West Stockbridge — Following years of disputes, a conflict between West Stockbridge entertainment venue The Foundry, 2 Harris Street, and an abutter may finally be put to bed after those parties found middle ground.
On July 15, the town’s Planning Board approved amended and restated conditions for The Foundry’s special permit, replacing three previous conditions with those stated in a negotiated agreement that settled the action of two merged Massachusetts Land Court cases. Those cases were filed by the venue’s abutters, residents Truc Nguyen and Trai Thi Duong and their restaurant, Truc Orient Express Inc., naming Board Chair Dana Bixby and her dais along with the corporate entity that owns The Foundry, Two Harris St. LLC, as defendants.
As a result of the settlement agreement, the case was remanded by the Land Court back to the Planning Board to take action in what the parties hoped would be in accord with their negotiations.
The Foundry, through its attorney William E. Martin, principal in Martin Law Offices, filed a Special Permit Amendment Application on June 18 with the Town of West Stockbridge, the subject of the evening’s meeting.
A copy of that Special Permit Amendment Application can be found here.
“We spent a lot of time negotiating this, and it was negotiated in excruciating detail,” said attorney Mitchell Greenwald who represents Nguyen, et al. “The parties are happy with it.”
Generally, this latest and final iteration limits the venue’s outdoor events to 7 P.M. as opposed to “dusk,” as was previously in effect; restricts the use of drums to outside on the patio bar; and prohibits drums, drum kits, amplified bass, and electric bass from other outdoor events. No changes to provisions reflecting indoor events were incorporated in the document.
“I think, the bottom line is they present a set of conditions that are workable for The Foundry and certainly acceptable for its business activities and … had been crafted in a way that affords the protection the abutter has been seeking,” Martin said to the dais.
As a technicality, board members also approved adding operating owner Foundry West Stockbridge LLC as a co-applicant to the special permit that originally listed only Two Harris Street LLC, the real estate property owner, as its applicant. With the vote, both entities are bound by the special permit.
Background
On December 5, 2022, the Planning Board granted The Foundry a special permit allowing the business to operate as a performing arts venue. According to the permit, owner Amy Brentano was required to purchase sensitive sound-capturing equipment, including a microphone to be placed at the property line, and detect if noise levels exceeded 60 to 65 decibels. That sound-measuring equipment provided a data log showing volume levels.
Situated about 50 feet from the venue, Nguyen, Duong, and Truc Orient Express filed an appeal of the granting of that permit on December 22, 2022, to the Massachusetts Land Court, alleging the music coming from The Foundry was detrimental to the restaurant and its patrons and interfered with Nguyen and Duong’s enjoyment of their residence on the tract. Additionally, the allegations included assertions that the special permit conditions approved by the Planning Board were “not practical or enforceable,” the decision was based on improper evidence and on deliberations outside of public view, and one voting member should have been recused from the decision.
A copy of that complaint can be found here.
Meanwhile, Nguyen and Duong filed 13 excessive-noise complaints against The Foundry, later appealing decisions by the town’s Zoning Enforcement Officer Brian Duval for allegedly having erred in handling of the complaints and finding that no special permit noise violations occurred. After numerous hearings, the town’s Zoning Board of Appeals (ZBA) determined 12 of those complaints were determined not to be violative of the venue’s special permit. However, an August 22 ZBA decision found in favor of Nguyen and Duong.
In May 2024, The Foundry requested a ruling that all sound-monitoring requirements be dropped, reasoning the burdensome provisions were unnecessary.
On September 17, following expert testimony and a site visit, Planning Board members unanimously approved an amendment to the entertainment facility’s special permit, altering the sound-monitoring requirement from being determined by an outdoor measurement to one indoors, among other provisions.
On October 16, Nguyen, Duong, and Truc Orient Express returned to Massachusetts Land Court, filing a second action naming the same defendants as in the first complaint and asking that the amendment secured the month prior be annulled. As with the initial filing, it alleged the music coming from The Foundry negatively affected the site’s business and residents. In addition, the complaint alleged the Planning Board exceeded its authority in granting the permit and its decision was unsupported by the evidence before its members. The complaint also alleged the Planning Board’s use of Duval to enforce the special permit provisions was improper as that individual lacked “the necessary expertise” to perform the job.
A copy of that complaint can be found here.
The two cases were merged in the negotiated settlement.
Specifics
Although four special permit conditions were stated in the settlement proposal, including condition three, only conditions four, five, and 10 were affected by the agreement and the subsequent special permit.
Those provisions allow live music on the patio bar on Thursday, Friday, and Saturday, only ending by 9 p.m., with two performers maximum; bars amplification; bars drums; and designates that the sound equipment be arranged so the sound is directed away from the Nguyen home and restaurant.
Additionally, from April through October, The Foundry can offer up to four non-consecutive one-day outdoor events on the Foundry Green between 10 a.m. and 7 p.m., without drums, drum kits, or amplified or electric bass, and with the sound directed away from the Nguyen home.
Finally, the agreement only applies to The Foundry and not to a subsequent buyer of the 2 Harris Street property.
The Planning Board decision was unanimous, with the vote taken by Chair Dana Bixby, board members Christopher Tonini and Andrew Fudge, and new associate member Mark Scoco appointed at the session to replace the position formerly held by Sarah Thorne who resigned. The meeting was held in person only.
Moving forward
Following the evening’s vote, the Planning Board has 21 days to file the written decision with the town clerk, starting the clock on a 20-day appeal deadline until the action is final and the Land Court cases can be dismissed.
Once that is done, The Foundry special permit will “no longer be subject to challenge,” Martin said.
However, he cautioned that, at this point, the only person having standing—legal ability—to appeal the special permit approved would be “a different abutter.”
