West Stockbridge — After five contentious public hearings, which were spread over two months and totaled of almost 14 hours, the Planning Board approved a special permit application by The Foundry performance arts facility at 2 Harris Street on Monday, December 5.
The December 5 hearing was just as contentious as the previous hearings, with Foundry owner Amy Brentano and Truc Nguyen, co-owner of the neighboring restaurant Truc’s Orient Express at 3 Harris Street and whose family owns their residence nearby at 1 Harris Street, all getting angry at times against both the audience of over 60 residents and at the board during their testimony during the hearing.
The issues surrounding the special permit eventually all came down to the sound emitted from The Foundry building, including its measurement and how to control it from getting too loud.
Just as she did at the previous hearing, Chairperson Dana Bixby suspended public comments at the beginning of the hearing and distributed to board members and the audience a draft of the approval for the permit. “I have been advised by Town Counsel that there needs to be a functional method of monitoring compliance [with sound bylaws],” Bixby said. “I’ve initiated a relationship and discussion with a sound consultant that I’ve worked with in the past, John Klett, who is a professional sound engineer and is engaged in the business of monitoring sound, musical events, and venues.”
As part of the conditions for the special permit, which were eventually approved by the board, a sound monitoring protocol will be set up for The Foundry to monitor outdoor sound measurements at its Harris Street property line, monitoring both A and C-weighted scales for the duration of a performance. As stated at a previous hearing, C-weighted sound is of particular concern to board members because the measurement factors in bass sound frequencies are much more than A-weighted sound measurements. “There is a feature of this [measurement] where short bursts of sound of 30 seconds or less would not constitute a zoning violation,” Bixby said. “If the cumulative aggregation of sound goes under a period of two minutes, it’s not a zoning violation.”
Bixby said that the conditions for sound in the special permit approval are set at a decibel level lower than what Brentano requested. “I think there had to be some allowances that there was going to potentially be some sound spikes that happen [during music performances],” Building Inspector Brian Duval said. “There has to be some reasonable way to keep them to a minimum and there’s got to be some allowance for some reasonable control.”
According to the draft handed out by Bixby, the music inside the building would be no louder than 60 decibels for A-weighted sound, 65 decibels for C-weighted sound, and The Foundry would be allowed to have up to four non-concseutive one-day outdoor events on the green of The Foundry property with a maximum of 70 decibels of A-weighted sound and 65 decibels of C-weighted sound.
Planning Board member Gunnar Gudmundson said that before the board approved the permit, members should arrange for a site visit at The Foundry. “I think that for us to arrive at a meaningful [sound] threshold, I think we need to go down there to do an experiment and have the sounds reproduced at various levels, and at least let the five of us [Planning Board members] listen to it,” Gudmundson said. “We have someone from The Foundry start to play the music. We’ll start turning it up and listening to it. I’m hoping that would help us to firm up to use a 60- or 65-decibel threshold. I think we need to experience the air, environment, and sound.”
Gudmundson said that he previously made a site visit of his own and measured the sound outside with two sound meters, which included the sound frequencies emitted from traffic in the area. “The sound level down there is greatly influenced by the truck traffic,” Gudmundson said. “The other thing that surprised me is that both times [when I measured], it sounds pretty quiet. And you know any of you that have walked your dogs down there at night or walk down there, you think it’s quiet. But when you look at the sound level, it’s really not that quiet.”
He said that the sound levels came down to background noise in the area. “It can be really loud, but you don’t notice it because it’s in the background,” he said. “But if it’s music or somebody giving a speech, it sounds much louder [than the background noise]. You could perceive it as being a [stronger] sound, but it’s really the same decibel level. It’s really just the nature of the sound.”
When called to speak at the hearing, Brentano asked the board if a decision on the special permit would be delayed due to a potential site visit as requested by Gudmundson. When Bixby told Brentano that any board decision may be delayed until a site visit was completed, Brentano became angry. “I have been closed for five weeks and I really can’t be closed any longer,” Brentano said. “We have made every effort to comply. We have offered to purchase the [sound measuring] equipment and we agreed to the first proposal that you gave us last week. One person in the town is complaining about the sound.”
During the five public hearings, other residents complained about the sound levels emitted from The Foundry. However, when someone in the audience told Brentano that what she said was not true, she in turn insisted that Truc was the only resident complaining about the sound levels. “For what we offer this town, it sure feels like an awful lot of restrictions,” Brentano said.
Several members of the audience proceeded to hiss at Brentano after her comment. “Wow, I can see that the town does not want The Foundry here,” she said. “We have bent over backward to comply and appease the problems that one abutter is having with us. It is difficult for me to understand as a business owner in this town at this point what is weighted [sound] and what is not, and what is the definition of a detriment to adjacent use. I don’t mean to sound snarky, but forgive me for having to go through five hearings, trying to present our evidence, but not being presented with any evidence of harm. What is the harm? What is detriment?”
“We don’t even know what ambient sound really is, and that’s the problem,” Chairman Bixby told Brentano regarding sound measurement.
“We don’t, but is that my problem?” Brentano said in response. “It’s the town’s problem. The town does not have any zoning bylaws for sound. And to put this all on one business because one person has gone after us, and after us, and after us, and after us, non-stop. Every time we’re told you have to get this permit, [and then] you have to get this permit, we’ve done it, we have complied.”
Brentano then became emotional and pounded on the speaker’s podium when she said, “And there was no evidence that was given that we didn’t comply and/or try to at least comply with the very strict restriction of 60 decibels. So I have been reasonable, and reasonable, and reasonable, and I’m done being reasonable.” Brentano then proceeded to threaten to withdraw her special permit application and close The Foundry.
After Brentano spoke, Chairperson Bixby proceeded to reopen the public hearing to hear from property abutters. Resident Marjorie Powell read into the record a letter from Maggie Merelle, owner of Rouge Restaurant which shares a property line with The Foundry. In her letter, which was obtained by The Berkshire Edge, Merelle wrote, “The Foundry has been a bad neighbor from the start, especially when it comes to using things that are not theirs.” In her letter, Merelle claims that The Foundry “[u]sed parking spaces that were not theirs, including leaving a food truck and other vehicles in a lot intended for use by Rouge and [its] employees, illegally disposed of their trash in Rouge’s dumpster on multiple and repeated occasions,” and that “members of The Foundry staff further used that same area to take smoke breaks, again in a parking lot that was not theirs.” Merelle wrote that The Foundry did not do anything about her concerns “and continued to behave in this manner without change … Furthermore, The Foundry proceeded to close the Harris Street extension as if it was theirs, and theirs alone to use as they saw fit.” Merelle explained, “They did not seek the town’s permission or bother to consult, or even inform any of the pre-existing abutters, including Truc. Truc, via her deeded rights from The Foundry’s predecessor-in-interest, had her business effectively closed as a result of this impermissible action.”
Merelle went on to write, “[I]n 2020 and 2021, The Foundry utilized this newly privatized space for their own enrichment and presented live outdoor music concerts on their Green. The noise from these was so loud inside the Rogue dining rooms that our patrons could not hear the restaurant’s music system. At times, it was so extreme that a patron asked whether there was a football game going on next door. This forced the closure of Rogue’s rear bistro room.”
Merelle added in her letter that “despite [their] complaints to The Foundry, it did nothing about this noise,” and that “while not the sole reason, The Foundry’s ongoing behavior, and rancorous posturing to continue without care or concern for its neighbors and the residents of West Stockbridge, was a contributing factor in my deciding to sell Rouge.”
In an interview after the hearing, Brentano denied Merelle’s claims and would not specifically address any of the allegations Merelle made in her letter.
The next person to speak, Nguyen’s attorney, Mitch Greenwald of Pittsfield, alleged that the board was holding email discussions about the special permit outside of the public hearings. In relation to this, on Tuesday, December 6, The Berkshire Edge submitted to the town a state public records request for any and all emails containing deliberations and communications between members of the Planning Board pertaining to The Foundry’s special permit application.
As he did at the previous hearings, Greenwald objected to the Planning Board granting The Foundry its special permit. “I don’t think there’s any doubt that the detriment has been demonstrated,” Greenwald said. “I know that the considerations [by the board] are intended to alleviate that detriment, but there can’t be any doubt that there is detriment. [When it comes to] the difficulty in understanding detriment, it’s very clear that there’s certainly no obligation in the bylaws or anywhere else that there be medically determinable harm. This is not an application for disability benefits, it’s not a tort case, and detriment is in the dictionary. It’s easily understood, and it’s up to this board to determine what detriment is. I don’t think there’s any doubt the detriment has been demonstrated.”
In response, Brentano’s attorney, Jeffrey Scrimo from Lenox, said, “[T]his is a commercial district and detriment has to be viewed through the lens of the district.” Scrimo explained, “There is no definite definition of what ‘detriment’ is, but it’s certainly something more than ‘I don’t like it’ … You as a board have taken the specific step to address the complaint of detriment. It will deal with it and that is what will address that detriment.”
Nguyen was the next to speak at the hearing and emphasized that she is dealing with issues of sound from The Foundry that are impacting her business and her residence. “There are two issues, it’s not just one abutter in terms of one entity,” Nguyen said. “It’s a business and a home. What I am having a very hard time accepting is specific levels of noise that are weighted, whatever way you want to weigh it, that is traveling into my home. My house, my bedroom is where I lay my head, and upstairs where my mom lays her head.”
Nguyen said that she took offense to one of the conditions that allowed for music from up to 10 p.m. from The Foundry. “When do we sleep? When do we get to have our rightful peace and quiet in our home?” Nguyen said. “It is unfortunate that a business moved in and has decided to do the type of programming that it has done without maybe not fully understanding the nature of the existing family and its business [next door] that has been there for 45 years. And a lot of people say ‘they shouldn’t have lived there. They shouldn’t have bought their house there, they should move to Long Pond Road and they should move into the mountains.’ Well, F.U. because you know what? We’re stupid immigrants. And that was where we got to live.”
Bixby then used her meeting gavel to stop Nguyen. “You know, I use the F word just as much as any [one of] us, but let’s try not to,” Bixby said.
Nguyen proceeded to apologize and continued speaking. “Don’t tell me what we should have done to prevent these three years of harm to us,” Nguyen said. “We moved here and it was an opportunity that we seized during the time. We did not harm anybody, we did not impose on anybody, we kept our heads down, we worked hard, and we contributed to this community tenfold in the 45 years that we’ve been here. Detriment for me is not a feeling. Well, yes, it is. I am feeling bass, amplified bass, and drums through my home, through my body. We don’t want to shut anybody down, but you all will fight just as hard to protect your family and your business that you have fought for and established. We came to this country with nothing, [only with] two bare hands. What we have we’re going to fight for, because you know why this country affords me the same rights as all of you. All of you. I have the right to peaceful enjoyment of my home, just as anybody else.”
Eventually, over the objections of Attorney Greenwald, Chairperson Bixby closed the hearing. “I’m not obliged to hear everybody speak here tonight, I give standing to abutters and the applicants, so that is how I will run this meeting,” Bixby said to Greenwald. “We’re not going to hear from everybody under the sun here who wants to say something, including people from out of town.” Residents in the audience applauded Bixby’s comments.
The board eventually went on to approve the special permit for The Foundry, which includes conditions for sound, sound measuring protocols, and parking.
After the hearing, Brentano said that she is pleased that the board finally granted her special permit which will allow her to reopen. “I’m going to try to do my very best [to comply],” Brentano said. “A lot of people count on The Foundry as a safe space, and I feel an obligation to the members of the community that feel ownership. I don’t want to give up the programming, and I don’t want anyone to dictate our programming, which is why we are fiercely independent. But at the same time, we’ve been willing to compromise the whole time.”
In regards to the allegations raised by Nguyen, Brentano said, “I am a good neighbor … I’ve done a lot, and I could list them, but it’s just not where I’m going,” Brentano said. “I’m not going to do tit for tat. We support her and we support her business. We really hope that she opens because it is the reason we moved where we moved was to support all of the businesses in the town and to bring all of those people who are always hungry [to the restaurant].”
When asked if The Foundry could peacefully co-exist with Nguyen, Brentano said, “That’s up to my neighbor.” She continued, “I just want to keep going. I’m probably going to regret saying this, but I’m sorry that this moved into identity politics. It has nothing to do with that. And you can quote me on this, I’m Jewish, and both of my children are queer. I have an invested interest in preserving a safe space for any community that feels underheard, underserved, and not heard.”
Brentano added that she hopes to reopen The Foundry next month.
When asked for her comments after the hearing, Nguyen would not comment, but her attorney Greenwald said that they were both disappointed that the Planning Board approved the special permit. When asked whether or not they would appeal the Planning Board’s decision, Greenwald said, “Anything is possible and we need to consider our options.”
Click here to view documents presented at the December 5 public hearing in PDF format.
