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Zoning Board of Appeals Minutes, 06/29/2015

Zoning Board of Appeals
Minutes
June 29, 2015
Board of Selectmen’s Meeting Room

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.

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 18th, April 9th (Due to the illness of a Board member.), May 6th, June 10th, and June 17th.

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.

SLC said that the Board was meeting to take a vote to confirm the Board’s determination on their prior discussion of conditions.  AH noted that there were a few very minor errors that should be addressed.  RFjr said that he did not think that the Board could vote to affirm the conditions because of issues that were raised during the last meeting related to the lack of the ability to enforce if conditions were not specific enough. He felt that some of the conditions were too lenient if it is clarified that the Board is unable to make changes at a review and suggested clarification first. He was not ready to vote.  It was agreed to go forward with two remaining issues first.    

There was to be no public comment.

The issues had to do with the question of if the Board had the power upon review of a special permit to impose conditions which were more stringent than the original conditions imposed.  SLC noted that the Board had always assumed that it had the power to do that and had done so in the past in a number of special permits.  She said that she researched this and referred to the latest book written by Attorney Mark Bobrowski, an accomplished land use expert in Massachusetts, and based on what he said, the Board can do what they have thought they could do with the consent of the Petitioner not to fight it.  Town Counsel was consulted and he agreed that the Petitioner could consent to it and it would be enforceable.  This has been discussed with the Petitioner and the Petitioner has responded.  SLC read aloud Attorney Arienti’s letter from June 26, 2015, regarding: Proposal for Conditions-Front Yard, LLC Special Permit.  

AH asked how a level “F” was determined which was referred to in the section under 15) Review of Traffic Impacts Related to Outdoor Events.

Mr. Dietrich explained that the level of service ranged from A thru F which gave time delays measured at an intersection at a stop sign or turning left at an intersection during peak hours. Level “A” would be 0-10 seconds and “F” would be 50 seconds and B thru E would be in between. F would be considered “intolerable” and would trigger the condition to do some kind of implementation, e.g. a traffic officer or reduce the number of events.  

Attorney Glover asked a procedural question regarding SLC’s reference to having a conversation with the Petitioner and as a result the Petitioner produced this memo.  SLC and GM clarified that it was not the Board having the discussion with the Petitioner, but the Staff.  Attorney Glover responded that there are some critical issues coming up.  SLC said that the Board has dealt with these sufficiently and that the main issue was the Board’s power to increase this restrictiveness of conditions.  SLC acknowledged that Attorney Glover had submitted a letter and said that the Board had read her letter, but Town Counsel did not agree with some of the things Attorney Glover had in her letter.  Attorney Glover responded that she understood that the Petitioner had offered some solutions for problems that did not exist, that the level of service was not the measure of what she was concerned with and referred to the last meeting when she understood the Board had decided the Petitioner could have 9 events a week.  SLC responded that the Board has already been through this, but what was before the Board was to address the specifics of the Petitioner’s proposal which came from the Petitioner after receiving from the representatives of the Town information on what Town Counsel had to say about the limits to the Board’s power.  This proposal was the Petitioner’s efforts to address those limitations and to be cooperative.  Attorney Glover argued that it was a great disservice to the Town if the Board wasn’t going to hear from the abutters or the attorney for the abutters on the topic of the framework that was being proposed.

Mr. Hawthorne said that the time frame for opening the project would be two years.  RFjr asked that the reviews be done two years and five years from opening.  Mr. Hawthorne agreed.   

SLC said that, to the extent the Board made this a condition, the Petitioner would be asked to consent to every aspect of it and to agree not to appeal any aspect of it.  The law requires “ascertainable standards” that are tied to conditions, and that the Board would not be re-opening for just any reason.  RF confirmed that the Board could ask with regards to whatever conditions that are imposed in limited areas and that the Petitioner agreed not to appeal.   

RFjr said that usually an agreement to not appeal is not enforceable.  SLC responded that this is what was discussed with Town Counsel.  It is his view if the Petitioner doesn’t appeal within the appeal period, then it is binding.  It is not challengeable on that ground if not appealed.

RFjr asked the Petitioner to comment for the record.  

Attorney Arienti stated that the intention for drafting the submission on June 26th was the level of detail in the kind of a mechanism that was proposed for the very purpose of providing what objectively  appeared to be a series of standards, a series of penalties in the event that within the context of those particular conditions activity on the property, whether noise or what have you, if those set of objective standards were violated there was a framework in place that would be reviewed at the review period and a mechanism was set in place if there were violations.  He concluded that they were complicit and would not appeal the imposing of these conditions within this framework.

RF said that did not see how it was possible to specifically say today how the Board could modify if the Petitioner didn’t adhere to the particular standard that was applied. SLC responded that ascertainable standards would be applied.  RF argued that if the Petitioner did not adhere to the particular standard the Board required, then the Board could do something about it but he referred to Attorney Arienti’s June 26, 2015 letter where it said “specific modification” which he felt was a proposition that the Board must state what that modification would be.

Attorney Arienti, referring to “events” as an example, said that if at the first review the Petitioner did not meet the standards on the first review, and three events had been permitted, the Board could reduce to two events.  At the second review, if again the standards still weren’t met, the Board could reduce to one event. If the Building Commission found a violation regarding lighting, the escrow account would be used to resolve the issues.  Attorney Arienti said that it is impossible to call for a “fix” presently, but have found a way that they are committing to a solution.  They committed to having the money in escrow to do whatever makes the Board happy and address the concerns of the safety officials.

AH said that he was satisfied with the effort that was being made to address these issues before they came up. He believed that the mechanisms that were proposed were as detailed as they could possibly be without knowing exactly what the problem is or if there is going to be a problem. CS agreed.  He felt that the Petitioner’s presentation was nice, and was glad that they were willing to do this. RF said that it appeared to be a good faith attempt to deal with the Board’s concerns.

RFjr thought that this submission was well thought out, flexible and very generous on the Petitioner’s behalf.  He proposed three reviews versus the two, with the first one at two years after the decision.  This would be to deal with snow, construction noise, etc. CS said that he was against that, and AH felt that it was pointless to have a 2nd review.  AH said that he would be more in favor moving the last review at 4 years after opening instead of five years.   CS agreed.

Mr. Ketchen pointed out that in Attorney Arienti’s memo it is stated “2nd review within 5 years” and asked if the Petitioner’s intent was to create the second review at board’s discretion or in other words whenever the Board wants.  SLC believed it has to be a specific time.  RF asked how this would be initiated.  SLC said that it would be the responsibility of the Petitioner’s counsel to file for the requisite review a few months before the agreed time because this needed to be properly noticed with abutters notified.   Each review would have to follow this process.  To be consistent with the ZBA’s concerns for ascertainable standards, SLC felt there should be a date, but told the Petitioner that if something happened in which there was a need for an extension, they could file such a request provided it was in good faith.

The first proposed condition in Attorney Arienti’s letter of June 26, 2015 was discussed and modified as such:
  • Items A and B were modified to read:
  • Two years from the date of opening of Elm Court; and
  • A second “review” four years from date of opening of Elm Court
Additionally, it was agreed that to be included in this condition would be: The applicant is to alert the ZBA to the date of opening.

RFjr asked if in addition to the traffic study, if there should be some considerations to the number of complaints regarding public nuisance factors, e.g., accidents, alcohol related incidents, speeders, etc.  Discussion ensued on how these incidents could be tied to Elm Court.  Regarding alcohol related incidents, if it were documented that there was a connection between an incident and Elm Court and it was a negligent act it would probably be subject to review by the ABCC.  

AH made a motion that the ZBA adopt the condition and the language therein subject to the provisions that SLC stated in regards to the opening and the notice requirement.  CS seconded the motion and the Board voted to agree 5-0.

RF wanted to confirm that the Board was also adopting the last paragraph on page one which starts out “The Petitioner is willing to represent...” SLC then asked the Petitioner the following:  “Are you representing that you consent to this and will not challenge it to these specific conditions that we just voted on.”  The Petitioner and Attorney Arienti agreed.  SLC asked that the record reflect that.  

AH stated that the first full paragraph must be included somewhere.  SLC confirmed that all of item number “1” should be included with the modifications stated as well as the Petitioner’s representation on the record with the consent to this and with the agreement not to challenge or appeal and that the vote was 5-0.  All agreed and actually voted again.

In regards to item number “2” of the June 26th letter, the question was whether the Board would review the permit in the event that the owner should “flip” the property.  At the last meeting, two members didn’t want this and two members did.  In response to Town Counsel’s concern about the law and the Board’s ability to do that the Petitioner submitted this proposal.  SLC asked for the record, if the Board voted in favor of the proposed condition if the Petitioner would consent to it and not challenge or appeal it on behalf of the Petitioner.  Attorney Arienti agreed.

The condition was read aloud.

SLC thought that it was important that should the Board vote favorably on item number 2, that this too would require a fully notice hearing.

RF said that the only portion of this item that has any meaning is the first sentence which reads:   The Special Permit issued to the Petitioner shall be personal to the Petitioner for a period of 5 years from the issuance date hereof after which time said Special Permit shall run with the land.  He asked if the Board if they were satisfied with the five year period.

AH said that in his view a special permit runs with the land and he is not sure that the Board can enforce a personal condition.  He sees the commitment by Travaasa to develop this property and he doesn’t see that they are doing this to flip this property with what they are investing.  Because the world could be very different in five years he believes that the Petitioner should have the ability to sell the property should that become necessary.   

RF said that his concern was that like other resorts, Elm Court is in a residential area.  He said that Travaasa has a very good track record, but he said that he believes that they have so far sold more property than they have kept.  Mr. Hawthorne said that was not true.  RF is happy the Petitioner has  
agreed to make the special permit personal for a five year period, but he thinks that it should be a little more than that.

CS said that it was his understanding of the law is that the special permit could be restricted to the Petitioner, but he thought that the Board had discussed the damage that might do to the project. He believed that their offer for five years was fair, but he wanted to hear from the others.

RFjr said that he felt that five years was not enough and that he had considered saying ten years or more, but he compromised and said five years from date of opening rather than five years from the decision.  

Attorney Glover told SLC that the Petitioner was Front Yard LLC, which was not Travaasa; Front Yard owned the property; Front Yard could be sold; that if it was not Travaasa; anyone could run it.

SLC-Asked the Petitioner how this would apply if Travaasa were to become something else i.e., would this be applicable if there was a change.

Mr. Hawthorne responded that Front Yard LLC was the owner.  The two properties that operate under the brand known as Travaasa were purchased by Travaasa had continued to operate from the time of purchase as Travaasa and had never been sold by Travaasa.  

RF restated for clarity that the applicant/owner entity/owner/property owner was Front Yard, LLC and the proposed operator was Travaasa/Green Tea LLC.

Attorney Arienti responded that regardless of whether it was Travaasa or Green Tea, Front Yard LLC was the applicant and the petitioner. The permit would be granted to Front Yard and even though Travaasa, operating as Green Tea, because they run and manage the resort, would have the identical obligation and they would owe to the applicant-Front Yard. LLC, to abide by all of the terms of the special permit.  Attorney Arienti stated that this would not change one iota as far as substance and the uses that have been granted under and included in all submissions that the Petitioners have made in writing or orally to the Board would not change.  He said that the obligation was clear and Front Yard LLC would continue to be the property owner and recipient of the permit. It would pass on those obligations to Green Tea when operating as Travaasa to operate the resort just like the other two.  Any violations would apply to everybody and all entities.

RF stressed that anyone who is operating at that property must abide by the imposed conditions.  He repeated his concern that the philosophy Travaasa has espoused be the same philosophy of anyone who may manage the resort.  He repeated that everyone has to comply with the ZBA’s conditions which run with the land and are recorded.  

SLC stated that she felt that the Petitioner’s proposal was reasonable. She said that in the past the Board has never inquired as to who was operating an organization for a property owner and she was concerned about setting non ascertainable standards e.g. “Do I like your philosophy?”  She felt that is far too susceptible to personal predilection some of which might not be acceptable for the Board to apply in the context of a hearing. She pointed out that despite the dissent and controversy that had been expressed, many of those people who signed a petition were opposed to the size and scope of the project, but not necessarily to the project itself.  She believed that the Board had done as much as it could as to imposing reasonable ascertainable standards on the operation of the resort and even more with the consent of the Petitioner.  She agreed to the proposal and asked that it be a noticed hearing, but said that she would not agree to anything that would leave open discussion of the propriety of transferring the operating to an organization with which the Board did not agree in terms of philosophy.

RF suggested that since Travaasa has been the operating entity all along the permit should be made personal to the petitioner.  SLC asked what would be the standard if they came in for a review as it would not have anything to do with the transfer of ownership which was the purpose of the review.  RF responded that would not need standards if it were to be some other entity as the Board could just say no.  SLC stated that she would like to vote in favor, but that she would not vote for a structure that puts the Board in the position of applying standards that are not found in the law.  RF argued that the standard has been in the Petitioner’s representation, and that of those who have been to Travaasa resorts and praised their experiences.  SLC acknowledged that, but said that the Board’s history has been that they do not inquire as to who will be operating an organization and that whoever is the operator has to abide by all conditions.  She said further that she could not support a condition that allowed the Board to conduct a review based on no legally ascertainable suitable appropriate standards and was only willing to make it personal to the petitioner.  RF said that would be the owner and that would mean that anyone could come in and operate and they would be subject to the Board’s conditions.  He was not in favor of that.  

Mr. Hawthorne said that he would be more willing to commit if it were personal to Green Tea, LLC as the operator as this would help with the financing and getting equity. SLC responded that it could not run with the land, but that it could be structured with the Petitioner’s consent.  If within five years the operator changed, then the Petitioner could come back for a review, not to impose some additional level of personal requirements, but instead to insure that they would meet these conditions satisfactorily.  She said that she would vote for something that was triggered by Travaasa changing as an operator.  

RF asked the Petitioner to explain the relationship of the different names.  Mr. Hawthorne said that Green Tea LLC is a management company which owns the brand Travaasa Experiential Resorts.  Mr. Hawthorne is the President.  Green Tea operates as Travaasa.

SLC said that she would support something that would say that if within 5 years the management company changed the petitioner would be required to notify the Board and appear before the Board etc., with a fully noticed hearing, the purpose of which would be to discuss with the new management their ability and willingness to comply with the permit and conditions. This would be a standard of the review.
CS noted that the Petitioner had offered a condition for five years which they did not have to do, and the ZBA didn’t have to accept.  The ZBA could just issue the permit without a restriction or impose another more restrictive condition, but he felt that the Petitioner had a good track record.  

SLC made the following motion: With the consent of petitioner that this special permit in the event that there is a change in the management company  within 5 years the petitioner shall be required to notify the board in writing within 7 days, appear before the board within 30 days and the Board will conduct a fully noticed hearing that the proposed representative of the proposed new management appear and discuss with the board its ability to satisfy all of the terms, conditions and bylaws applicable to the permit and property and the  resort as modified by our subsequent reviews as necessary including the expectation by the Town of Lenox and the Board that said terms, conditions, and  bylaws require strict compliance therewith.

Discussion ensued regarding the significance of SLC's suggested language, and the Board's ability to make a special permit personal to a property owner.

RF said that he wanted this to be personal to Front Yard, LLC for a period of five years “or something like that” as long as Travaasa is the operating entity “or something like that” for a five year period.  This he felt legitimized all that had been represented about Travaasa and how they operated.  He said that if within five years Travaasa ceased being the operating organization, Front Yard, LLC would lose their permit.

SLC responded that she would not vote in favor of that or anything that had anything to do with the ZBA conducting an inquiry into an operating company, but that she would be willing to vote for what the Petitioner proposed with a fully noticed hearing.  She did not know what standard the ZBA would apply.  RF argued that it would simply be that if Travaasa is done, they would be done.  He added that all of the conditions run with the land.

AH said that he felt that the Petitioner had given an incredible concession with their proposal and thought there had to be a balance between the Board being assured that the resort was going to manage the way they thought it was going to be managed and the Petitioner’s ability to operate as a business. This, he said, seemed to be a good compromise between the two as it gave Front Yard, LLC and Travaasa enough leverage to raise funds with the assurance that they would have a permit.  He was in favor of adopting the Petitioner’s proposed condition with the slight change of having a noticed hearing.   

RF stated that he wants to see the project succeed, but he doesn’t “buy into” about the financing.  He will accept this condition with whatever additions that have been made.  

RFjr said that he appreciated the effort but I thought it should be personal to Front Yard, LLC, Travaasa and Green Tea.  SLC replied that she didn’t think the ZBA has the power to make it personal to Travaasa.  She said that the Board had the power to make it personal to the owner, but not to anyone else.   

SLC withdrew her previous motion.
AH made a motion that the Board adopt the second and third paragraphs of number 2 in the Proposal for Conditions-Front Yard, LLC Special Permit that was in Attorney Arienti’s letter dated June 26, 2014 with the proviso that any hearing shall be noticed.  That text is included below.

The Special Permit issued to the Petitioner shall be personal to the Petitioner for a period of 5 years from the issuance date hereof after which time said Special Permit shall run with the land. In the event the Petitioner enters into a contract with another party for the sale and purchase of the Elm Court property within the above period, the Petitioner shall be required to notify the Board in writing within 7 days of such occurrence and shall appear before the Board within 30 days of said notice along with the proposed buyer of the resort to allow the Board to conduct the second “review” of the conditions and inform the said buyer as to the terms, conditions and bylaws applicable of the property and the resort, including the expectation by the town of Lenox and the Board that said terms, conditions and bylaws require strict compliance therewith.  

This condition shall not be applicable or enforceable in the event of the initiation of foreclosure proceedings against the Petitioner by a mortgagee, or in the event of a transfer of the Elm Court property by deed in lieu of foreclosure in order to satisfy any mortgagee, lender or other creditor, or in the event of insolvency of the Petitioner requiring liquidation of the assets of the Petitioner.  

RF seconded the motion and the Board voted to approve 4-1.   RFjr opposed.

It was agreed that the only remaining item was for GM to correct typos, nothing substantive, and that she would circulate that draft among the Board to review for correctness.  

SLC made a motion to ratify prior agreements to conditions.  RF seconded the motion and the Board voted to approve 5-0.

RFjr voted to close the hearing and RF seconded the motion.  The Board voted to agree 5-0.   The meeting was adjourned at 8:40 PM.

Respectfully submitted,
Peggy Ammendola