West Stockbridge — Following months of testimony and numerous hearings, on September 6, the Zoning Board of Appeals (ZBA) upheld the decision of the town’s zoning officer, Brian Duval, in finding that the actions of event space The Foundry didn’t violate its special permit as alleged in complaints filed by Truc Orient Express Inc., Trai Thi Duong, and Truc Nguyen.
Background
A December 5 special permit granted to The Foundry by West Stockbridge’s Planning Board required its owner, Amy Brentano, to purchase sensitive sound capturing equipment, including a microphone to be placed at the property line and detect if noise levels exceeded 60–65 decibels. The permit provided that the microphone detecting sound above that level for two minutes or longer would constitute a permit violation.
Duong and Nguyen operate a restaurant and maintain their home on Harris Street, about 50 to 80 feet from The Foundry. They alleged that several noise violations occurred in April and May because of activity at The Foundry. Duval said he listened to tape recordings and observed a graph record of sound produced during the alleged times of violation and could not detect noise from the center’s events. Duong and Nguyen appealed his findings, and the ZBA held hearings on June 29 and July 24. The appeals were consolidated to the September 6 hearing.
Battle of the experts
To aid in its decision, the ZBA requested and received funding from the West Stockbridge Select Board to hire an expert, Herbert Singleton Jr. of Cross-Spectrum Acoustics, to evaluate the data from the case. According to ZBA member James “Dutch” Pinkston, the Singleton report cost the town $665, less than the initial estimate of more than $900.
Attorney Mitchell Greenwald, on behalf of his clients, Duong and Nguyen, produced reports from Jeffrey Komrower of USA Noise Control LLC, with an update on September 6.
The Singleton report weighed heavily on the Board’s decision. It stated that, due to high winds it was “not possible to separate the contributions of wind-induced noise from event noise” on the event dates in question. “Based on this review, in my opinion The Foundry did not violate the special permit sound conditions for the April and May events,” the Singleton report stated.
The Singleton report did conclude, however, that it was possible that sound emitted from The Foundry on the dates in question were audible inside the Nguyen property, that low-frequency sounds from these events are annoying to neighbors, and that other events held at The Foundry “have exceeded special permit limits.”
Kromrower’s previous report suggested the microphone position be moved from the southern side of The Foundry building to its west side, with Singleton’s report stating the idea is “worth consideration.” Singleton also suggested that The Foundry add a windscreen to the microphone to reduce the influence of wind noise on the data measuring sound coming from the center.
According to Kromrower’s update, recordings taken inside the Nguyen properties during performances “clearly demonstrate audibility.” His report found that, at certain times when wind was present, music pushed the noise level over the special permit threshold.
But, The Foundry attorney Bill Martin said wind, and not the venue’s sound, caused the noise level spikes detected on his client’s specialized equipment. He maintained that the sound emanating from the venue was below the special permit threshold before and after the wind spike.
Member Gunnar Gudmundson, who was on the Planning Board when it approved The Foundry’s special permit, said the current location of the microphone to detect the venue’s sound isn’t where the Planning Board wanted it placed per the special permit—that is, it should have been centered on the width of the performance area, about 32 feet, to capture the maximum sound emanating from the building. He said he recently went to The Foundry during a performance and noticed more sound was coming from the western side, or performance side of the venue, than where the microphone was placed, which was closer to the lobby and bar end of the building. He said the microphone placement could account for Duong and Nguyen hearing noise that wasn’t detected on The Foundry’s sound sensitive equipment.
Martin admonished the ZBA that, with Duval’s testimony, as well as the report of the expert the group hired, it was time for deliberation. “Your job here is very confined,” he said. “It is not to look at the elements of the special permit and decide that the microphone should be in a different place. There’s nothing in the special permit that talks about whether or not, at any time, it’s in violation if sound can be heard inside of an adjacent resident’s home. The question is whether [The Foundry] violated the special permit.”
The public weighs in
Resident Dana Bixby said the question before the Board is solely whether Duval’s judgment should be upheld, with the court a possible better forum for all other issues. She urged the group to support the officer and the expert that it hired.
Peter Thorne asked if either any of the board members or the town’s zoning officer recorded the sound inside of the Duong and Nguyen property. Jon Piasecki told the dais that, out of The Foundry’s many events, very few trigger a complaint and the event center “may well be in violation because none of the other events cause trouble, only these few.”
The decision
Despite his eyeing the incorrect placement of the microphone used to detect noise from The Foundry, Gudmundson said the facts of the appeal don’t change and the sound level readings “are what they are.” He explained, “My interpretation of all of this is that, according to what the readings are that were presented for analysis, it’s hard for me to say that the sound levels that were measured that were created by The Foundry, not the wind, it’s hard for me to say those were over the [65c] limit to any significant extent.”
For ZBA member Robin Bankert, the data presented wasn’t sufficient to prove that a citation is warranted. Member James Clary said the board shouldn’t go against the town’s zoning officer, and he explained that the expert report prepared for the group helped his decision.
Member Jack Houghton said that, although Gudmundson’s observations put into question the validity of the audio readings, Duong and Nguyen didn’t meet their burden to show that The Foundry violated its special permit.
Pinkston said the case was one of the most complicated that he has reviewed, and the discomfort experienced by Duong and Nguyen during certain performances at The Foundry is “heartfelt”; however, he continued, “I feel that our zoning enforcement officer, given the information that he was given through the planning board regulation to enforce these limits, I am of the feeling that I need to support Brian [Duval] in these decisions.”
Member Joe Roy recused himself from deliberations.
“I feel that it’s a proper decision by the board, and I hope we don’t have to continue to go through this every time there’s an event at The Foundry,” Martin told The Berkshire Edge following the vote.
Greenwald said he and his client wouldn’t decide whether or not to appeal the board’s vote “so quickly.” He explained to The Edge, “We disagree with the decision, but we understand it as far as the confusion with the wind. But as far as the microphone placement, that’s appalling.”
Why the story doesn’t end here
The ZBA has until October 3 to file with the town clerk its final report reflecting the September 6 vote, including a record of the proceedings. Duong and Nguyen have 20 days after the filing to appeal the ZBA ruling.
But that’s not all.
Another appeal of Duval’s decisions regarding a recent complaint involving The Foundry and noise levels was received by the ZBA on Sept. 5. “No, I don’t expect this to end,” Pinkston said of the appeals process. “As Jack [Houghton] mentioned last time, this appears to be a work in progress, and, hopefully, the parties will return to the Planning Board to see how they can rewrite the conditions so that we’re not caught in the middle between something that the Planning Board, with their best intentions, attempted to lay out [as] equitable terms to protect both The Foundry and Truc [Nguyen]’s establishment.”
Stay tuned.
