[EDITOR’S NOTE: This article has been clarified from the original text to define what attorney Mitchell Greenwald defined as “a travesty.”]
West Stockbridge — Almost four months to the day of its first West Stockbridge Planning Board hearing, The Foundry, 2 Harris Street, finally has its answer to a requested modification of its noise-monitoring requirements, a special permit provision that has long plagued town officials, the venue owner, and abutters over the troublesome enforceability of its sound standards.
On September 17, 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.
The long and winding road to The Foundry’s special permit amendment
According to The Foundry’s December 5, 2022, special permit, the venue was required to monitor the sound emanating from its facility, allowing a maximum of 60 A-weighted decibels (dbA), or higher-frequency sounds, and 65 C-weighted decibels (dbC), or lower-frequency sounds, at the property line as measured by extensive equipment at Foundry owner Amy Brentano’s expense.
Earlier this year, Brentano, along with her attorney William Martin, requested a ruling that all sound-monitoring requirements be dropped, reasoning that the burdensome provisions were unnecessary since 12 of the 13 excessive noise complaints against The Foundry filed by Truc Nguyen and Trai Thi Duong—proprietors of the abutting restaurant Truc Orient Express who also live above their establishment—were determined at the time to not be in violation of the venue’s special permit. On August 22, the Zoning Board of Appeals decided in favor of Nguyen and Duong, sustaining their appeal of Zoning Enforcement Officer Brian Duval’s finding that no noise violations occurred for two April events and fining the venue $300 for each of violation.
During the months of hearings, Duval told the Planning Board that the special permit’s requirement to monitor The Foundry’s sound at its perimeter is made difficult by exterior noises, including highway traffic and wind, that interfere with determining the true sounds produced by the venue. Brentano later amended her request, moving toward a measure to instead modify the monitoring process and set an indoor sound limit that would remove the ambient sounds found on prior recordings from the process.
The relevant Planning Board sessions included a July 10 site visit to The Foundry, during which a sound test was conducted by third-party consultant Herbert L. Singleton Jr., president of Cross Spectrum Acoustics Inc. Singleton monitored the difference in sound decibels produced inside the venue and detected outside the venue, or through its walls. Per his July 29 report, he determined that an inside sound level of 104 dbA and 93 dbC will produce sound levels at the perimeter property line of 60 dbA and 65 dbC, respectively, the upper limits of allowable noise that can be generated by the venue pursuant to its special permit.
On August 12, Martin unveiled proposed changes to the special permit, incorporating Singleton’s July 29 report.
Planning Board decision highlights
Following some discussion on the Martin proposal, The Foundry’s special permit was amended to reflect that sound monitoring would be conducted inside, with the microphone hanging approximately four feet above the tech table. The maximum sound levels, under the new indoor parameters, cannot exceed 104 dbA and 93 dbC for The Foundry to be in compliance with its special permit. Bursts above the new threshold are permitted for stints of five minutes, with no more than 10 minutes of sound during a performance, allowing for the added sound coming from a standing ovation.
Additionally, if an alleged violation is noticed, the zoning enforcement officer will have the discretion to review the written measurements by a written summary, excel spreadsheet summary, or another format the officer requests, as well as the raw data.
Although live music is allowed at the patio bar, amplification isn’t permitted and such live performances are limited to Thursday, Friday, and Saturday, ending by 9 p.m.
Finally, monitoring is only required for events with amplification or standing string bass and/or drums, with Brentano voicing concern over this provision. “If we have a classical concert that is not amplified, we have to record [monitoring sound] because a standing string bass will carry more than 65 dbC at our property line seems absurd,” she said. Board member Andrew Fudge said the measurement isn’t taken outside anymore, to which Brentano clarified that the recording inside equates to 65 dbC at the property line, the measurement specified in the December 2022 special permit.
“Still, the regulation is what can be at the property line,” she said, adding that indoor measurement will meet the property line standard set out in the original special permit. “To say that a string instrument is going to create higher than 65 decibels C, I’ve never heard of such a thing in my life.”
Nguyen argued that monitoring should be the standard for performances, with the corresponding data made available. “How do we know that [a performance] is not going to be amplified because if it is and it’s not recorded, then we don’t have any recourse to protect ourselves,” she said.
Her attorney, Mitchell Greenwald, noted a difference of opinion between his client’s consultant and Singleton over the sound-test process. In an email clarification to The Berkshire Edge, he denounced as “a travesty” the modification of Condition 5 of the special permit deleting sound monitoring requirements during the venue’s allowable four one-day outdoor events, requiring The Foundry to instead obtain an entertainment license to conduct those programs.
During the Planning Board’s July 29 meeting, Greenwald objected to the proposal, a measure he said would result in an entertainment license serving as a substitute for the protections of a special permit and abdicate the role of the Planning Board. “The problem is the complete deletion of any sound level limitation, with the only approval needed to be [a] Select Board Entertainment license,” he stated in the email. “As we observed a couple of meetings back when this first came up, this is indeed a travesty.”
“We are disappointed but not surprised at the way this is going,” Greenwald said following the hearing.
For Brentano, the decision “is going to make it easier for the town to enforce the compliance from the business at 2 Harris Street.”
However, Nguyen said that the special permit’s monitoring provisions remain “very important” to her and plans to review the proceedings together with the Planning Board’s final statement. “To create layers of complexity on what’s being monitored and when it’s going to be monitored for the convenience of a business that is clearly creating harm to my family is not going to sit well with me or us,” she said following the decision.
The final Planning Board report is due within 14 days. Greenwald said that if he and his client disagree with the decision, they have the right to appeal the verdict in Land Court.
