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Zoning Board of Appeals Minutes, 06/17/2015

Zoning Board of Appeals
Minutes
June 17, 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 was Town Manager Chris Ketchen.

Final PCS, LLC,203 Main Street (Map 46, Parcel 19), commonly known as the Cornell Inn, Variance, Section 4.1.1, to permit new steps and railings to encroach into front yard setback.  

Presenting the application was Tim McCaffery who stated that originally the stairs were in the front, but access is gained at the side of the Inn, from the parking lot.  The purpose for wanting to put the stairs at the front is because it is architecturally appropriate and it will provide a straight shot for egress.  The stairs will be about 2.5 feet into the setback.  

Building Inspector Don Fitzgerald was present and he agreed with Mr. McCaffery’s proposal.

One letter was received, and it was from Nancy Goldberg of Belvoir Terrace.  Ms. Goldberg supports the variance.  

It was determined that a site visit was not necessary.
 
RFjr made a motion to close the public hearing and RF seconded the motion.  The Board voted to agree 5-0.  RF made a motion to approve the Variance as requested and CS seconded the motion.  The Board voted to approve 5-0.  
 
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 Travassa Experiential Resorts; Les Freeman of Elm Court; Ellen Lahr   (Look at sign in sheet for number for others.)

Note: The Board voted in favor to grant the Special Permit by a vote of 4-1 at the May 6th hearing.  On June 10th the Board held a meeting 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. That meeting was continued to tonight.  The following sections were covered at the June 10th meeting:
A. Traffic Flow and Safety (Section 9.4.2.2), #s 1-8
E. Infrastructure and other Public Utilities (Section 9.4.2.3) #s 9-12

Tonight the Board followed a new list prepared following the June 10th meeting in which the language was changed as a result of the merging of proposed conditions and consensus of the Board.  Subsequently the numbering on the new list, referred to as CONDITIONS DETERMINED AS OF JUNE 10, 2015 differed slightly and items numbered 13, 14, 15 and 16 have been added.  RFjr said that these new numbers came from his notes.  They are:

14. Special permit compliance review in two or three years. (A similar condition is included in the Cranwell resort special permit, the Stonover special permit, and the Shakespeare and Company special permit.)  
15. Special permit personal to Front Yard, LLC.
16. Incorporating the water and sewer fees recommended by Weston and Sampson per a November 25, 2014 memorandum.  
17. The board also discussed contemplating a performance bond at the next meeting.  (This was assigned a number (17) at tonight’s meeting.
These items were discussed briefly and it was decided to table #s 14 and 15.  It was agreed that #16 would be excluded and would be deferred to the BOS as they are the ones who set the rates and fees for water and sewer.  

The Board resumed their discussion on conditions tonight starting with:
C. Neighborhood Character
18) The Zoning Board of Appeals can consider an annual cap to outdoor events at Elm Court if they feel that such action would mitigate impacts to the neighborhood character. If the Zoning Board of Appeals does place a yearly cap on the number of outdoor events to be held at Elm Court, it could consider requiring special approval from the Board of Selectmen should the applicant exceed the yearly maximum permitted.

This was discussed and questions were raised as to if an outdoor event should be defined, should there be a limit on the number of participants, and should there be a cap on the number of events.  It was decided to skip this item and discuss this later.

19) The applicant shall be required to install additional screening along the wall along Old Stockbridge Road and along the northern side of the driveway to mitigate the blowing of snow onto the road and further protect adjacent neighbors from the routine noise of the resort operation.  

As this was discussed, AH, CS and SLC said they did not see a need for screening along Old Stockbridge Rd.  It was felt that the wall itself provided a snow break. Additional plantings on the north side might be helpful for noise or light pollution.  SLC said that although the mansion is not among the Lenox Great Estates, our zoning bylaw discourages blocking of the view shed of a Great Estate.  RFjr said that recent clearing has made the mansion visible and that neighbors have said that the clearing has removed what had blocked blowing snow.  He suggested a snow fence during the winter months.  

Mr. Hawthorne said that most likely outdoor events would be held behind the house and he said that there has been a history of 8 years of outdoor events involving from 115 to 400 people.  Tents have been used and could be seen from Old Stockbridge Road, but they were not on the 3 acres that are in Lenox.

Even though there are no plans to have events held on the three acres of property that are within the Town of Lenox, the Board feels that they need to revisit the cap on number of events.  It was suggested that this be a part of item #18.

Discussion ensued regarding noise and that this should be included in the review and measured from the road at 60 decibels.  

GM said that Shakespeare and Company had been reviewed for noise several years ago.  She will research and provide the Board with information.  

Attorney Arienti referred to the noise ordinance which exists in Stockbridge and suggested that Lenox follow it to be consistent.  The section of the Stockbridge Zoning Bylaw is as follows:

6.22 Noise
Within the Town of Stockbridge, no land use shall produce a day time (7:00 a.m. - 7:00 p.m.) average sound level greater than 65 decibels, as measured over an eight (8) hour period or a night time (7:00 p.m. - 7:00 a.m.) average sound level greater than 50 decibels, as measured over an eight (8) hour period when measured at the property line.

It was suggested that noise be included in the review after the project is in operation.
Reference was made to:
Great Barrington’s Town Code, §115-2 Excessive Noise Prohibited
A.
Any noise from any source between the hours of 8:00 p.m. and 8:00 a.m. that continues steadily or intermittently for a period of 15 minutes or more at a level in excess of 20 decibels above average background noise for the time and place is hereby prohibited except agricultural activity or by permit as provided in § 115-3A.  Said noise shall be measured by a Type 2 sound-level meter, set at fast meter response, at a distance of at least 50 feet from the source.  

B.
Any noise from any source measured at a level higher than 86 decibels by a Type 2 sound level meter, set at fast meter response, at a distance of 50 feet from the source, is prohibited at any time except by permit as provided in §115-3A or as excepted in §115-4.

C.
The use of any device which makes a sound, whether audible or inaudible, with the intent to cause pain, suffering, or irritation to any other person, or that actually causes pain or suffering to any person, is prohibited at any time except when used by law enforcement personnel who are acting in an official capacity.  This includes, but is not limited to, ultrasonic devices that are used to disperse gatherings of persons.  (Added 5-14-2007 ATM, Art.14)

AH brought up the need for snow blowing, lawn mowing, leaf blowing and though it is noise it is a part of maintenance.  Attorney Glover suggested that this could be phrased “with the exception of routine property management”.  GM pointed out that condition #22 takes care of that and the consensus was approval of #22.  

22) Outdoor activities performed at the property shall be limited to those activities that generate natural sound, further defined as those activities that do not produce sound generated by a combustion or electrical motor or engine with the exception of activities required for the maintenance of the property and grounds. There shall be no outside broadcasting of amplified sound, including from under tents or other temporary structures. Furthermore, there shall be no outdoor music of any kind, fireworks, or other similar outdoor noise after 10:00 p.m. Fireworks shall be permitted only by approval of the Lenox Fire Chief.

It was agreed to add to the last sentence of #22 that notice that fireworks will be going off will be given to abutters by the applicant.  

The Board agreed to adopt Great Barrington’s Great Barrington’s Town Code, §115-2 as “we have agreed to modify it”. Also, the sound would be measured from a boundary line. Any noise measured at a level of 60 decibels at the boundary line, steadily or intermittently for periods of 15 minutes or more would be prohibited.  

The Board returned to # 19 and did an informal poll regarding screening at the wall at Old Stockbridge Rd. AH, CS and SLC stated that they were not in favor of screening at the wall.   RFjr said that he felt that a snow fence should be installed at the wall during the winter months to prevent blowing snow from the property on to the road.  RF asked about screening on the northern side of the driveway.  Mr. White said that this and other screening is in the plan and provided a site plan showing the placement.  

Added to #19 was that the petitioner shall take reasonable steps to mitigate the blowing of snow onto the road.   

20) Employees of Elm Court, both during construction and operation, shall be requested to smoke in an area unobtrusive to abutting neighbors. Mr. Hawthorne said that Elm Court has a non-smoking policy for employees and guests.  

It was agreed that #20 read: “No smoking in any area obtrusive to abutting neighbors.”  

21) The applicant shall require delivery trucks and construction drivers to access Elm Court no earlier than 7 a.m.

This was amended to read….”no earlier than 7:00 AM and no later than 4:00 PM”.

23) With respect to outdoor lighting, consistent with its obligations under the Stockbridge Special Permit paragraph K and Section 5.3. “Lighting” of the Lenox Zoning Bylaw, the applicant shall ensure that the edge of the lamp shield is below the light source; direct radiation from the light source is confined within the boundaries of the Property; direct radiation is prevented from escaping toward the sky; and no high intensity discharge lighting is used. Such lighting shall not cast any illumination of the applicant’s premises.
The last sentence was removed and replaced with: No spotlighting of premises except as may be required for public safety.  
24) No construction work shall be performed on weekends, State or Federal holidays. No construction work or deliveries to the site shall take place prior to 7:00 am or after 5:00 pm.
It was agreed to change the time from “or after 5:00 pm” to “or after 4:00 pm”.
25) The applicant shall share the construction schedule with the Town of Lenox for review and approval prior to commencement of work. Any deviation from this schedule shall be shared with the Town of Lenox.

It was agreed to remove “and approval” in the first sentence of #25 and amend the second sentence to read: Any deviation from this schedule shall be shared with the Town of Lenox code enforcement officer.

26) The applicant shall share their dust control plans for the construction period with and receive approval from the Lenox Building Commissioner. They shall notify the Building Commissioner of any deviations from these plans.
It was agreed to remove “and receive approval from”.  Also it was agreed to replace “Lenox Building Commissioner” with “Town of Lenox code enforcement officer” in both sentences.  
The Board refocused on item #18.  
C. Neighborhood Character
18) The Zoning Board of Appeals can consider an annual cap to outdoor events at Elm Court if they feel that such action would mitigate impacts to the neighborhood character. If the Zoning Board of Appeals does place a yearly cap on the number of outdoor events to be held at Elm Court, it could consider requiring special approval from the Board of Selectmen should the applicant exceed the yearly maximum.

It was decided to limit the discussion to outdoor events first followed by indoor.  GM said that noise would be controlled due to the prohibition of amplification of sound.  

No outdoor activities will be allowed on the 3 acres in Lenox.  There are already established numbers permitted for occupancy related to the size of the facility (Mr. Hawthorne said that he would check on the actual number allowed.)  SLC felt that since this limitation is already established, there would be no need to place a cap on indoor events.  RFjr said that since traffic is a concern, he does feel that there should be a cap on indoor events.  CS and AH felt comfortable with being less restrictive and seeing how things play out after Elm Court is in operation.  

Attorney Glover who stated she only represents Carol Grossman, asked the Board to consider that whatever the limit the Board places in a condition, it is the only thing that would be enforceable until the permit is changed.  She suggested the Board take a conservative approach and then the applicant can return to the ZBA to modify after a successful completion of a year.  SLC responded that the Board is already dealing with the issues of noise and if more traffic is created it will be measured in the traffic study; it will come up in a review and could result in the change of a permit.  RFjr added that traffic measuring is not being done in the evening hours of 7-10 when events could take place.  

RF asked Mr. Hawthorne for the number of persons allowed with the Certificate of Occupancy.  Mr. Hawthorne responded that in the existing mansion the limit is 628.  Mr. Hawthorne added that for eight years, Bob Berle, the previous owner, held large events usually every weekend and almost all were outdoors in which the numbers of participants ranged from 160 to 400.  He said that there were no conditions that were placed on Mr. Berle’s project and these events resulted in no complaints.  RF argued that Berle was a different entity and didn’t advertise like the proponents will and RFjr argued that under the ownership of Mr. Berle Elm Court was not a fully functional hotel and spa.  Mr. Hawthorne responded by saying the proposed project would be a safer environment.  The previous use could accommodate 30 overnight guests, so only a small portion of the participants at events could stay, meaning that more people were entering and exiting the property in any given day of an event.  Parking was not designated, so cars were scattered about and on the lawns. This proposal will provide rooms for the guests, and the parking for a total of 160 cars will be screened.  He concluded that the events in the past eight years were noisier and much more invasive than what they will be post completion therefore he doesn’t understand why there should be a limit on outdoor or indoor events.  

SLC responded that there will be review and if it is determined that the cap is not strict enough then the Board can further limit the number.   Three of the three members, AH, CS and SLC, felt comfortable with three outdoor events per week primarily outdoor all year.

GM said that she has reviewed ZBA decisions for properties that are similar to Elm Court, among them Canyon Ranch, Cranwell, Kemble Inn, Blantyre, Seven Hills and Stonover and the only one with an event cap is Stonover.  In the beginning Stonover was limited to seven events, but in time that has increased to twelve a year.   RF argued that the area around Elm Court is single family homes.

There was discussion as to whether one group who arranged to have an event which took up part of three consecutive days was considered one event or three events.  CS, AH, and RF were in agreement that events that are primarily outdoors, events being defined not as “by day” but by event, should be limited to  3 per week throughout the year.  

Indoor events were discussed.  RFjr asked what the capacity was for the ball room or dining room where an indoor event would be held.  Mr. Hawthorne responded that they do not know that yet, but that it was difficult to define an indoor event as this is what a resort does every day.  CS, AH and SLC do not believe that there should be a condition to limit the number of events that are indoors.  AH added that setting a limit is creating a model for failure.

RF asked about what restrictions were placed on parking.  RFjr responded that parking was allowed only in designated areas and that this was addressed in #9.  Item #9 was revisited and it was agreed to amend to read: No on-street parking shall be permitted in front of the applicant’s premises, i.e., the Elm Court Estate, or on driveway or lawns at any time.  Parking permitted in designated areas only.    

RF asked Mr. Hawthorne how Elm Court would accommodate parking for 400-500 people.  Mr. Hawthorne responded that shuttles would be available.  RF felt that the Board should restrict guests from parking in downtown Lenox in the summer and leaving their car for a weekend and accessing Elm Court by shuttle.  Town Manager Ketchen advised RF that parking for multiple days in a public parking lot is
prohibited and that if this was abused, vehicles could be towed.  RF proposed that any remote parking has to be in other than Lenox public parking.  AH does not see how that could be enforced or how to identify a car that belonged to a guest of Elm Court.  RF disagreed.  RFjr suggested a restriction on shuttle buses going to public parking lots or requiring that they go to private rental parking.  Mr. Ketchen disagreed that a condition should be placed on an applicant to enforce the behavior of their guests. He said that it was his job and the job of the Chief of Police to see to it that parking limits were not being violated.  The Board did not support the suggestion of GM to request that the applicant set up a designated area on site for overflow parking.  They felt this could not be done as it was not a part of the application.  It was also agreed to not have as a condition that any remote parking has to be in other than Lenox public parking, but that if in a review it is determined that parking related to Elm Court is an issue, it could be addressed at that time.  Attorney Glover questioned the effectiveness of conditioning a permit.  SLC responded that what the Board has said, and this is supported by ample legal precedence, that the review will be to see if the conditions are working, if they are being violated or if more or less conditions are needed.  GM added that the Board can review, but not change a special permit as granted.  The point of review is to insure compliance.  SLC said that the Board has the power to reopen the hearing on their own motion if there are issues that need to be addressed.  The hearing would have to be noticed.  RF said that he would feel more comfortable if the applicant agreed to give the Board the ability to review certain things.  


26 a) There shall not be outdoor sports machinery such as snowmobiles, ATVs, dirt bikes and the like operating on the premises including firearms.  This prohibition was added and approved by all members of the Board.

Restriction of hotel guests-GM has researched and Town Counsel has been consulted and the consensus is that in the definition of resort in the Lenox Zoning Bylaw the restriction of public access is not intended.  She stated that resorts in Lenox do allow public access and in fact in their first special permit consideration Cranwell was required to continue to allow public access to the golf course.  The staff recommends against barring access to non-resort guests.  The Board agreed that the use of the resort will not restrict public access.

The following was from the Staff Recommendations emailed to the Board on June 4th:  
No Additional Changes to the Elm Court Site
The plans or specifications detailing work to be undertaken accompanying a special permit application become conditions of the issuance of the permit2. Deviation or modification of these plans or specifications will require the applicant to request a modification of their existing Stockbridge and forthcoming Lenox special permit or an additional special permit.   2 DiGiovanni v. Board of Appeals of Rockport; Chambers v. Building Inspector of Peabody 40 Mass. 762, 767 (1996); Franchi v. Zoning Board of Appeals of Worcester, Misc. Case No. 15677 (Land Court 1995)

All agreed to incorporating this in the decision.  

Alternate Entrance South of the Existing, Main Entrance-RFjr believed that employees, deliveries, etc. should be via the southern driveway.  GM pointed out that Kien Ho of BETA, the consultant who was hired by the Town of Lenox to review the project, has recommended against the use of this driveway due to sight lines and safety concerns.  AH believes that the small driveway was intended for use for the two houses and green house and is not suitable for commercial traffic.  It is narrow, at 10 to 12 feet wide.  To meet the minimum road requirements of Stockbridge, the driveway would have to be expanded to 18 feet wide and must be paved.  A large number of trees exist on the northern border of the drive and in order to make the road, they would have to be removed, which would violate the Scenic Mountain Act.  The applicant would have to return to the Stockbridge Conservation Commission for approval.  Between the southern and northern driveway, there are approximately 8 houses.  AH concluded that the Board has already requested that the traffic come from the south.  RF disagreed and said that he would like to see this entrance used for employees and deliveries.  SLC values the opinion of the traffic engineers.  This will not be included in the conditions.  
 
F. Potential economic and fiscal impact to the Town (Section 9.4.2.6)
22) In presentations to both the Lenox Planning Board and Lenox Zoning Board of Appeals, the applicant indicated they would be investing significant funds into the marketing of their Lenox resort. It is the expectation of the town that they will honor this commitment. It is also the hope of the town that the new business entity in Lenox will be active, supportive members of the Lenox business community by joining both the Lenox Chamber of Commerce, and the Lenox Merchants Group. SLC asked the applicant if he agreed to this, to which Mr. Hawthorne agreed.  The Board felt that while this commitment by the applicant is good, they felt that they do not have the authority to make this a condition.

At this point SLC asked the Board for their thoughts regarding what the review would entail.  

Mr. Ketchen noted that he had a discussion with both Attorney Glover and Attorney Arienti and that the three of them have an understanding that a review is an option; modifications of a special permit are not.  Once a special permit is issued with conditions, they are set. While Mr. Ketchen feels that a review would be appropriate and reasonable but not what he would recommend, he said that it is his understanding of Town Counsel and the understanding one of the concerned parties and the applicant, the Board cannot re-open at a later date to make modifications.  

SLC asked what would be done if the future traffic studies indicate worse conditions than previous. CS added that the Board has been following this procedure for years.  RF said that the Board had discussed adopting BETA’s recommendations that would be post construction.  Attorney Arienti explained that there are specific triggers and benchmark in the staff recommendations that if traffic volume increases by greater than 10 percent if the 85th percentile of speed data increases by greater than 10 mph those two clearly defined triggers authorizes the town to go into the escrow account that will have been established.  This becomes a matter of administration and not a reopening of a condition itself. Mr. Ketchen added that in the case of speed, there would be an obvious direct revenue offset and he would recommend that.  GM referred to the letter dated today, June 17th, from Attorney Arienti which reads as follows:

Mr. Ketchen, when asked by SLC if he thought that this was sufficient, Mr. Ketchen responded that it would be difficult for him to contemplate what the additional budget would be for traffic calming measures, but if speeding is an issue he would direct the Chief of Police to increase monitoring of the Old Stockbridge Road.  He would expect the officers to pull over speeders and issue tickets which would generate revenue to offset the costs to the Town.  If the officers are not pulling over speeders and issuing tickets to offset the revenue then it is because there are not enough speeders on the road.  Mr. Ketchen added that he is content with the language suggested by the Petitioner for Section A.3.b.
 
After further discussion, the Board agreed to delete from June 17 Public Hearing List of Conditions,  Section A. Traffic Flow And Safety, item identified as 3. b which reads:
The applicant shall pay for extra services incurred and any additional amounts associated with traffic calming devices or services, above and beyond the escrow, shall be paid by the applicant, as deemed applicable by the Lenox Board of Selectman.

AH asked about #7, which reads: The applicant shall reimburse the cost of the construction of a sidewalk between the southernmost end of the Elm Court property & Hawthorne Street, as approved by the Lenox Department of Public Works, in conjunction with Board of Selectman’s approval.  The funds for said construction project are to be placed in escrow, pursuant to an estimate, by the applicant. AH wanted clarification as to if the intention of the Board was that if a sidewalk were to be constructed, it would go the entire length of the wall at Elm Court.  RFjr said that he had added “southernmost” and it could be changed to “northernmost”. The Board discussed that the length, etc., could be decided when discussed at Board of Selectman’s meetings on the subject.  Then it was agreed to amend #7 to read “between the Elm Court property…..”
Mr. Hawthorne, in answering Mr. Ketchen’s question on the length of a proposed sidewalk as determined by the Stockbridge Board of Selectmen, said that it would go to the northerly curb cut. Additionally Mr. Hawthorne suggested that the text of Conditions Determined As Of June 10, 2015, #7 of Section A, Traffic Flow and Safety be changed from “as approved” to “if approved”.  
#8.  The applicant shall alter its employees’ shift times and delivery times to minimize traffic congestion during peak times, i.e., 7 am to 9 am and 3 pm to 6 pm. The Board agreed to the applicant’s request to change the word “alter” to “stagger”.
Performance Bond-Mr. Ketchen said that the contractor’s performance bond is required.  If the contractor should encounter financial problems, the bond would be insurance that the project would be completed at no additional cost to the Town.  The Town is relying on the applicant to provide the funding for improvements to the water and sewer infrastructure as well as the sidewalk (if it is decided by the BOS to construct a sidewalk) so a second performance bond from the applicant is also required in the event a financing issue arises and the applicant is unable to complete those improvements. This bond would ensure that the job would be completed at no expense to the Town.  Mr. Ketchen added that Lenox wants to be in control of the project at all times.  Through the Town’s procurement process, they would secure a contractor for that work.  GM has recommended to Mr. Ketchen language from MGL Chapter 41 Section 81U which contemplates this exact situation.  The suggested wording would be:
        The petitioner shall post a performance bond acceptable to Town Counsel for the improvement to water, sewer infrastructure and the construction of a sidewalk in a public way.  SLC suggested that regarding sidewalk, the following should be added:  “if relevant or if decided the sidewalk”.  The Board agreed with this language. This item is identified as #17.
Compliance Review-SLC in terms of making this special permit personal to Front Yard, suggested a straw vote initially to discuss.  One opposed.  
CS asked if the Board would discuss a performance bond for the project itself or the infrastructure and what would happen if construction halted before the project was completed.  CK responded that this was not a staff recommendation.  GM responded that the building is in Stockbridge, so the staff’s concern is primarily with the infrastructure which is in Lenox.  AH did not think that the Board could require that.  Attorney Arienti said that it would be unorthodox for an owner to provide a performance bond for its own completion unless it is for an insurance requirement or a construction finance requirement.  
RFjr said that this special permit must be personal to Front Yard only.  If they want to sell or transfer the property that entity would have to apply for a permit.  He said that during the lengthy hearings, Travaasa has presented that they have specialty resorts and only manage resorts.  There was no mention by the applicant of a transfer of the property. He said that members of the public brought forward that Travaasa routinely flips properties.  RFjr said that he has great concerns about what was being presented and how it would be run and feels that it is very important that whoever the subsequent owner is, they must come before the ZBA as it possible that Lenox could end up with something different.
SLC disagreed, stating that a subsequent owner would have to adhere to their presentation, the special permit and the conditions of that permit. She added that the ZBA has never asked for a business plan of petitioners and questioned if this was the motivation or if it is because the Board doesn’t like the business plan of another owner.   RFjr said that he feels that it is beyond the scope of the ZBA, but feels it is interesting that members of the public have asked for a business plan and it has not been presented.   
SLC offered to the Board that the applicant be instructed that if you sell the new owners they must have to do exactly what the Board tells them to do.
RF responded that he felt that SLC was confusing the conditions in the structure, parking and lighting with the reality of what this project may be.  He believes that the reason the other four members voted in support of this project was because it was represented that they, Travaasa, operates like a nice boutique arrangement, that it is a family friendly and retains their employees.   RF said that this claim turns out to not be true.  He stated that this will fit into this residential neighborhood despite the opposition from the neighborhood because of who they are and what they represented themselves to be.  He concluded that if the applicant wants to flip the property, the ZBA would have to approve it.  
SLC suggested that the ZBA could condition the permit by saying that if the Petitioner were to sell in five years their permit would terminate.  
Mr. Hawthorne responded that the restriction within this special permit would never be acceptable to a big brand, e.g. Marriott of Holiday, and restricting a transfer would eliminate their ability to finance the project.  
SLC asked the Board if they agreed that there is more protection if the permit didn’t end upon the sale of the property.  She posed the possibility that if the permit “goes up in smoke” with a transfer, the Board could be setting up something worse.  A chain with unlimited resources could acquire the property and could easily cover the cost of building a road to access the property through Stockbridge and Lenox would have nothing to do with it.
RF feels that by not restricting the permit in this way the Board is conveying to the opposition that the ZBA is not listening to their concerns. The applicant can sell to someone who would run a substantially similar operation.  SLC said that the only way the Board could insure that is to force them to continue with the same limitations on the same permit.  RF emphasized that they would have the same limitations but they might sell it to someone with a totally different philosophy and who runs the resort in a totally different way.  
GM said that a subsequent buyer could not run it totally differently because they would have the same special permit that was granted.
RF said that the Board is not limiting what a subsequent buyer can do inside or the kinds of events, but it is limiting the lighting, parking, and amplification.
RFjr reminded the Board that the night before the Board voted on this project, this kind of condition was discussed and it was agreed it was the kind of condition the Board would talk about further.  He said that he would not have voted in favor if he knew that this would not be a condition.  He commented that if this is not a condition, he would take his vote back if he could.  
SLC did not understand how asked how this particular condition could be legal and prevent the “flipping of property”.  She asked if the ZBA could say if the applicant sells the property within a certain number of years the permit would terminate.  RF answered in the negative and said that if the Petitioner sells the property to another entity (He stressed that entity must be defined.) that new entity must come before the ZBA and satisfy the Board that it is essentially the same operation. SLC questioned how would that work legally and suggested another consultation with Town Counsel.  Mr. Ketchen interjected and confirmed that Mr. Hawthorne had just stated that the applicant could not finance this project with this type of condition, therefore it was more important to deal with this fundamental issue first before questioning whether it was legal or not.  
RFjr and RF disagreed and RFjr stated that the applicant has not submitted any financial information to the Board, but now they are saying this condition would prevent them from getting funding.  He said that the applicant has made representation to the Board that has not been100 % true.   Mr. Hawthorne objected to that accusation.
SLC suggested creating a condition that would be satisfactory to all parties and concluded that no one really knows what they are talking about.  Once the wording is complete to satisfaction, it could be submitted to Town Counsel for review.  She said that presently there is a condition that says if you flip this property within 5 years, which is just like one requesting a change in their parking arrangement or seeking any change that would be incorporated within the Board’s purview; the applicant would have to come back to the ZBA.  RFjr added that that would not just apply to a “flip”, but selling or transferring or anything.
Mr. Hawthorne called the Board’s attention to:
Response to Proposed Conditions 6/10/15-Front Yard, LLC Special Permit
  • Section B.15, the Petitioner suggests this condition would preclude the Petitioner from securing construction or other financing for the proposed project.  Restricting the transfer of the permit in this broad sense eliminates any available default remedy for a potential lender.
The Petitioner suggests that the concern from the public was specifically related to the property being sold to a “big brand” hotel company.  Therefore, the Petitioner suggests that if this type of condition is contemplated that it be stated as follows: “This special permit shall not be transferable to a subsequent owner of the property if said owner is Marriott, Hyatt, Hilton, or Intercontinental Hotel Group (parent company of Holiday Inn), and in the event of such a sale this special permit shall terminate and cease to exist upon the closing of such transaction.”
AH said that he cannot imagine anyone listed in this suggested condition that would buy the property.
SLC queried if the Board is more concerned with the name of the hotel than actually what happens.  She reiterated that if the permit terminates and some large chain buys the property it is possible that they would come before the Board with big ideas and promises with a larger operation or they will avoid Lenox altogether because they have enough money to build a road for access to Stockbridge.  RF said that he would love for that to happen.
GM said that her concern with limiting it by making the special permit personal to the applicant at hand was the creation of a white elephant, a fear voiced by the public back in January in the early stages of this petition process.  It would be onerous for Front Yard to come before two towns to change their permits and onerous for a new owner to come to town and start from the beginning. She said that in discussion even with Town Counsel, the opinion was that the permit could be personal to Front Yard and that a time limit could be set, but she asked the Board if they wanted to promote economic development and be friendly to businesses who are choosing your community.  RF objected saying that Travaasa was not “choosing” Lenox. GM continued by saying that she thinks that these are road blocks and that it conveys that we are saying we don’t want you here.  GM stated that Lenox will get a huge multiplier benefit from the applicant being on Old Stockbridge Rd. and being able to come into downtown Lenox.  RFjr vehemently disagreed.   GM responded that she didn’t want to get into a discussion about that but said that this is the reason why the staff does not recommend the permit personal to Front Yard.  RFjr said that he did want to discuss and stated that half of downtown Lenox is vacant even with the number of resorts in the area.   He feels that 98% of the benefit goes to Stockbridge.  He does not know if this project will bring more customers or if other business will be attracted to Lenox.  He claims that there is evidence that Travaasa does not make a long term investment in all of their resorts, so he believes it is reasonable to have a condition to make sure they make a long term investment or provide a way to insure the Board that if the property were to be transferred into another name by any means that it would be an entity that wants to have the same ideals that made this petition seem attractive.  
CS said that he has always been under the assumption that special permits went with the property.  CS thinks that it is totally illegal to tell Travaasa who they can’t/can sell to and believes the issue is, can the permit go with the property or does the permit go with the individual?  He is of the opinion that if the applicant is restricted in this manner, the project will not “fly”.  CS feels that at some point, whether it is 5, 7 or 30 years, the entity probably will not be Travaasa and there are restrictions on how it is to be operated.
RF feels the suggested condition is not enforceable as it is meaningless.  SLC agreed and believes Travaasa is in the position of very limited options.  She said that it is quite small and questions whether there would be anyone who would want to buy it.  Anyone who wants to buy it and add to it would have to come before the long process all over again in both towns and reapply under the Scenic Mountain Act.
RF reiterated that Travaasa claimed that they do not flip properties. SLC questioned if that was justification of the expiration of a special permit.  RF said the permit would not expire, but the Board would require that the property be sold to a buyer with a similar philosophy.  SLC questioned how that could be enforced.  RF said that the Board could say that if the Petitioner chooses to sell they could renew the permit or get the Board’s permission.  It would not cease, he said.
AH said that once a permit is issued, it is issued.  RF argued that it could be made personal to the applicant.  
GM stated that a variance runs with the land, but you can make a special permit personal to the owner.  If the owner sells it, the permit goes away.   

SLC believes that by making it personal it means if you sell the property, the permit terminates. RF believes that it depends on how it is phrased. CS doesn’t understand how the Board would have the authority to dictate who the property could be sold to. SLC provided a scenario whereby an integral member of an organization is no longer there, which threatens the survival of the organization, and they need to sell but cannot.  RFjr believes that it is not a matter of who they sell the property, but a matter of making sure that whoever the property is sold to maintains the same type of resort that was represented and approved.  He doesn’t think that any of the conditions thus far insure that.  
CS said that the economy is not predictable and asked what would happen if the economy should falter.  He questioned the legality of restricting a sale.  RF supports making the special permit personal so that if another entity takes over, the Board must approve.  He wants to know what kind of operation a buyer would have.  SLC asked if RF was asking for a business plan, reiterating that the Board has never asked a Petitioner for one.  She feels that it is totally unfair to condition this special permit by whether the Board likes the next buyer.  AH said that he is against any restrictions and that this condition could end the project.  CS said that he also did not support the condition.  
RF said that he is in favor of the condition.  He feels that the representation that they can’t get financing if this happens is simply a representation.  
RFjr stated that the vote was 3-2, therefore it didn’t matter whether he was in favor or not, but said that I wanted to go on record again that if he could he would revoke my vote in favor of this project.
SLC felt that was inappropriate.  She asked the Board to try to resolve this issue in a way that everybody would be happy as she feels that the Board should act together wherever they could find unanimity.  She thinks that there may be an effort to find middle ground, but she doesn’t know if there is such middle ground available.  
RF asked that Town Counsel be consulted.  SLC agreed and said she would like to see if there was some sort of middle ground which would make every member of the board satisfied that the purpose of this permit would be effectuated and the Board would continue to have oversite as appropriate.   
CS told the Board that he was confused about conditioning.  He feels that there can be conditioning where the Petitioner returns for a review in 2-3 years and that if necessary then the Board can make changes.
SLC suggested that the discussion come to an end and that Town Counsel would be consulted on these two items:
  • Under what circumstances can the Board say to the petitioner “If you sell this property we would like some further information from the buyer which is short of saying that if you sell this property the permit automatically terminates.  What leeway do we have? What kind of room do we have in there to have a condition that would allow that kind of structure short of this permit going “poof” upon any sale.”  
      2)    Short of an auto expiration of the permit in 3 years or whatever, what would be appropriate language for a requirement of a review.  
CS added that he would like to ask Town Counsel that if the petitioner agrees to the Board’s condition that there would have a review in 3yrs and make modifications as needed if that would be acceptable? GM responded that the petitioner can request to modify their own special permit but the Board can’t say to the petitioner that they are changing the special permit. It has to come from the petitioner.  
CS said that the Board would not be changing the permit but giving a condition of the permit that says that after a certain amount of time we are going to have a discussion about your noise level.  Everyone understands. GM said that a review is fine and it is legal, but the Board can’t change a special permit.  
Attorney Glover, who represents Carol Grossman, an opponent to the project said that she, Attorney Arienti and Mr. Ketchen agree that that is not a legal condition.  She said that it may have been included, and perhaps it was agreed to, but she doesn’t feel that it is enforceable.  She encouraged the Board to word the conditions so that they are enforceable.  GM explained that the BETA conditions are specific therefore are enforceable.  They state what the petitioner would do if they hit the benchmark suggested by BETA.  She also said that there is another safety check as the Town has a zoning enforcement official who can penalize a petitioner for not complying with the special permit.  
Attorney Arienti said that one of the reasons he has been very supportive of the type of solutions BETA has presented is the inclusion of “who, what and when”.  There are standards in place and guidelines are set.  He said that if the board were to see certain variations of performance which happens to deal with traffic then certain measures could be implemented and a fix is in place, an identified solution in the event they hit the mark or exceed it, there is mitigation in place.  He added that in all the case law that he has read this is an acceptable condition.  An unacceptable condition would be in two years we will revisit the issue and then at that point in time we will get together and figure out an agreeable issue.  That would not be legally enforceable.  
SLC suggested to the Board that their conditions be more specific to establish a benchmark so that they can be enforceable.  
CS discussed how reviews have been done in the past and gave an illustration of a permit being granted to a petitioner for three events, but the Board has received complaints of noise.  At a review the Board could reduce the number to two events.  Now he understands that is incorrect.  He wondered how there could be a condition unless you have some data to begin with.  He asked how one could determine how much disturbance is there unless you let them do it and then modify based on what problems, if any, they are having.  Mr. Ketchen responded that the Board could lower the threshold.  CS said that he didn’t want to make it too restrictive.
SLC suggested that Town Counsel be consulted to see if there could be an agreement, like a contract, between the Town of Lenox and Travaasa that would say that if the Board does not feel that the permit is being satisfied the petitioner will come back for a modification of their special permit.  This could be by agreement of the Board or the zoning enforcement officer.  All agreed.
CS made a motion to continue the hearing to June 29, 2015 at 7:00 PM.  AH seconded the motion and the Board voted to agree 5-0.  
Respectfully submitted,
Peggy Ammendola