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Zoning Board of Appeals Minutes, 06/10/2015

Zoning Board of Appeals
Minutes
June 10, 2015
Auditorium

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

Staff present: Land Use Director/Town Planner Gwen Miller (GM) and Land Use Clerk Peggy Ammendola, (PA)

Also present for a portion of the meeting was Town Manager Chris Ketchen.

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, and May 6, 2015. The April 9th continuation was due to the illness of a Board member.

Representing the applicants were the following:
Attorneys Nick Arienti  and Catherine Chester 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 Travaasa Experiential Resorts; Les Freeman of Elm Court

Note: The Board voted in favor to grant the Special Permit by a vote of 4-1 at the May 6th hearing.  The purpose of this meeting was to discuss and vote on proposed conditions that have been circulated between the staff (with counseling from Town Counsel), Petitioner, ZBA and members of the public who have an interest.

SLC started the meeting by explaining that RFjr would be composing the conditions via computer as each one is agreed upon.  This procedure is not the norm for the ZBA, but it was done to make it very clear exactly what was being voted on because of the specificity of the recommendations.

AH stated that in many cases the subject matter of suggested conditions is repeated over and over again.  He felt that it would be simple to take a category and address all of the concerns that exist in that category.  It was established that the staff recommendations would be the basis of structure. Each one would be addressed and combined with related suggested conditions from other sources for purposes of discussion before voting.  To be approved the vote would be a majority, i.e. three votes in favor.   RF suggested the Board also adopt all of the conditions imposed by the Town of Stockbridge.

Following the Board’s discussion on how they should proceed with the compilation of the conditions and what consideration should be given to the conditions imposed by the Town of Stockbridge, RF made the
motion that the Board adopt by reference the conditions established by the Town of Stockbridge as part of our decision except as we modify as we go along tonight. AH seconded the motion.

In discussion it was brought up that by adopting the Town of Stockbridge conditions Lenox has the ability to enforce them if Stockbridge does not and Lenox has the right to make their conditions more stringent than Stockbridge.

Condition: The conditions established by the Town of Stockbridge are incorporated by reference except as this board may modify them.

The Board voted to approve 5-0.

An audience member questioned why a letter dated today, June 10th, from the proponents’ attorney was given consideration when an earlier date had been given as a deadline for suggested conditions.  SLC explained that this letter came as a response to the Board’s suggestion.

(In the following, the only items denoted as numbers 1, 2, 4, 6, 7 and 13 were responded to by Hellman Shearn and Arienti in the June 10th letter.)

A. Traffic Flow and Safety (Section 9.4.2.2)

  • Staff Recommendation: The applicant shall complete the recommended data collection regarding vehicle speed and classification in peak season conditions this summer.
Hellman Shearn and Arienti June 10, 2015 response to the Staff Recommendation-
Add the following scope:  The applicant will conduct a special ATR (Automatic Traffic Recorder) traffic count at four locations during the 2015 summer season in order to provide additional base-line confirmation of the current (before site construction) traffic conditions.  These counts will be conducted at two locations on Old Stockbridge Rd. (just north of the site driveway and just south of Frothingham Crossing Rd.), one location on Frothingham Crossing Rd., and a location on the main site driveway to 310 Old Stockbridge Rd.

AH felt that the language could be easily combined, but he would like to see a reference to the BETA letters dated 3/17/2015 and that the applicant should bear the cost of all said tests.

AH proposed as the first special condition: The applicant shall complete the recommended data collection regarding vehicle speed and classification during the peak season condition during the summer of 2015 at the applicant’s expense. The applicant will conduct a special ATR (Automatic Traffic Recorder) traffic count at four locations in order to provide additional base-line confirmation of the current (before site construction) traffic conditions. These counts will be conducted at two locations on Old Stockbridge Rd. (just north of the site driveway and just south of Frothingham Crossing Rd.), one location on Frothingham Crossing Rd., and location on the main site driveway to 310 OSR.  

RF seconded the motion.  There was discussion and agreement that RFjr will produce a word document that would reflect the Board’s agreed upon conditions, combine with the Staff recommendations, add the reference to the BETA letter and also add “2015”.  Additionally, at each line item, the Board would discuss and suggested edits, modifications etc. could be made.  At the conclusion of review of A. Traffic Flow and Safety (Section 9.4.2.2), the Board would then vote.   

2)  Staff Recommendation: The applicant shall be required to conduct a post-occupancy traffic analysis within two years   of project completion. The applicant shall bear the cost of the post-occupancy traffic analysis. If the Town of Lenox requests a peer review of said analysis, the applicant shall bear that cost.

Hellman Shearn and Arienti June 10, 2015 response to the Staff Recommendation-
Add the following scope: In accordance with the Town’s traffic consultant (BETA memo of March 17, 2015) the applicant anticipates the following monitoring study during the summer season within two years of completion of the Elm Court new construction:
  • Same automatic traffic recorder (ATR) traffic count locations as described in 1) above, except at a time 12 months (or longer) after completion of the Elm Court project at a time of full occupancy of the site, during the peak operating season in the summer.  
  • Conduct turning movement counts of traffic at the intersection of Old Stockbridge Road/West Street/Walker Street during a weekday afternoon period (3:30-5:30 PM) and a Saturday mid-day period (11:00 AM-1:30 PM).
  • Conduct the ATR counts on for a 4-day period (Thurs. thru Sunday) at the locations as described in 1) above.  
It was agreed that the both could be merged, and that completion would be defined as “Two years from completion or opening, whichever comes first.”  
RFjr seconded.

3)  Staff Recommendation: Signage indicating the commercial vehicle exclusion described in   Schedule VI “Commercial Vehicle Traffic” of the Lenox Bylaw shall be posted at the Paterson-Egelston Monument or just south of the Paterson-Egelston Monument. A sign currently is in place at Bean Hill Road. (This item became known as 3a.)

Since there is too much signage at the monument it was suggested the sign be placed just south of the monument.  Applicant shall make good faith effort to comply.  PB suggested better signage to warn of commercial vehicle exclusion. RFjr seconded.
  
3b)  It was felt that 3b should be established to address the Carol Grossman/Attorney Glover suggestion that signage should also be placed at the driveway at the main entrance to Elm Court.   Reference was made to item #20, (which is the same as #7 of Traffic Flow and Safety) and #17 of a May 28th document.

20) (From document entitled Conditions Received as of May 28, 2015)-The applicant should be required to conduct a post-occupancy traffic analysis at its own cost to determine the traffic impact of the report. Said traffic analysis shall include data, not only for a typical study, but specifically for large events on the premises on at least one weekend, during a special event on the premises and a performance at Tanglewood. If said traffic study differs from the Applicant’s traffic study performed by Fuss & O’Neill and relied upon by this Board in approving this special permit, the applicant shall apply for a modification of the special permit to address said deviation.

17) (From document entitled Conditions Received as of May 28, 2015)-The current commercial vehicle exclusion for of the Town of Lenox should be posted on the Elm Court property at the driveways, and the Applicant should be responsible as a condition of any permit for enforcing that exclusion with regard to its vendors, contractors, and other service providers.

SLC felt that this was connected to the driveway use, therefore suggested that this be tabled until a distinction could be made as to who will be using which of Elm Court’s driveways.  Attorney Arienti stated that they could not enforce where commercial traffic goes when they leave Elm Court.  RFjr responded that was true, but that it was within the purview of the ZBA to require the applicant to instruct commercial vehicles that their access to the property is restricted.  SLC suggested that 3b be tabled until the next meeting.  All agreed.

4)  Staff Recommendation: The applicant shall be responsible for the installation of three pole mounted radar signs along Old Stockbridge Road to mitigate any potential increase to traffic volume and speed prior to construction and occupancy.

Hellman Shearn and Arienti June 10, 2015 response to the Staff Recommendation-Note that the BETA recommendation is for two (2) electronic speed check signs to be installed prior to completion of the project, not 3, therefore the Petitioner suggests conforming this suggested condition to the BETA recommendation.  

RFjr feels that more is better, so he approves of 3 speed check signs.  GM said that Mr. Ho had, later in the conversation of the decision meeting, leaned toward three.  AH suggested that 2 or 3 be installed in locations as determined by BETA Fuss and O’Neill, Lenox Police Chief and the Lenox DPW.  

GM asked SLC since the hearing was still open if there would be time for the public to continue to make comments.  SLC said that technically the public comment period was closed.  There was ample time for people to make comments.  The vote has been taken and now the Board needs to have time to deliberate.  A discussion regarding conditions is different from a discussion on an application. The Board may engage the public for clarity while discussing conditions, but after the granting of a petition; generally discussion is among the board in a public setting.  A member of the public asked why Attorney Arienti was permitted to submit conditions if the public could no longer do so.  It was explained that this was not public comment and that Attorney Arienti’s letter was in response to very specific items.

5)  Staff Recommendation: The application shall require as a term of employment that all staff must access Elm Court via Frothingham Crossing from Route 7 and 7A during construction and during operation. This shall include service and goods deliveries.

It was generally felt that would not be acceptable or appropriate to stipulate Frothingham Crossing.   SLC said that if Frothingham Crossing was to be considered for this application, it should have been part of a notice.  She added that if during the course of review traffic was an issue and Frothingham Crossing was to be considered a viable alternative, there should be another hearing so that the residents of that road could be sufficiently noticed.  AH added that he does feel that all employees, deliveries etc. should be directed to come in to Elm Court from the south from Route 7 and 7A.  RFjr suggested amending by deleting “via Frothingham Crossing”.  The revised Staff Recommendation for #5 would read:  The applicant shall require as a term of employment that all staff must access Elm Court from the south during construction and during operation. This shall include all service vendors’ contractors and construction workers as part of their contractual obligations to the applicant.  

6) Staff Recommendation-The petitioner shall provide an escrow fund to pay for traffic calming devices at Frothingham Crossing, Old Stockbridge Road and the intersection of Old Stockbridge Road and Main Street if deemed necessary according to the traffic engineer analysis required by recommendations #2) and #7). Should the Town of Lenox implement additional traffic calming measures, including but not limited to periodic speed monitoring by the Lenox Police Department, periodic use of the two existing Lenox radar trailers, installation of additional speed limit signs at locations recommended by BETA, Inc. or the installation of “Share the Road” signs along Old Stockbridge Road, the applicant shall bear the cost as deemed applicable by the Lenox Board of Selectmen.

Hellman Shearn and Arienti June 10, 2015 response to the Staff Recommendation-Note that the BETA recommendation dated March 17, 2015, is for an escrow account in the amount of $68,000.00 to deal with traffic calming/mitigation measures, therefore the Petitioner suggest conforming this suggested condition to the BETA recommendation.  

AH believes there should be a specific amount $68,000.00 and if there is need for something more, the Town of Lenox would have to bear the cost.  He doesn’t see how one could escrow an open ended fund therefore that should be removed. RF believes that if additional funds are necessary to mitigate safety/traffic measures necessary as a result of Elm Court, then the cost should be the responsibility of the applicant.  RFjr said that he is not willing to put a cap on it, because Lenox is getting only a limited benefit.  Mr. Hawthorne responded that not having a limit is like having an open check book and suggested that there be a limit of $100,000.00.  RF said that if Mr. Hawthorne did not like the condition, “You don’t do the project.”  Mr. Hawthorne responded that he wanted to properly define Travaasa’s investment and to be fair is his goal.  SLC said that it was not likely that anything would cost this much and trusts the BOS will not do anything to hurt a prosperous enterprise. This is limited to the traffic, nothing more.

AH made a motion to create two paragraphs from motion #6 to be identified by 6a and 6b.   

 
6a) The petitioner shall provide an escrow fund of $68,000.00 to pay for traffic calming devices at Frothingham Crossing, Old Stockbridge Road and the intersection of Old Stockbridge Road and Main Street if deemed necessary according to the traffic engineer analysis required by recommendations #2) and #7).

6b) The Board agreed that this paragraph would be reserved to address the future later in the discussions.

7) Staff Recommendation-The applicant should be required to conduct a post-occupancy traffic analysis at its own cost to determine the traffic impact of the project. (It was agreed to change the last word in the sentence from report to project.)   Said traffic analysis shall include data, not only for a typical study, but specifically for large events on the premises on at least one weekend, during a special event on the premises and a performance at Tanglewood. If said traffic study differs from the Applicant’s traffic study performed by Fuss & O’Neill and relied upon by this Board in approving this special permit, the applicant shall apply for a modification of the special permit to address said deviation.

Hellman Shearn and Arienti June 10, 2015 response to the Staff Recommendation-The ATR special counts and intersection count at OSR/West St. /Main St./Walker St. indicated in sub-paragraph 2) are part of the post-occupancy traffic analysis.  These will include a Tanglewood performance event.  Petitioner can also include an intersection traffic count and ATR counts on Hawthorne St. for a special event at Elm Court if desired by the ZBA.  

The last sentence of this paragraph is ambiguous.  The referenced sentence states in pertinent part that “If said traffic study differs from Applicant’s traffic study…the applicant shall apply for a modification of the special permit to address said deviation". This statement fails to articulate any standard for determining what differences between the Petitioner’s Traffic Study and any subsequent traffic study, and by what degree or amount, would trigger a “violation” requiring modification of the special permit, and is therefore ambiguous and unenforceable.  It is the Petitioner’s understanding that the measures provided by the Town’s Traffic Engineer, BETA Group, in their collective correspondence dated March 17, 2015, addressed the potential for a “deviation” from the data collected in the traffic Study, and thus provided the method for addressing such deviation which would not contemplate or require modification of the special permit.  The suggested recommendation could compromise the effect of the then existing special permit and would limit the Petitioner’s right to maintain the viability of their business for the long term.  Therefore the Petitioner suggests conforming this suggested condition to the BETA recommendations contained in the referenced March 17, 2015 correspondence.  


AH said that he had a problem with the word “differs”, pointing out that a traffic count which results in just one additional car, would “differ”.  Information provided by the traffic engineers has shown that this project is unique, therefore there are no standards.  The purpose of the additional traffic studies is to have comparisons.  


Mr. Dietrich responded and referred to the BETA letter dated March 17, 2015, Elm Court Estate Special
Permit Review-Escrow Fund Estimate, first paragraph:
The construction and design cost will be used for future implementation of traffic calming devices in the event that the traffic monitoring study revealed significant traffic impact (traffic volume increase of 10% or more, speed (85th percentile) increase of 10mph or more over the posted speed limit) to the study area roadway/intersection.

He added that BETA did add a quantifiable measure which is why they would like to incorporate this into the condition.  

Attorney Arienti said that his point was to clarify that the BETA memo of the 17th as well as some of the responses in the other memo of the 17th were intended to plan for mitigating those instances where the deviation was above and even in the cases substantial relative to what they had projected and what BETA confirmed.  He felt that to create another standard or another method of review by another application seemed to be extremely confusing.

SLC and RF said that they were comfortable with this.    

Again for clarification, Attorney Arienti asked if the Board was editing out this portion and putting in another location as to the modification portion.  SLC and both said that there would be no reference to modification here. SLC added that she would recommend that the Board provide in their decision a review in 2 or 3 years and said that the better reference to “modification” would be that the Board’s final determination would “subject to review” within a couple of years.    She said that she was not suggesting that the applicant would have to return for a new special permit or for a new modification.  In this and other conditions it should be understood to be within the context of a review.  The purpose of the review is to see if there are any problems then modify if necessary, not with the idea of revoking the special permit.  Anything that suggests modification should be referred to the review period.  Reviews of decisions have been done in the past.  RF said that the Board should have the ability to modify conditions of a Special Permit based on post occupancy findings at a hearing.  

Mr. Hawthorne expressed concern as to how this may be interpreted in the future.  CS used examples of reasons for review.  One being if plantings were required as a condition of a special permit and after a specified amount of time there wasn’t compliance or if lighting became an issue with neighbors, a review would be to meet and discuss remedies, not to eliminate a permit.  SLC added that the Board recognizes the huge investment but they have to take into considerations the town’s people and the standards for a special permit.  She said that the special permit is safe, it will expire and it will not be taken away, but within the context of that, they would have to have a review or two.   Mr. Hawthorne acknowledged that that was fair, but asked that if possible the Board be as specific as possible.  

RF wanted it understood that this doesn’t mean that there may not be a condition about a transfer of a special permit without the ZBA’s approval.  He said that he would be recommending that if the applicant decides to sell the project within a certain amount of time, either Travaasa or the successor entity would have to return to the Board to request a special permit.

The Board approved “whatever it says in the escrow memo of March 17th” with regards to #7.

        8) The Applicant has proposed to connect the resort to downtown Lenox with a sidewalk at the    desire of the Board of Selectmen. If the ZBA determines that a sidewalk mitigates the traffic   impact and improves pedestrian safety they should recommend this to the Board of Selectmen.  

It was noted that many members of the public would like a sidewalk whereas a few do not.  Both the Chief of Police and Fire Chief support having a sidewalk.  Some members of the public wish to be involved in the decision process as to the location.  RF suggested the Board approve the construction of a sidewalk as proposed between Elm Court and the Hawthorne Street intersection as approved by the DPW after public comments and in conjunction with the BOS suggestions, pursuant to DPW specifications.  SLC suggested there be a sidewalk that connects downtown Lenox with Elm Court at the expense of the applicant and with supervision or participation of public authorities including the DPW and BOS.  There should be a performance bond to make sure that the sidewalk is completed.  CS suggested waiting a few years to see if there is a need.  Attorney Arienti said that the original intent was that the Stockbridge Board of Selectmen would notice the issue, take public comments and that if Lenox felt that this was desirable based on public comment, the applicant would pay for the sidewalk.  Stockbridge had a condition which read:  In the event the Town of Lenox shall permit construction of a sidewalk in the Lenox right of way of Old Stockbridge Road, the applicant shall construct a sidewalk not later than two years following the receipt of approval of such construction.  The Selectmen would be involved with this.

AH suggested the following as conditions to the special permit:

  • The applicant shall alter shift times and delivery times to minimize traffic congestion during peak hours of 7 AM to 9 AM and 3 PM to 6 PM.
  • There should be no on street parking permitted during events at Elm Court.    
At this point the Board took a brief break and resumed to address items numbered 9, 10, 11, and 12.

E. Infrastructure and other Public Utilities (Section 9.4.2.3) All of these are Staff Recommendations. (Attorney Arienti’s letter of June 10, 2015, Response to Proposed Conditions, did not include responses to the following section.)

        9) The petitioner shall not commence to “open” or operate the proposed project unless and until     its compliance with the work cited in the Weston & Sampson memoranda dated September 4,         2014 and November 18, 2014 regarding upgrades and additions to the public water distribution    and sewage systems have been completed at cost to the applicant.

        10) The site’s wastewater pumping station shall be provided with flow meter, wastewater grinder       unit, and odor control system that meet the approval of the Town. The facility’s flow meter shall     continuously record discharged wastewater flows and shall transmit flow data to the Town        quarterly, unless another mutually accepted schedule is determined.
        11) The developer shall reimburse the Town for reconstruction of any public roadways disturbed  or otherwise modified as a result of the site improvements at Elm Court. Design, public bidding,        construction and inspection of the improved roadway shall be administered by the Town or the    Town’s designated authorities. Proposed reconstruction shall be configured to include wedge   joints and safety edge, and all paving shall be conducted utilizing Superpave. Design shall meet        all applicable Town, State, and Federal regulations, details, and specifications. Design shall  include replacement and enhancement of the storm drainage system along all reconstructed        portions. Sizing of storm drainage components shall be based upon a drainage study conducted by         the developer, reviewed and approved by the Town. Construction documents shall be subject to    Town review and approval prior to public bidding. Bidding and construction of the upgrades shall        be administered by the Town, and shall be reimbursed by the developer.

        12) Any and all easements (both temporary and permanent) required to implement utility,         roadway, and sidewalk improvements shall be fully described and depicted on documents   (stamped plans and legal descriptions) prepared by the developer and submitted to the Town for  negotiation and acquisition. All expenses incurred by the Town in acquiring the easements,      including but not limited to legal fees, acquisition costs, and other general expenses, shall be fully  reimbursed to the Town by the developer.

The above will be added verbatim to the proposed conditions and are essentially the same as items numbered 73 thru 76.  Numbers 77 and 78 are dealt with in item #9.  Two letters from Weston and Sampson were referred to: November 18, 2014 deals with sewer and water upgrades and Sept 4, 2014 addresses sewer.  

SLC, reviewing some conditions suggested by the public which related to items #s 9-12, said that a request that permission to be granted to residents on Stone Hill to hookup to town and sewer at the expense of Front Yard is not a part of this application.  Also the Board did not feel that they have the authority to condition the special permit as suggested here by Joe Jackson:
        
        86) The applicants must pay 2% of the cost of rebuilding the wastewater pump at Brunell Ave     pumping station, equaling $50,000 +/- (This is their estimated increase in flow to the pump). The       Town of Lenox will not make a gift of the use of a newly rebuilt pump at a cost to the taxpayers        of $2.5M.
        87) The applicants must pay an annual surcharge of 25% on water and sewer fees.
        88) The applicants must pay an annual entrance fee to the Town of Lenox of $250,000 per year or         25% of their annual real estate and hotel tax payments to the Town of Stockbridge, whichever is         less.

The Board members discussed the proposed conditions from Mr. Jackson.

Mr. White stated that the Brunell Pumping Station is near completion, and that the improvements to the sewer line would in effect help pay for the recent improvements, as would the user fees Front Yard would pay once connected to municipal water and sewer.  

SLC stated that the Board would return to further discuss and in the meantime contemplate the proposals and work with GM to come up with an organized list of everything the Board will be voting on. Other items to be discussed include, but not limited to, noise, performance bond, events, snowmobiles, ATVs, hunting and review.  The sidewalk issue will be directed to the Board of Selectmen to make a decision after more public consideration.  

Mr. Hawthorne said that it possible, he would like to have the copy of the document prior to the next meeting.  SLC agreed.

Attorney Arienti said that there is an existing letter pursuant to the waiver granted which extends the period past 90 days from the date the public hearing is closed to make a decision.  He described it as open ended and feels there should be a cap on it.  SLC responded that the Board appreciated the extension and the fact that it had been open ended.  This will be discussed at the next meeting.

CS made a motion to continue to June 17th at 7:30 pm.  RFjr seconded the motion and the Board voted to agree 5-0.

Respectfully submitted,
Peggy Ammendola