk.  He said that with big projects such as this, until it is in operation, there is no way of knowing how some things will be and gave some examples such as screening, noise, lighting, signage, how many events etc., so the Board will follow up with a review in a year or two.  He does have some concerns about the viability of the project, future of the economy and competition in the area and asked about a construction bond and how it works.  

AH said that he applied the standards in the bylaw: “The adverse effects of the proposed use will not outweigh the beneficial impact to the town or to the neighborhood.” and commented that the bylaw contemplates that there will be a balancing between the adverse effects and the beneficial effects.   He then stated that Elm Court is one of the remaining great cottages that was converted to a hotel/inn at some time in the past and then fell into disrepair almost meeting the fate of the bulldozer. A valiant attempt was made to restore by a single owner, but it was not economically viable. The proposal is to restore an incredibly important historic cottage and add sufficient rooms so that it can be a viable economic engine.  The adverse effects as he sees it were the concerns “eloquently stated” by Barney Edmonds, and passionately stated by Gregory Whitehead, Joe Jackson, Attorney Glover, and Robin Getzen. AH said that he analyzed and categorized and determined that there were four areas of concern and they are: Increase of vehicular traffic and perhaps increased speed; increased noise -more trucks, cars and outdoor events; an increase in pedestrian traffic and safety concerns on the road;  increased light pollution.  AH said that these areas of concern can be mitigated with very strict special conditions.  The beneficial impacts are: The preservation of a Great Estate cottage.  He said that both Bob Romeo, a former member of the Planning Board and Olga Weiss, Chair of the Lenox Historical Commission, have spoken passionately about the need to continue preserving these great cottages that are so important to the history of Lenox.  This proposal protects open space which is a great premium and a very high value. It will also increase tourism and commerce. It will provide at no cost to the town the repair & upgrade of the water and sewer lines and the town will receive water and sewer connection fees as well as usage fees. If desirable, at no cost to the town, there may be a sidewalk.  There will be employment for construction and later for resort work and a very big benefit is that Lenox will get a marketing boost as a result of the proposed marketing plan for Elm Court.  AH said that the beneficial impacts greatly outweigh any adverse effects and he had considered all six factors that are required to be considered for granting a Special Permit.  Much of the character of Lenox is bound to its history as a summer resort for the very wealthy who came here because of the beauty and built incredible cottages that are a part of the fabric of this community.  These cottages are extremely costly and difficult to maintain and deteriorate very rapidly if not cared for.  This proposal provides for a mechanism to restore and conserve Elm Court which is extremely important. It also protects open space and the beautiful vistas.  Lenox will benefit from increased tourism and commerce and will attract new and perhaps younger people who like the visitors before them may decide to make a new home in Lenox. Regarding traffic, AH said that one of the biggest concerns has been the impact to Old Stockbridge Rd. including the intersections at Route 7 to the south and Walker & West Streets to the north. AH said that three reputable traffic engineers have agreed that the overall impact is minor and any adverse effect can be mitigated by traffic calming measures. AH said that the BETA expert hired by the town has no disagreement with findings of Fuss and O’Neill and that he finds acceptable the conditions imposed by BETA to have post construction traffic studies and traffic calming measures.  Both the Police Chief and Fire Chief have stated that they have no safety concerns but strongly believe that a sidewalk would increase pedestrian safety.  All parking and loading is contained on the site and other reductions in traffic disruption can be incorporated in the special conditions that will require service employees and construction traffic to be directed off Old Stockbridge Road to the maximum extent possible.   The Lenox Police Department, Fire Department and EMS are capable of providing adequate public services.  Regarding the character of the neighborhood, AH said that it is largely residential and beautiful, but it is already punctuated by commercial development which includes a B & B, Hillcrest, which is a large residential school, Shakespeare & Company, an elderly residential facility and the Lenox Police Department.  Other than an increase in traffic, AH finds that there would not be any visual impact to the neighborhood.  Regarding the natural environment, the proposal is limited to future development of the property therefore the impact to the natural environment is positive.  The new structures will be hidden from view and placed in close proximity to the existing cottage.   Regarding income potential and fiscal impact the Town of Lenox will receive economic benefit from increased visitors who will be shopping and dining here.  There will be no adverse impact on services.  The tax roll benefit will be small while impact on employment will be a substantial benefit. AH concluded that he has prepared a long list of conditions.

SLC-The Board has taken into account all that has been provided by the neighbors, other residents and the experts.  The Board does not have the background and education to make some of these determinations and must rely on the experts.  They are concerned about the impacts of projects because they must balance whether the adverse effects outweigh the benefits.  SLC believes that there are significant impacts and they have been listed well and comprehensibly by CS and AH.  She believes that some who oppose the project are fearful of their perception of what this project will bring about, but no one can know the future.  From the perspective of Bob Romeo, one of the authors of the Great Estate Bylaw, the existence of it within the zoning bylaw is significant for this Board’s determination.  Although Elm Court is not a Great Estate it is in a zoning district that embraces our Great Estates Bylaw.  SLC thinks the use as proposed is fully contemplated in the town’s bylaw.  She does not agree that there is some technical definition of resort that we should be concerned about.  She has read back and forth the brief on this question and does not believe that there is a problem.  With respect to the six items previously mentioned by CS and AH, the most concern for her is traffic flow, safety and adequacy of municipal services.  Those concerns need expert overview.  The petitioners have presented information provided by their experts and it has been reviewed by the town’s experts who work for the people and this Board. SLC feels that it is necessary that the Board look to these experts as their areas of expertise are municipal services and traffic flow.  With respect to the other issues, she thinks that the community needs access to Elm Court.  The proposal will preserve a mansion as our bylaw contemplates and a lot of open space.  This property could be a subdivision as our bylaw contemplates subdivisions also.  The Elm Court proposal is allowed in our bylaw and specifically allowed in this district. With respect to neighborhood character, she understands what the people are saying and that they fear that the neighborhood character will change with this project.  If this project is approved conditions can be placed in the decision that are time limited and ownership limited, e.g. if Frontyard were to sell the property to say, Marriott, a condition could be included that would mandate another hearing process with the ZBA.  Additionally a condition could be a requirement that the applicant will return and the decision be reviewed by the ZBA in 2-3 years to what has actually happened there in terms of traffic impact.  This, she feels, would be a very useful way to go about this rather than extend this hearing for 6 months to get the traffic impact for the summer.  In conclusion she said that she is concerned about the southern entrance and realizes that Frothingham Crossing is a bizarrely laid out road  but the idea of using a southern entrance is an issue that can be addressed in a condition if there is a favorable decision or potentially at a later time if this is a time limited special permit.

RFjr- He said that he has read all of the correspondence numerous times and has listened very carefully to everything that has been in the proceedings. He agreed with the vast majority of what CS, AH and SLC said and overall he is in favor of this project, however, he said he was not convinced the adverse effects of the proposed use outweighed the beneficial.  He said that he was stunned when Mr. Ho said earlier that further studies were needed but that he also didn’t think it would make a difference and that it would not change the traffic mitigation suggestions.  RFjr said that may be the case, but that was not good enough for him.  He said that he was not actually opposed to the project, but just wanted more information.

RF – He thanked everyone who submitted documents especially those who supplied multi page documents; Attorneys Glover and Arienti for their insightfulness and helpfulness.  He doesn’t agree with Attorney Glover’s interpretation of the definition of “resort” and said that the case law she has cited is an entirely different situation.   (Daniel Y. FAN, Plaintiff v. Kate Clark FLORA, O. Mario Favorito and Gerald C. Vigneron, as they comprise the Board of Appeals of the Town of Concord, Defendants)  While he has a lot of respect for Mr. Ho, RF was surprised to hear Mr. Ho say that he needed to further collect data to validate the study, but when RF asked, Mr. Ho said that he is satisfied with the results as conditioned and agreed upon by Fuss and O’Neill.  RF said that his concerns him.   He stated that it seemed that there were hundreds of people who seem opposed to the project, some for emotional reasons and some for reasons he didn’t give credence, but he shared their concerns and said that the Board would take those concerns into consideration.  He felt that the traffic study could have been done long ago as the project has been planned for some time. He is concerned for pedestrian and traffic safety.  RF said that he has studied over the years the criteria for special permits and the Board has to make a written determination that the adverse effects of the proposed use will not outweigh its beneficial impacts to the town or the neighborhood.  He stated that the downtown will probably benefit, which is a very important part of Lenox and a value to our community and all of the residents, but said it is a tiny segment of the town. He doesn’t see a bigger impact on the town.  If we are going, RF would make it a condition that the proponents will improve the water and sewer connections and that it would be done before they open for business. He is not satisfied that the increase in volume to the wastewater treatment will not prevent other neighborhoods from tying into the sewer.   Regarding the community needs served by the proposal he believes that the business community will benefit, but Lenox has a larger community it needs to be concerned with.  In terms of traffic flows and safety RF said he is not certain about that and thinks we have to give more thought and attention to community concerns in that regard.  In terms of community needs to be served, there is potential economic impact for this town.  Stockbridge benefits almost exclusively, getting the room tax and real estate tax.  Hopefully our downtown restaurants and shop will benefit, but Lenox has the burden. Regarding neighborhood character and social structures, according to the plans and description the addition will not be visible from the road.  The proposal is to preserve the character of the mansion and that is an important, significant part of Lenox.  He would like to see it maintained. This property could be used for something else, e.g., condos, homes which would be less attractive and there would be a lot less open land. The impacts on the natural environment will be positive, as the open space will be more beautiful than it is now.  RF concluded that he has his concerns.

SLC said that tonight Mr. Ho tried to address the issues brought up in the latest petition by Mr. Jackson, but asked RFjr if there was any need to ask further questions of Mr. Ho to clarify his understating.  RFjr said that Mr. Jackson’s petition has nothing to do with his hesitation to vote, that he has had concerns since before the last scheduled meeting (not held due to illness of a Board member). He feels that there are at least two traffic studies that could have been done earlier, and thinks that it would be unreasonable and irresponsible to make a decision until the Board sees the results of the other traffic studies.   

RF said that he wasn’t ready to vote and said that he had made specific notes regarding the March 17, 2015 BETA response and cited #3 and paragraphs 7,8,14, 16 and 19.  He wants to see them addressed.

AH said that the Board has an expert (BETA) who concurs with finding of Fuss and O’Neill and the Board should rely on the experts.

SLC said that she agreed and that if the Board voted tonight those issues that could be dealt with in the context of reality instead of the context of what might happen if we do a traffic study next summer.  Her opinion was that the Board should rely on the experts and Mr. Ho.

Mr. HO said that he felt that he needed to clarify his information to the Board.  He said that the traffic study by Fuss and O’Neill was conducted following industry guidelines and standards, albeit small, it was not wrong.  BETA wants Fuss and O’Neill to collect more data so that their previous studies can be validated.  That study, which will be for speed, will be done this summer during peak season, and then at 12 months and 24 months, and that will include trip generation.  Since the proposed use is unique one cannot rely on the ITE Manual, so Canyon Ranch and Cranwell were recommended to be used as models.  Those uses  at both of these resorts are larger than this proposal, so they were not comparable.  Mr. Ho said that in this case, the only way to validate is to do what is done with other unique uses, and that would be to do post monitoring-trip generation when the resort is fully built. This method has been used in a lot of projects which were also unique.   In conclusion he said, there are three sets of data requested by BETA. The first one is this summer when the peak season begins, and then the two at 12 months and 24 months which are post construction and he has asked for speed and vehicle classification, specifically heavy vehicles.  Old Stockbridge Road has truck exclusion, so the volume is low, but BETA wants to validate that.  
CS and AH stated that they were comfortable with voting, but RFjr said he still believed that there should be a peak season study before construction.

SLC suggested that there could be a condition to limit the effectiveness of the special permit.

RFjr said there needs to be a plethora of special conditions, but still argued that he didn’t understand how the Board could approve before the study is done.   

SLC said that she didn’t understand what the issue was if data was already collected.  Mr. Dietrich agreed, other than that BETA just wanted a larger sample size.  He said that data was collected by a different method.  It was collected for purposes of calculating site distances of driveways and typically they would not need necessarily a 48 hour portrayal of the speed data.   He stated that sometimes they just use a car following method where they drive with traffic a repeatedly # of routes.  This is an acceptable method that is not used much, but they have done it before.  He said that they actually measured the speed using a radar gun to get a bunch of samples so they weren’t guessing what the speed was. He thinks that the question raised by the town traffic consultant is they tend to try to do a larger sample size.  Though not required, Fuss and O’Neill are fine with the request; however he said it is a big concern for the time that is involved and cost. Mr. Dietrich said that he wanted to be sure they know what they are to do with the data when they get it. He understands they will compare it with their spot speed studies that were done before and that will tell them what the average speed is which they have used before, what the  85th percentile speed is,  which they use for posting the speed limits and also get info on the number of trucks on the roadway for truck classification information.  In addition the traffic counts will be a comparison with the traffic count they did previously in 2003, 2012, and 2014.

Mr. Ho said that the proponent was correct.  They have collected the speed data, but BETA’s concern is the sample size which is small.  The speed information is to determine three things according to Mr. Ho.  One is the speed check signs.  BETA recommended four, but two have to be installed prior to the completion of the project, and the other two depending on the post monitoring traffic program result. The second has to do with site line analysis which uses the 85th percentile speed.  The last, the method used to collect the speed is not being questioned by BETA, but the sample size is.  BETA likes to see at least 25-35 samples.  When BETA did the review, it was in the middle of the winter.  The proponents could not do this study in the winter, but have to wait until the peak summer season.   BETA recommends that Fuss and O’Neill to use a simpler method, rubber hoses, to collect data.

AH, referring to an earlier statement about the result of a study in which the average speed going northbound on Old Stockbridge Road was approximately 34 MPH, asked Mr. Ho if the new study were to show that the average speed was up to 36 MPH, how would it be determined if  whether or not that was a significant increase.  Mr. Ho said that it is already assumed the speed is going to be higher.  That is why BETA is recommending the installation of two of the speed check signs prior to the opening of the proposed resort.  

Discussion ensued regarding different scenarios should new studies reveal significant increase of speed and mitigation measures that BETA would recommend.  Included in those measures was possibly a speed bump on Frothingham Crossing if more people were taking that route, and to add the third speed check sign.

SLC then said that if the Board decided to vote, instead of adhering to conditions BETA has suggested the Board could simply say that there has to be repeated speed studies including this upcoming summer and there have to be three of these mitigation devices installed instead of two.  Mr. Ho responded that because BETA is recommending  two speed check signs to be installed prior to the completion of the project  at locations not yet to be determined, he thought it would be better that the condition be based on the count done in the peak season.  Based on that information gathered at that time, the location of the two speed signs would be determined and if more than two would be required.  They would be put up prior to occupancy.

RFjr asked Mr. Ho if he could envision any results of the study that couldn’t adequately be mitigated and as a result the project should not happen.  Mr. Ho responded that based on his experience, and he has reviewed hundreds of projects, the answer would be no.

If the results of this summer’s study indicated that two speed check signs were not adequate, Mr. Ho would recommend adding a third one.  The devices could be either powered by electricity or solar and would be permanent.  It would show the posted speed limit and it detects the speed of the oncoming vehicle.  If the car is going at the posted speed or below, the speed check sign would merely flash the speed, but if the car is going above the posted speed limit, the sign would flash “Slow Down”.  Examples were shown to the Board by Mr. Dietrich and he stated that the ones proposed for Old Stockbridge Road would be similar.

Speed limits are set by Ma DOT on all roads with the exception of a street which is within a school zone.  That situation is under local jurisdiction.   With regards to the speed checking devices, Mr. Ho said that it is a good practice to consult the home owners regarding the placement of it.  They avoid placing it in front of someone’s home where it would be an eyesore to them.  

CS said that until the resort is operational, speeds cannot be known.  With the other two studies that are to be done post construction speed data will then be known and then can be evaluated.  If the speed is too fast, it can be mitigated.

SLC asked if everyone was comfortable with voting tonight, with the knowledge that three or more members were in favor of adding a condition which contained more stringent traffic modification measures than BETA recommended to address this summer’s figures should they be in excess of previously reported data.  She said that she personally felt that it wasn’t a good idea to continue further without making a decision as already the Board has gone beyond the 100 days whereby a decision is required to be made.  The proponents have already agreed to an extension, but SLC feels that the Board has enough information to make a decision.

RFjr said that his comfort was based on Mr. Ho’s statement in which he said that he could foresee no result from the study that would cause him to recommend against the project. RFjr added that he has at written approximately 32 conditions and said that the Board would take into account every proposed condition brought up by opponents, experts and Board members, which would amount to a significant process.    

RF and RFjr stated that all of the representation made by the proponents was binding even if not included in the decision.  The Board agreed and Attorney Arienti responded by saying that he did not think that there were any statements made on their behalf that they would not be willing to abide by.   

Members voted in favor of granting the Special Permit 4-1.  RFjr said that there should be conditions as discussed and stated that anyone who purchased the property would have to come back before the Board. He is also in favor of placing a time limitation on the permit as well.  RF cast the dissenting vote.   

SLC advised everyone that the Board would be discussing conditions at a meeting June 10, 2015, 7:00 PM in the auditorium and asked that anyone who has any additional conditions for the Board to consider, to submit so that the Board has them in hand by May 21st.

Respectfully submitted,
Peggy Ammendola