West Stockbridge — Following a continuation of its July 18 hearing on the matter, the West Stockbridge Zoning Board of Appeals unanimously sustained an appeal by an abutter to The Foundry, fining the event venue $300 for each of two violations of the sound provisions within the business’s special permit, for a total of $600.
A bit of history
The August 22 ruling was sparked by a complaint filed by Truc Nguyen, co-owner of Truc Orient Express, a restaurant at 1 Harris Street that borders The Foundry, at 2 Harris Street. The property also includes the home where Nguyen and her mother reside.
In her filing, Nguyen, along with her attorney Mitchell Greenwald, argued that the sound levels from those April performances—Lady Moon & The Eclipse on April 6 and Pocket Merchant band on April 12—exceeded the maximum decibels allowed at the property line by the venue. In its special permit granted in December, The Foundry is required to maintain sound-monitoring equipment that determines the level of noise emanating from the site at its property line. Representatives for both the venue and Nguyen stated that the outside placement of the microphone is at issue since the equipment picks up traffic and wind, noises that interfere with determining the level of sound directly related to the venue.
The town’s Zoning Enforcement Officer Brian Duval reviewed the audio recording logs of the events and initially wrote to Greenwald that, although the program “could be slightly heard in the background it was not enough to constitute a violation [of The Foundry’s special permit],” with the microphone picking up sounds from the nearby turnpike.
The ZBA hearing considered Greenwald’s May 29 appeal and his client’s request to overturn Duval’s decision as “contrary to the evidence.”
The abutter has previously filed numerous other complaints alleging that sound emanating from The Foundry has impacted her business and quality of life, with only one decision found in her favor.
Evidence presented
With board member Joe Roy recused but acting as administrative clerk to the session, the group’s deliberations focused on 15 exhibits including audio recordings, data, and a photo showing the placement of the sound monitoring microphone made by The Foundry, as well as data analysis and a July 19 report drafted by Nguyen’s consultant, Jeffrey Komrower, USA Noise Control LLC. The Komrower report provided compelling testimony that very little evidence of wind and traffic noise was detected on the tapes of the performances in question. That report can be found here.
“For the 4/6 and 4/12 recordings, during times of music audibility, the absence of high background noise allowed the determination that the music was the controlling source of the measured noise levels,” the Komrower report stated.
Town counsel weighed in on some of the issues before the board, resulting in the group reopening the comment portion of the hearing. “We believe there were exceedances on both the [April] sixth and the 12th,” Greenwald said, relying on the Komrower report.
However, the most glaring piece of evidence produced during the hearing came from an August 19 email from Duval and drafted in the time between the two hearings. In the document, the officer, who didn’t appear at the hearing, stated he was reversing his course regarding an initial finding of no violation. “I have reviewed the sound report that was submitted at the last appeal hearing and found it to be credible,” Duval stated in the email addressed to the Board of Appeals. “Therefore I will be issuing the Foundry a violation letter and a citation for both performances. (4/6, 4/12). This should resolve this matter.”
Greenwald suggested that, based on this evidence, the board should find violations occurred and reverse Duval’s opinion. He urged the group to impose the maximum fine allowable on The Foundry of $300 per violation and order Duval to issue the violations.
Nguyen approached the dais, admonishing Duval for listening to the audio without looking at the Excel data, and noted the legal fees and expert expenses she has incurred in the process.
“And now because there’s an expert that weighed in, he’s changed his mind,” she said. “The last few times that we have done this dance, meaning my family and this board, you’ve left it up to the building inspector, at his discretion, to do his [findings] or follow up. Clearly, he’s no,t so there has to be some sort of direction from this board in a more concrete way, where there is accountability.”
Advocating for “fairness” for her family, Nguyen pushed for a fine if The Foundry is charged with a violation.
Foundry attorney William Martin told the board that the conditions his client has been asked to enforce “are unenforceable,” calling the special permit sound-monitoring requirements “a garbled mess.”
The Zoning Board decision comes on the heels of an anticipated ruling by the town’s Planning Board next month, amending The Foundry’s special permit to require the venue’s sound-monitoring microphone be placed inside the building to avoid any conflict recording traffic or wind noise. The measure followed a Planning Board site visit with a third-party expert to determine what decibel levels measured indoors would equate to the sound requirements of the special permit that mandated an outdoor noise calculation at the property line. Martin said he was hopeful the new special permit requirements would obviate the need for such Zoning Board hearings and advocated that an expert relied upon in the hearing review should be a third-party town consultant as opposed to Komrower who was hired by Nguyen.
“My suggestion for this [is] let the thing go to the Planning Board, get yourself a new condition that makes sense and reset the clock,” he said, asking the Zoning Board to deny the application because a reasonable standard of proof can’t be met.
However, Greenwald countered that the Planning Board’s actions aren’t related to the case before the Zoning Board and the April recordings were “clean” per Nguyen’s expert. “It shouldn’t really change what’s going on here,” he said.
Alternate Member Gunnar Gudmundson, who is an engineer, said he analyzed the Excel data and audio logs from the case, reviewing the materials and finding exceedances totaling much more than two minutes for both performances.
“If you go there and listen to it, it’s really obvious that what you’re hearing is very loud music and drums,” he said of the April 6 performance.
The Foundry’s special permit provisions require exceedances not tally more than two minutes during a performance.
“If you listen to it, you’d be hard pressed to say that it’s not music that’s making the sound,” Gudmundson said of the April 6 performance, making a similar comment regarding the April 12 performance.
Other Zoning Board members said the data finding the special permit violations was supported by numerous sides and cited the need for Duval to provide a more professional response to such complaints. Although past cases involving The Foundry brought before the Zoning Board have been unenforceable, the “clean” nature of the recordings in the April 6 and 12 performances provided a clear path to enforcement of the special permit and its sound restrictions, member Robin Bankert said.
“This hearing and the evidence we heard for these violations were, at least in my mind, different from what we’ve heard in the past, especially where we had our expert concluding or opining that the recordings were poisoned somewhat by other extraneous noises,” Vice Chair Jack Houghton said. “This one sounded more clear to me.”
