West Stockbridge — Pittsfield attorney Mitchell Greenwald, who represents resident Truc Nguyen, has filed a complaint in state Land Court against the town’s Planning Board over its decision to grant a special permit to The Foundry.
On December 5, after a series of five hearings, the Planning Board made its decision to grant the performance arts venue a special permit application to continue operating at 2 Harris Street.
Nguyen co-owns a restaurant, Truc Orient Express, at 3 Harris Street, and also co-owns a residential property near her restaurant at 1 Harris Street.
Throughout the five hearings, Nguyen accused Foundry owner Amy Brentano of holding live, disruptive performances that were in violation of town noise regulations.
According to documents shared with The Berkshire Edge by Greenwald, the complaint was filed with the land court on Friday, December 23.
The complaint was filed on behalf of Nguyen and property co-owner Trai Thi Duong.
It was filed against members of the Planning Board: Chairman Dana Bixby, members Susan Coxon, Gunnar Gudmundson, Andrew Fudge, and alternate Sarah Thorne.
At the board’s Oct. 11 meeting, it named Thorne as an alternate because board member Ryan Beattie recused himself from the series of public hearings due to being an abutter of The Foundry property.
The complaint was also filed against Brentano’s company Two Harris St., LLC, which applied for the special permit.
In the complaint, Greenwald wrote that the approved special permit has a detrimental effect on both Nguyen and Duong.
“Plaintiff Truc Orient Express, Inc. operates a restaurant about 50 feet away from the building housing the performing arts venue,” Greenwald wrote. “The proposed music, some of which includes amplified bass and drums, is audible and can be physically felt within the restaurant and on the deck outside it, which is used for dining and is thus extremely detrimental to [the restaurant’s] business. The house owned by plaintiff Duong and resided in by herself and plaintiff Nguyen is also about 50 feet from the music source. The music is heard and felt there as well, and seriously interferes with their general peace and quiet and ability to work from home, and their sleep.”
In the complaint, Greenwald wrote that the findings made by the Planning Board are “unsupported by the evidence and are arbitrary and capricious, in particular the board’s findings relative to [town zoning bylaw] Subsection 6.3.4 c — that the proposed use ‘will not be detrimental to adjacent uses or to the established or future character of the neighborhood’; and Subsection 6.3.4. e — that the proposed use ‘will not overload any …municipal facility to such an extent that the proposed use or any existing use in the immediate…will be unduly subjected to hazards affecting public health, safety, or general welfare.'”
Greenwald further claims in the written complaint that “the decision of the Planning Board was based in part on significant material which was either: not introduced at the public hearing or made part of record prior to the closure of the hearing; or introduced at the final session of the public hearing, too late to allow meaningful public review and comment.”
He also claims that “the decision was based in part on the deliberation of the board outside the public hearing, in contravention of the open meeting law.”
In his complaint, Greenwald also claims that Thorne had a conflict of interest “which should have prevented her from participating and voting.”
Back at the November 1 public hearing, Greenwald objected to Thorne being seated on the board because Thorne is a volunteer for the Farmers Market and sits on the market’s steering committee, which he said derives benefits from The Foundry.
In response to Greenwald’s objections, Chairperson Bixby said that she would allow Thorne to sit on the board, and that “It’s really up to Sarah to determine whether or not she can serve impartially. We are acting upon advice from town counsel.”
In an interview with The Berkshire Edge, Greenwald said that the first step in the state land court process is to schedule a status conference.
Greenwald said that no date has been scheduled for the conference as of yet.
“My client has never wanted The Foundry to close,” Greenwald told The Berkshire Edge. “She wants The Foundry to operate in a way that does not disrupt her life, her family’s life, or her business. The special permit that was granted by the Planning Board really does not accomplish that.”
Greenwald added that the complaint does not force Brentano to stop operating The Foundry.
In response, Bixby told The Berkshire Edge that she could not comment on the substance of the complaint because she has not reviewed it with town counsel.
However, she said that “I think the special permit was very well done and it responded very strongly to the concerns of Nguyen in setting strenuous limits to sound levels and providing rigorous monitoring protocols with data retention and reporting available to the building inspector, should there be a need for enforcement.
“This is a good result for the town because there is such overwhelming support for The Foundry amongst abutters who see it as essential for the business life of West Stockbridge,” Bixby said. “This also includes local artists who find the offerings of The Foundry unique in creating a venue for local artists, dancers, and performances. I especially think of letters of support from Pittsfield students who gave The Foundry thanks for offering music to the public.”
Bixby went on to defend the Planning Board’s decision to approve the special permit for The Foundry.
“We worked hard to find and craft conditions for the special permit that would mitigate any detriment to the nearest neighbor,” Bixby said. “We put an enormous amount of energy into this. It’s important to the village of West Stockbridge and Berkshire County as a whole.”
Brentano did not return calls for comment for this story by press time.
PDF file of attorney Greenwald’s complaint filed with the state’s Land Court.
