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And the beat goes on: West Stockbridge delays decision in appeal involving eatery and music venue

Zoning Board of Appeals to request sound engineer, expert assistance.

West Stockbridge — Following more than two hours of testimony, the West Stockbridge Zoning Board of Appeals voted unanimously on June 29 to continue the hearing to July 24, allowing members to seek the assistance of a sound expert in the appeal filed by Truc Orient Express (Trai Thi Duong and Truc Nguyen) involving The Foundry (Two Harris St. Inc.) live music venue.

The appeal cites a decision by the town’s zoning enforcement officer, Brian Duvall, following a complaint filed by Duong and Nguyen regarding sound emanating from The Foundry that was allegedly above allowable decibel limits as prescribed in the venue’s special permit granted on December 5. That appeal alleges the facility was in violation on three dates, two in April and one in May. Although Duvall found that a violation occurred by The Foundry on a fourth date in February, he reported that the venue did not violate its special permit on the April and May dates listed in the appeal.

Duong and Nguyen operate a restaurant as well as live on their Harris Street property that, per their records, is about 50 and 80 feet, respectively, from The Foundry. In accordance with the special permit, Foundry owner Amy Brentano purchased technology that monitors the sound coming from inside the site, with that sound limited to 60-65 decibels at the property line. Should the sound exceed those limits, the permit provides that The Foundry would be in violation of the permit.

During the meeting, Duvall stated that he aligned the data coming from The Foundry’s sound equipment with audio depicting the identical timeline so he could determine the sound made at the time of any decibel spikes. He said he played that audio through his computer speakers and found the sound spikes were allegedly made by ambient noise emanating from trucks on the nearby turnpike, outside voices speaking, or wind, but not any noise coming from an event inside The Foundry. “If I don’t hear anything, what’s clear is that the truck traffic is causing decibel spikes throughout the whole recording,” Duvall said. “I’m not going to fine [The Foundry] in violation for something that is not caused by them.”

He said he explained his position to the town’s planning board by written letter and stated “that it wasn’t fair to The Foundry to be responsible for every ambient spike that was happening in the neighborhood.”

At the hearing, Duong and Nguyen’s lawyer Mitch Greenwald produced a written report dated June 29 from his client’s expert, Jeffrey Komrower of USA Noise Control, that shows alleged decibel spikes during the April 7 performance from data logs reported from The Foundry’s equipment. The expert boosted the audio by five decibels for the report, Greenwald said. When matched up with the audio recording taken simultaneously, the document alleges “many instances where music from the performance was clearly audible,” with the sounds primarily coming “from the amplified bass guitar and secondarily from the bass drum.” Other graphs provided by Greenwald depict numerous spikes during the February 11 and both April performances, with graphs showing greatly decreased spikes after those performances.

Greenwald said his expert advised that the planning board’s protocol for measuring sound from The Foundry should have included a baseline of ambient noise and it would have been proper to measure the noise from that point, with Duvall being put in a position to separate out ambient noise from The Foundry’s interior sounds. He said Duvall could have called in an expert to interpret the data but did not.

“I’m here to tell you that myself, my mom, our customers, we actually hear music escaping the building ourselves and so I don’t think that should be discounted at all,” said Truc Nguyen, who took the stand at the hearing. “I heard that my family and myself, we’re just interested in dinging The Foundry for every single spike that goes above the [weighted sound] level of 65. If that was the case, we would have appealed every single event.”

Truc Nguyen addresses members of the West Stockbridge Zoning Board of Appeals and onlookers during the June 29 session. She is part of an appeal that alleges sound emanating from The Foundry in violation of the venue’s special permit. Photo by Leslee Bassman.

Bill Martin, on behalf of The Foundry, successfully objected to an offer by Greenwald to play the audio that includes sound coming from the venue off his phone since it had no bearing on the zoning officer’s decision. “Your role tonight is to focus on [the zoning officer’s] actions and decide whether or not his review of the language of the special permit was done properly or not,” Martin said to the board, adding that Greenwald’s presentation was a “rehash” of the special permit application and not relevant to the appeal.

Bill Martin, attorney for respondent The Foundry, objects to the Truc Orient Express’s request to play an audio from his cell phone of noise that allegedly was heard inside of the restaurant’s property. Photo by Leslee Bassman.

He said Duong and Nguyen’s position is that it doesn’t matter if the sound comes from the Mass Turnpike or The Foundry but only that if spikes exceeding 60 or 65 decibels are noted, then a violation by The Foundry has occurred. Although the special permit didn’t note that, for a violation to occur, the decibel limits must be exceeded solely by The Foundry, Martin said the town’s officer correctly interpreted the permit that the exceeding sounds must emanate from The Foundry for it to be liable.

He admonished the board for questioning the town’s zoning officer’s ability to make a judgment as to where the sound that exceeded the decibel limit was coming from and suggested the group continue the hearing at a time they could hear the sounds in question directly from The Foundry’s equipment. “Put a speaker up and we’ll listen to it,” Martin said. “They say, ‘you can hear it.’ Your zoning officer says he can’t hear it. You can decide for yourself. It doesn’t matter what anybody says they can hear from their house. You are governed by this requirement.”

With neither party questioning the quality or calibration of The Foundry equipment, Greenwald objected to the placement of the microphone used to pick up the sounds as being too elevated and far from the end of The Foundry where most of the music is coming from.

Brentano, who also took the stand at the hearing, said Greenwald’s expert wasn’t present at any planning board hearings—the precursor venue to the June 29 appeal—that The Foundry expert attended. Additionally, she said the audio being recorded on her equipment is compressed and must be sent to a sound engineer “to add gain to it,” or amplify the sound to be heard, with 20 decibels of sound already added to the audio recording that was reviewed by Greenwald’s expert in his report.

The Foundry owner Amy Brentano, with her attorney Bill Martin, addresses the West Stockbridge Zoning Board of Appeals about the specificity of the venue’s sound monitoring equipment. Photo by Leslee Bassman.

“Sometimes you can hear a little bit of music, but it’s not as loud as the other sounds that you hear,” she said of her verbal greeting to customers, birds, wind, or truck traffic. “So, it’s very difficult to say that just because you might sometimes be able to hear music at the property line of The Foundry, that it’s causing a 70 or 75 [decibel] spike.”

Martin and Brentano offered the board recordings and decibel logs from the venue during periods when no performances were happening. Brentano distinguished between high frequency sounds, including a voice singing, and low frequency sounds, such as drums, base, and “the rumbling of traffic on I-90,” with The Foundry located approximately 800 feet from the Massachusetts Turnpike. Greenwald said the low frequency sounds are more of an issue than other noises, and Nguyen said she hears beats, or “amplification of a very low frequency.”

According to Brentano, the microphone of the $6,000 sound monitoring equipment can’t be moved around due to an attached cable and was placed at the end of the property, in between the residents and the restaurant, “because those were the two places that my neighbor was saying were being affected so we were trying to get the average of both.” Brentano explained, “If my neighbor is hearing music or feeling music, which she has been claiming for a long time, maybe she does, I’ve never been invited in to witness that but I also haven’t seen any evidence of that in the way that we have had to prove our innocence and our compliance.”

By continuing the hearing to July, Martin and his client will have time to review the report produced by Greenwald at the meeting and provide a response to it, Member Jack Houghton said. Chair C. Randolph Thunfors and Member Joe Roy were recused from the hearing, with James “Dutch” Pinkston IV, Vice Chair, at the helm.

With Houghton’s motion, the board will ask the Select Board at its next meeting to fund a qualified sound expert or engineer to analyze the data and evidence presented from both parties, including the special permit protocols, and submit those findings to the group. The board offered Greenwald and Martin the opportunity to submit in writing what issues they feel the expert should review.

With another appeal round already in the pipeline between the same parties, the July meeting may consolidate both alleged grievances.

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