West Stockbridge — Entertainment venue The Foundry, 2 Harris Street, and abutters Truc Orient Express, 3 Harris Street, together with owner Truc Nguyen and her mother Trai Thi Duong at 1 Harris Street, will again greet each other on a battlefield of sorts, a courtroom.
After nine contentious public hearings covering about five months of testimony, the West Stockbridge Planning Board unanimously granted The Foundry a requested amendment to its special permit on September 17. That decision, among other provisions, altered the sound-monitoring standards required of venue owner Amy Brentano by its December 2022 special permit from being determined using an outdoor measurement to one indoors. The amendment offered a solution for the town’s Zoning Enforcement Officer (ZEO) Brian Duval who found it difficult to discern the venue’s sound from exterior noises—nearby highway traffic and wind—recorded during his investigations prompted by 13 complaints of excessive noise from Nguyen and Duong. The proprietors of restaurant Truc Orient Express, Nguyen and Duong also live in a home on the property that is just 50 feet away from The Foundry. In 11 out of the 13 noise complaints they filed, the Zoning Board of Appeals confirmed that The Foundry had not violated its special permit.
Additionally, the Planning Board’s amendment moves away from incorporating four one-day summer outdoor events in its provisions, instead allowing those programs under the condition that the Select Board grants The Foundry an entertainment license for those programs; the events are held between 10 a.m. and dusk; and the sound equipment is constructed away from the neighbors.
On October 3, the Planning Board submitted its written decision on the special permit, confirming the group’s stated results from the previous month’s session. That decision can be found here.
On October 16, the abutters, through their attorney Mitchell Greenwald, filed an appeal of that decision in the Commonwealth’s Land Court, citing the four Planning Board members who voted for the amendment—Chair Dana Bixby, members Christopher Tonini and Andrew Fudge, and alternate member Sarah Thorne—as defendants and asking for a review and an annulment of the prior decision. That filing can be found here.
In his appeal on behalf of his clients, Greenwald states the Planning Board erred in its decision that the venue’s sounds are not “detrimental to adjacent uses or to the established or future character of the neighborhood,” relaxing the noise-monitoring conditions imposed on The Foundry when it had received citations in April and August for exceeding its special permit sound limits.
According to Greenwald, not only can music from The Foundry be heard and “physically felt within the restaurant and on the deck outside it,” the same can be said of Nguyen and Duong’s home, “seriously interfer[ing] with [their] general peace and quiet and ability to work from home, and their sleep.” He suggests that, although the conditions may help abate the noise to some extent, they don’t “eliminate the detriment to adjacent uses or to the established or future character of the neighborhood,” statements that contradict the Planning Board’s findings.
The filing puts West Stockbridge ZEO Brian Duval at the center of the controversy once more after he testified at numerous prior hearings involving complaints made by Nguyen and Duong who opposed his findings that The Foundry did not violate its special permit. “The ZEO lacks the necessary expertise to perform this function,” Greenwald states, referring to the enforcement process the Planning Board put in place in its special permit draft.
Greenwald objects to certain outdoor performances, alleging the summer events wouldn’t require sound measurements as with the other The Foundry programs “as long as the Select Board has issued an entertainment permit” for the performances. He states that the provision is tantamount to “an illegal delegation of the [Planning] Board’s decision-making obligations to the Select Board” and for which abutters aren’t required to receive notice or an opportunity to be heard, or object, to the permit.
The appeal is also based on Thorne and Bixby being at the dais for the Planning Board’s decision. Greenwald states that those members should have recused themselves due to conflicts with the case, citing Bixby’s donation to Stayin’ Alive: The Foundry Fund and Thorne’s connection to The Foundry as a result of being on the board of the West Stockbridge Farmers’ Market. Finally, the filing states that there was little or no evidence as to the character of the neighborhood presented at the hearing, evidence that may have shown the area was the longtime home of the Nguyen/Duong family.
“Compliance with town bylaws and permits has been an issue since the beginning,” Nguyen said in an email statement to The Berkshire Edge. “Initially, the Foundry was completely out of compliance with zoning because it had no special permit. Yet the town allowed this unpermitted business (and an unpermitted stage) to continue to operate for well over a year. It produced excessive noise levels, which was detrimental to my family’s businesses and infringed upon our right to the peaceful enjoyment of our home.”
Although she said The Foundry eventually received a special permit, that document’s conditions were “deeply flawed” and its continued non-compliance allowed, including the sound-monitoring microphone being incorrectly placed from the noise source. For Nguyen, the sound emanating from the venue “continues to be highly detrimental” and the new conditions “do not require consistent monitoring of events,” adding to her family’s frustration. She called the enforcement of those conditions “poor to non-existent.”
On December 22, 2022, the same parties filed an ongoing appeal of the Planning Board’s granting of The Foundry’s special permit, naming members of the Planning Board as defendants and requesting Judge Kevin T. Smith annul the permit. A status conference on that action is set for October 31, and the newly filed appeal has also been assigned to Smith.