MISC 15-000292

July 17, 2017

Berkshire, ss.



Pursuant to G. L. c. 40A, § 17, David Bloomgarden and seven others (Plaintiffs) [Note 1] brought this appeal from the grant of a special permit to Defendant Front Yard, LLC (Front Yard), by the Lenox Zoning Board of Appeals, whose members are Defendants (Lenox Board). The special permit relates to a historic estate property known as "Elm Court," which comprises land in the Towns of Lenox and Stockbridge. Front Yard proposes to renovate the structures on the property and add to them, creating a resort. The majority of the Elm Court property and all existing and proposed structures are located in Stockbridge, and Stockbridge has already issued a special permit approving structures for the resort use on that portion of the Elm Court property. No one appealed the issuance of the Stockbridge Special Permit.

However, since all of the frontage to the Elm Court property is in Lenox, Front Yard also needs a special permit from the Lenox Board. Front Yard applied for, and received, the special permit here under appeal, approving access to the proposed resort over the Lenox portion of the property. The Lenox portion of the property is located in an R1-A Residential Zoning District in which the use of property for a "resort" is allowed by special permit.

A one-day trial was held on August 16, 2016, in Berkshire County, and a site view was conducted on the same day immediately before trial. Twenty-nine exhibits were entered in evidence, including reports of various experts on behalf of Front Yard. Plaintiffs Thomas Sebestyen, Jane Bloomgarden, and Joseph Jackson (hereinafter referred to as Plaintiffs) testified on their own behalf. Brent White, a civil engineer; Lester Freeman, the general manager of Elm Court; and Adam Hawthorn, a manager of Amstar Group, LLC and employee of Travassa Experiential Resorts, testified for Front Yard. The Board did not call any witnesses. Based on an agreed statement of facts, stipulations, exhibits and the credible testimony introduced at trial, and the reasonable inferences drawn therefrom, all as informed by this court's view of the property and surrounding neighborhood, this court finds the following facts:

The Parties

1. Plaintiffs David Bloomgarden and Jane Bloomgarden (Bloomgardens) are individuals residing at 4 Stone Hill Road in Lenox, abutting the Elm Court property. Plaintiff Thomas A. Sebestyen (Sebestyen) is an individual residing at 261 Old Stockbridge Road in Lenox, across the public way from the Main House at Elm Court. The Bloomgardens and Mr. Sebestyen are statutory parties-in-interest under G. L. c. 40A, § 11.

2. Plaintiff Joseph A. Jackson (Jackson) is an individual residing at 66 Old Stockbridge Road in Lenox, approximately one mile from the Elm Court property, at the intersection of Old Stockbridge Road and Hawthorne Street. He is not a statutory party-in-interest. [Note 2]

3. Defendants Shawn Leary Considine, Clifford Snyder, Al Harper, Robert Fuster, Sr., and Robert Fuster, Jr. were, at the time of the decision under appeal, members of the Board.

4. Defendant Front Yard, LLC (Front Yard) is a corporation organized and existing under the laws of Delaware with a usual place of business in Denver, Colorado.

Elm Court Property

1. Elm Court is known as the "largest American Shingle Style home in the United States," and was originally built as a summer cottage by a member of the Vanderbilt family in the late 1800s. It was unused for many years during the late 1900s and early 2000s. Since that time, it has undergone various renovations and has been operated as an inn and occasional event space. Most recently, Elm Court has been closed intermittently and is undergoing renovations. When it was operating, Elm Court was the site of approximately twenty-five weddings per year. Approximately eighty percent of those events took place between April and October each year.

2. The Elm Court property comprises about ninety acres of land, all but three of which are located in Stockbridge. Its entire legal frontage is located in Lenox and is accessed throughout by a private way that extends from Old Stockbridge Road in Lenox. The frontage and entrance of the access way are located in a Residential (R-1A) Zoning District, as designated by the Lenox Zoning Bylaw (Bylaw).

3. In order to operate the proposed resort on the Elm Court property, a special permit from the Stockbridge zoning board for the use of the buildings and grounds was required and a special permit for access from Old Stockbridge Road in Lenox was required from the Lenox Board.

Stockbridge Special Permit

4. On September 8, 2014, the Stockbridge Board of Selectmen granted Front Yard a special permit (Stockbridge Special Permit) to operate the resort pursuant to the "Cottage Era Adaptive Reuse or Rehabilitation" provision of the Stockbridge Zoning Bylaws. That permit allows renovation of the existing Main House and an addition comprising ninety-six guest rooms and a spa facility. In total, the Elm Court resort project is approved to consist of 112 guest rooms. The Stockbridge Special Permit also authorizes the use of a portion of the renovated Main House as a new sixty-seat restaurant within the existing first floor.

5. At the hearing before the Stockbridge Board, and also at the time of trial, Front Yard had not determined what or how much outdoor space on the Elm Court property would be used for events, such as weddings, corporate and other social events. It had only ruled out using the three acres of property located within Lenox for such purposes. Front Yard also had not committed to a maximum number of guests permitted at an event on the property nor did Stockbridge set any maximum number of guests allowed in connection events authorized under the Stockbridge Special Permit.

6. The approved parking for the resort is depicted as a paved lot with 104 spaces, as shown as "Proposed Parking Area D" on the Overall Site Plan, Sheet 2 of 10. [Note 3] No additional parking has been identified by Front Yard, but in the event additional parking spaces are needed to accommodate guests of a special event, Front Yard plans to identify space on the grounds of the Stockbridge portion of the property for overflow parking and, if necessary, secure off-site parking lot and use a shuttle service to transfer guests.

7. The proposed spa will consist of 18,468 square feet of space, with 11,821 square feet devoted to spa facilities (as distinguished from space for fitness activities.) The operational plan for the spa had not yet been completed at the time of trial, but Front Yard projects that the majority of people (ninety-five percent) utilizing the spa will be overnight guests of Elm Court.

8. Plaintiffs did not appeal the grant of the Stockbridge Special Permit, nor did any other person appeal.

Lenox Special Permit

9. After securing the Stockbridge Special Permit, on December 29, 2014, Front Yard filed an application with the Lenox Board for a special permit pursuant to Sections 3.1.C.7, and 9.4, of the Bylaw to "permit access to a Cottage Era Estate Resort at Elm Court in Stockbridge, MA, all as permitted by a Special Permit granted by the Stockbridge Board of Selectmen dated September 10, 2014[.]"

10. Section 3.1.C.7, under the Table of Uses of the Bylaw, and Section 3.1.2, provide a "resort" use may be permitted in an R-1A Zoning District "as a special permit only if the Board of Appeals so determines and grants a special permit therefore as provided in Section 9.4 of this Bylaw subject to such restrictions as are set forth elsewhere in this Bylaw, and such restrictions as said Board may establish." Section 9.4 of the Bylaw sets forth the procedure and criteria for obtaining special permits.

11. Following a duly noticed public hearing conducted over five nights, the Board issued a special permit on July 14, 2015 (Lenox Special Permit), subject to twenty-seven new conditions and subject also (by incorporation) to all of the conditions imposed under the Stockbridge Special Permit, a copy of which was appended to the Lenox Special Permit Decision. The conditions set forth below are the ones about which evidence at trial was presented to inform the court's determination of two questions: a) whether Plaintiffs have standing to appeal the decision of the Lenox Board, and b) whether the grant of the special permit was legally untenable and beyond the authority of the Lenox Board.

a. Conditions 2 and 3 require Front Yard to conduct a "post-occupancy traffic analysis during the summer season within two years of the completion of construction or the public opening, whichever event occurs first." Condition 2 outlines the data the analysis should include, and requires that Front Yard bear the cost of the analysis, as well as the cost of any "peer review" should the Town request it. Condition 3 lists the data that the post-occupancy traffic analysis must include and outlines how Front Yard will pay for certain traffic mitigation measures if needed.

b. Under Condition 7, Front Yard "shall reimburse the cost of the construction of a sidewalk between the [northernmost] curb cut of the Elm Court property and Hawthorne Street, as approved by the Lenox Department of Public Works, in conjunction with the Board of Selectmen's approval."

c. Further, under Condition 14, if a sidewalk is desired by the Board of Selectmen, "a performance bond acceptable to Town Counsel will also be posted by the applicant for the sidewalk project."

d. Condition 15 limits applicant to "holding no more than three (3) outdoor events per week on the property. There shall be no outdoor events on any of the property within the Town of Lenox."

e. Condition 16 states that Front Yard shall take "reasonable steps to mitigate the blowing of snow onto Old Stockbridge Road."

f. Condition 19 limits the types of outdoor activities that may be conducted on the property and imposes a curfew of 10:00 PM on activities with outdoor noise.

g. Condition 21 requires that outdoor lighting be equipped with lamp shields and other restrictions ensuring lighting is confined within the boundaries of the property.

h. Condition 25 states that Front Yard agrees to two "fully noticed reviews of the conditions in order to evaluate the effects of the resort's operation on the neighborhood, and to consider amendments to specific conditions of the special permit. The applicant will notify the [Town] and the [Board] when it has opened. It will return for a review within two (2) years from the opening date, and will return for a second review four (4) years after the date of opening."

i. Condition 26 outlines the scope of the two and four year reviews referenced in Condition 25, as applied to Conditions 15, 16, 19, 20, and 21.

Lenox Bylaw – Relevant Provisions Put in Issue by Plaintiffs' Challenge to the Special Permit

12. Section 4.1.4 of the Bylaw is titled "Land Split by Town Line," and provides: "[w]hen a lot is situated in part [in Lenox] and in part in the adjacent municipality, the provisions of this [Bylaw] shall be applied to the portion of such lot in Lenox in the same manner as if the entire lot were situated in Lenox."

13. Section 4.1.1 of the Bylaw sets forth a "Table of Dimensional Requirements," which provides, among other things, that a building or structure in an R-1A district may have a maximum height of thirty-five feet, or two stories.

14. Section 10 of the Bylaw, "Definitions," defines "resort" as a "building or group of buildings, a portion thereof designed for serving food in a public dining room and containing 15 or more sleeping rooms for transient guests together with both indoor and outdoor recreational facilities with a variety of activities provided which could be judged self-sufficient for the entertainment of the guests herein."

15. "Personal service establishment" is defined as "[a] facility providing personal services such as hair salon, barber shop, tanning beds, dry cleaning, print shop, photography studio, tailor shop, shoe repair, laundry, self-service dry cleaning or pick-up agency, in every case an all indoor operation."

16. Bylaw Section 5.1.5, titled "Required Spaces," provides: "[u]ses shall provide parking spaces in accordance with the following table. Where the computation of required parking spaces results in a fractional number, only the fraction of one-half (1/2) or more shall be counted as one (1)." Table 5.1.5, titled "Parking Space Quantity Requirements," provides in relevant part that motels and resorts shall have "1 space for each sleeping room, plus 2 spaces for employees, plus 1 space for each 250 square feet of floor space for public functions;" that retail and consumer services businesses shall have "1 space for each 300 square feet of gross floor area;" and restaurants and other places of assembly shall have "1 space for each three seats."

17. Bylaw Section 9.4.2 delineates the criteria for special permits: "[s]pecial permits shall be granted by the Special Permit Granting Authority, unless otherwise specified herein, only upon its written determination that the adverse effects of the proposed use will not outweigh its beneficial impacts to the town or the neighborhood, in view of the particular characteristics of the site, and of the proposal in relation to that site. In addition to any specific factors that may be set forth in this [Bylaw], the determination shall include consideration of each of the following:

1. Community needs served by the proposal; 2. Traffic flow and safety, including parking and loading; 3. Adequacy of utilities and other public services; 4. Neighborhood character and social structures; 5. Impacts on the natural environment; and 6. Potential economic and fiscal impact to the Town, including impact on town services, tax base, and employment."

Parking – Authorized by the Stockbridge Special Permit

18. Front Yard's proposed development at the Elm Court property includes paved, striped parking spaces for 104 vehicles. The Bloomgardens' house is located approximately 500 feet from the closest edge of the proposed parking lot– shown as "Proposed Parking Area D" on the Overall Site Plan, Sheet 2 of 10. [Note 4]


19. On occasions when Elm Court has hosted wedding events, Mr. Sebestyen sometimes heard at his property noise caused by tent set-up, music, crowd noise, and fireworks. If windows were open in his home, he could hear this noise inside his home. Otherwise, he heard the noise while outside on his property.

20. During wedding events at Elm Court, Mrs. Bloomgarden heard crowd noise, the public address announcements from the wedding reception, and fireworks.


21. The Site Plans, presented to the Board as part of Front Yard's application, and submitted at trial, include a plan titled "LED Lighting Layout Plan." This plan, together with the credible testimony of Brant White, establishes that the maximum proposed light footprint, per light, will not exceed more than eighteen feet. Additionally, each proposed light fixture will include a shield, forcing the light to shine directly down beneath the fixture, as opposed to the sides, and hiding the light bulb itself from neighboring properties.

22. The proposed landscaping for the project includes the planting of trees and arborvitae to screen the Bloomgarden property from both light (including that from vehicles) from and view of Parking Area D. Specifically, Front Yard plans for three distinct rows of vegetation.

a. The first two rows, which will be closest to the Bloomgarden residence, will consist of twelve-foot tall Norway spruce or hemlock trees.

b. The third row, which will be closest to the parking surface of Parking Area D, will consist of three to four-foot tall arborvitae, and provide additional shielding of light emanating from car headlights that may be directed toward the Bloomgarden property.

23. The parties submitted the following stipulation (Stipulation):

"With the exception of matters relevant to the legal issues raised by Plaintiffs in Section I.A of the parties' Joint Pretrial Conference Memorandum, the parties stipulated that this appeal does not contest the Board's determination of facts and the Board's findings regarding each criteria under Section 9.4.2 of the [Bylaw] that the Board was required to consider and apply in granting the Lenox Special Permit. Therefore, with the exception of the facts and findings relevant to the legal issues raised by Plaintiffs in Section I.A, the parties stipulate that the facts found in the Board's Decision have been established for purposes of trial and the findings related to each of the special permit criteria (set forth below) are sufficient for issuance of the [Lenox] Special Permit with respect to those issues (italics added): [Note 5]

a. Community needs would be served by the proposed use as conditioned;

b. Traffic flow and safety, including parking and loading, are adequate and will not be detrimentally affected by the proposed use as conditioned;

c. Utilities and other public services are adequately met or served by the proposed use as conditioned;

d. Neighborhood character and social structures will not be detrimentally affected by the proposed use as conditioned;

e. There will not be any adverse impacts on the natural environment as conditioned; and

f. There is a positive potential economic and fiscal impact to the Town, including impact on services, tax base and employment, as a result of the proposed use as conditioned.

Sebestyen and Jackson's Claims of Aggrievement Based on Traffic

24. Sebestyen's neighborhood is generally quiet, with interruptions of "an hour of pretty solid traffic" on Old Stockbridge Road following events held at Tanglewood during the summer. His driveway is located on the east side of Old Stockbridge Road, approximately 200 feet south of the main entrance to Elm Court, at the top of a hill that dips in both directions. He currently finds it challenging to enter and exit his driveway due to its topography, as the dips in the road obscure the view of oncoming traffic.

25. Mr. Jackson's driveway exits onto Old Stockbridge Road just south of Hawthorne Street. His home lies at the bottom of a hill at the corner of Hawthorne Street and Old Stockbridge Road. Mr. Jackson takes extra care when entering and exiting his driveway because he sees people drive down the hill heading south very quickly, and he cannot see drivers heading north due to the topography of the road (there is a dip to the south of his driveway).

26. Fuss & O'Neill prepared a two-volume traffic study report, dated November 10, 2014, titled "Traffic Study Reports Elm Court Estate Special Permit Application Stockbridge and Lenox," for Amstar Group, LLC (Traffic Study) in connection with Front Yard's special permit application. Volume I of the Traffic Study Report is titled "Narrative, Tables and Figures." Volume II of the Traffic Study Report is titled "Intersection Capacity Analysis Worksheets."

a. The Traffic Study contains reports and memoranda dated from April 28, 2014, to September 8, 2014.

b. The Traffic Study generated estimates of traffic that would be created by the proposed project for peak traffic hour periods, i.e. the typical high period of traffic use on Old Stockbridge Road, and high occupancy use of the site facilities on a weekday and Saturday period during the summer season.

c. The Traffic Study also contained an analysis of whether there were adequate intersection and stopping sight distances at Elm Court's driveways. This analysis intended to determine whether vehicles could safely turn in and out of the Elm Court driveway on Old Stockbridge Road and whether there was an adequate distance at which vehicles were visible when attempting a turn, concluding in the affirmative.

27. After the Traffic Study was submitted to the Board, the Town hired BETA Group, Inc. (BETA) to perform a peer review (BETA Study). Fuss & O'Neill engaged in considerable back-and-forth with Front Yard in order to respond to the BETA Study and address the comments raised within that study. [Note 6]

28. Fuss & O'Neill issued a supplemental memorandum on November 18, 2015, "to address a condition in the [Decision . . . .]." In summary, the memorandum concluded:

"[i]f the [Automatic Traffic Recorder or ATR] speed measurements are used to assess the sigh distance adequacy at the Elm Court driveway, there is no change in the conclusion of the traffic study submitted for the project with regard to having enough sight distance there is no change in the conclusion of the traffic study submitted for the project with regard to having enough sight distance for safe operation in and out of the site driveway on Old Stockbridge Rd. The 85th percentile speeds by direction on Old Stockbridge Rd. were applied for calculating the Stopping Sight Distance (SSD), and the Intersection Sight Distance (ISD). These calculations indicate that the measured available sight distance is greater than the calculated minimum or desired recommended distance for safe vehicle operation."

29. The Traffic Study concluded the sight distances at Elm Court's driveway entrance were adequate. See Table 5.1 of Exhibit 14.

Proposed Sidewalk, As It Affects Mr. Jackson's Standing

30. The proposed sidewalk would run on the west side of Old Stockbridge Road, extending from the Elm Court entrance north to the existing sidewalk on Hawthorne Street.

31. There is adequate space within the layout of Old Stockbridge Road to construct the proposed sidewalk without requiring a taking of any portion of Mr. Jackson's property. The trees located along Mr. Jackson's frontage likely would have to come down to install the sidewalk. While these trees serve as a divider between his home and Old Stockbridge Road, they are located on land owned by the Town and within the Old Stockbridge right of way.

Discussion and Further Findings and Rulings

I. Plaintiffs' Standing [Note 7]

Only "persons aggrieved" by a decision of the special permit granting authority – in this case, the Zoning Board of Appeals of the Town of Lenox – have standing to seek judicial review of a decision under G. L. c. 40A, § 17. 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012); Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). Without an aggrieved plaintiff, the court cannot reach the merits presented in an appeal. Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005). If multiple plaintiffs are involved, only one needs to be a "person aggrieved" in order to establish the court's jurisdiction to hear the appeal. Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. 619 , 620 (1993); Murray v. Bd. of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476, n.7 (1986).

"Parties in interest" under G. L. c. 40A, § 11 enjoy a rebuttable presumption of standing. [Note 8] The parties agree that, as statutory abutters, the Bloomgardens and Mr. Sebestyen are parties-in-interest. A defendant can rebut the presumption by demonstrating that, as a matter of law, the alleged aggrievement is not an interest protected under the Zoning Act or, alternatively, by presenting credible evidence to warrant a finding contrary to the presumed fact. Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 35–36 (2006). Legal arguments and allegations are insufficient to rebut the presumption of standing. See Watros v. Greater Lynn Mental Health and Retardation Ass'n, Inc., 421 Mass. 106 , 111 (1995) (stating the presumption recedes when a defendant offers evidence to support his challenge to standing); Valcourt v. Zoning Bd. of Appeals of Swansea, 48 Mass. App. Ct. 124 , 128 (1998) (stating that a defendant cannot simply "raise" the issue of standing but must support the challenged with evidence). A defendant may, however, rely on the plaintiff's lack of evidence, obtained through discovery or elicited through deposition or trial testimony, to rebut a claimed basis of standing. Standerwick, 447 Mass. at 35 (and cases cited). If a defendant fails to rebut the plaintiff's presumptive standing, the plaintiff "is deemed to have standing and the case proceeds on the merits." 81 Spooner Rd., LLC, 461 Mass. at 701.

If a defendant succeeds in rebutting the plaintiff's presumed standing, the presumption recedes and the plaintiff must "prove standing by putting forth credible evidence to substantiate the allegations" 81 Spooner Rd., LLC, 461 Mass at 700. In that event, a plaintiff must provide "direct facts" and not "speculative personal opinion" that the alleged aggrievement is "special and different" from general community concerns. Standerwick, 447 Mass. at 33. The alleged aggrievement must also constitute more than a minimal or slightly appreciable harm: "the analysis is whether the plaintiffs have put forth credible evidence to show that they will be injured or harmed by proposed changes to an abutting property, not whether they simply will be 'impacted' by such changes." Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 122 (2011). Credible evidence requires both qualitative elements, with "specific factual support" provided for each of the alleged particularized aggrievements, and qualitative elements, requiring evidence to be that upon which a reasonable person could rely to conclude a claimed injury likely will result from a board's decision. Butler, 63 Mass. App. Ct. at 441. Plaintiff must offer more than speculative facts.

The Bloomgardens and Mr. Sebestyen complain of harm due to noise and light pollution, and the Bloomgardens also complain of air pollution due to proximity of the parking area to their house. Both Mr. Sebeysten and Mr. Jackson complain of harm from increased traffic. Mr. Jackson also claims he is aggrieved by the proposed installation of a sidewalk between the "[northernmost] curb cut of the Elm Court property and Hawthorne Street, as approved by the Lenox Department of Public Works, in conjunction with [the] Board of Selectmen." [Note 9] Front Yard argues all Plaintiffs lack standing and that, in the case of those Plaintiffs with presumptive standing, the Stipulation entered into by the parties effectively rebutted that presumption and Plaintiffs have failed to come forward with sufficient credible evidence. With respect to Mr. Jackson, this court agrees, but for the reasons discussed below, this court finds that Mr. Sebestyen and the Bloomgardens have established standing based on their concerns relating to noise. [Note 10] However, that finding does not carry over to the merits of this appeal. The court further finds, on the merits, that the Board's Decision granting a special permit to Front Yard for access to a resort use is not arbitrary and capricious and hereby is upheld, as set forth below.

a. Plaintiffs Bloomgarden and Sebestyen Established Standing Based On Alleged Aggrievements Due To Noise

Plaintiffs claim that loud noise from guests, music, announcements, and fireworks, usually in conjunction with weddings or other outdoor events, have in the past bothered them and will increase and interfere with the quiet enjoyment of their properties. Plaintiffs also argue there will be additional noise from increased traffic entering and exiting the site. Front Yard argues that noise is not an interest protected under the Lenox Bylaw and, as such, cannot confer standing. See Kenner, 459 Mass. at 120. Front Yard further argues the increased noise alleged by Plaintiffs will result not from the access approved under the Lenox Special Permit but from the resort use itself, approved by the Town of Stockbridge, and not appealed by any of the Plaintiffs.

The court finds that the Lenox Bylaw does protect freedom from excessive noise as an interest under the Bylaw. The Bylaw's stated purpose is to "promote the general welfare of [Lenox], to protect the health and safety of its inhabitants, to encourage the most appropriate use of land throughout the town, and to increase the amenities of the town, all as authorized by, but not limited by, the provisions of the Zoning Act[.]" Noise may be viewed as a factor affecting the general welfare, health and safety of Lenox and its inhabitants, including Plaintiffs. In fact, the Board addressed concerns regarding noise by setting specific decibel limits on outdoor noise and prohibiting all amplification outdoors, or any noise after ten o'clock at night.

Mr. Sebestyen and Mrs. Bloomgarden both testified as to the alleged harmful impact of noise generated by events held in the past at Elm Court, particularly at wedding receptions. Mrs. Bloomgarden heard loud noises from guests, music, announcements and fireworks. One instance involving fireworks was sufficiently disruptive to her that she called the police. Although cross examination of Mrs. Bloomgarden elicited testimony illustrating a discrepancy between the frequency of events held at Elm Court as she remembered them, and the actual number of events held, both she and Mr. Sebstyen credibly testified that at least some events caused a disturbance due to noise. Given their testimony and the lack of expert testimony by Front Yard, this evidence is sufficient for the court to find that Front Yard did not rebut Plaintiffs' presumptive standing based on harm from noise.

Front Yard notes that Plaintiffs produced no expert testimony or acoustic analysis. With two plaintiffs having presumptive standing generally, Front Yard carried the burden of rebutting that presumption regarding aggrievement by noise through cross examination of Plaintiffs, or submission of evidence. While it is a close call, this court concluded that the presumption with respect to noise was not adequately rebutted, for the purposes of negating standing based on noise. However, as with traffic issues, a finding of standing in favor of these Plaintiffs based on credible evidence of noise does not mean that the Board erred in finding that noise mitigation was adequately dealt with by the imposition of conditions. To the contrary, the Board imposed several conditions in its decision regarding outdoor events and the maximum decibel level for any outdoor activity, measured at the property lines. It also imposed conditions which provide for periodic review of noise emanating from Elm Court as well as automatic monetary penalties for violation of the various noise related conditions. [Note 11]

b. Plaintiffs Do Not Have Standing Based on an Aggrievement From Increased Light and Air Pollution

Section 5.3.1 of the Bylaw requires that all lighting conform to certain standards and that "[a]ny private outdoor lighting fixture newly installed or replaced shall be shielded at the source so as not to produce a strong direct light beyond the property boundaries." To support their contention that the proposed project will increase the light and air pollution affecting their properties, Plaintiffs offered their speculative testimony. Front Yard, however, produced ample credible evidence of the measures proposed to mitigate light and air pollution. The site plans approved by the Board include a "LED Lighting Layout Plan," demonstrating that all proposed lighting is designed with a light footprint that will be contained within the Elm Court property. The Board's Decision requires, as a condition for approval, that the project comply with its lighting obligations pursuant to Section 5.3, including confining the light sources within a lamp shield. The evidence and testimony presented by Front Yard sufficiently rebutted Plaintiffs' presumption of standing as to light, and Plaintiffs' testimony, amounting to speculation and lacking expert opinion, failed to carry their burden of establishing standing "based on all the evidence with no benefit . . . from the presumption." Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1957).

Front Yard also sufficiently rebutted Plaintiffs' presumptive standing based on aggrievement from increased air pollution. Front Yard established that the closest plaintiff, Mr. Sebestyen, lives approximately 100 yards from the site entrance, across Old Stockbridge Road. The Bloomgardens are located approximately a half-mile from the entrance, but are located much closer to so-called "Parking Area D." Mrs. Bloomgarden testified generally as to the harmful air pollution they expected to emanate from Elm Court, referencing "exhaust" specifically, but more often than not, simply testifying as to their concerns over "air pollution," without further elaboration. [Note 12] As discussed above, Front Yard also committed to a several-tiered landscaping buffer to separate Parking Area D from the Bloomgardens' property, and the Bloomgarden residence is located approximately 500 feet from Parking Area D. Accordingly, Front Yard rebutted the presumptive standing of Mr. Sebestyen and the Bloomgardens, and, with the presumption gone, they failed to establish standing due to harm caused by air pollution with "direct facts," rather than "speculative personal opinion." 81 Spooner Rd., 461 Mass. at 700. [Note 13]

c. Plaintiffs Do Not Have Standing Based On Alleged Aggrievment Due to Increased Traffic

Claims of increased traffic have generally been recognized as sufficient to confer standing. Marashlian, 421 Mass. at 722. "The fear of increased traffic, however, must be an injury particular to the plaintiff . . . and not merely to the community at large." McKenney v. Zoning Bd. of Appeals of Westminster, 84 Mass. App. Ct. 1105 (2013), citing Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 682 (2002) (denying standing where plaintiff lived a mile from site and would merely be inconvenienced by increased traffic, not unlike other members of public). An increase of traffic on Old Stockbridge Road, directly caused by the project, would be enough to support Plaintiffs' standing, provided they prove it is particularized and different for Plaintiffs compared to the general community.

Only Mr. Sebestyen, whose property and driveway are directly across the street from Elm Court, introduced evidence which theoretically could have risen to the level of harm sufficient to establish standing based on traffic associated with the Lenox Special Permit. [Note 14] The location of Sebestyen's driveway is such that he is the only plaintiff and homeowner who stands to be specially harmed by a general increase in traffic resulting from the Elm Court development, as his driveway is located at the top of a hill that declines in both directions that currently presents visibility challenges. The increase in traffic projected in the Traffic Study of Front Yard's expert, while not substantial, might make Mr.Sebestyen's difficulties more acute.

In theory, if there are more cars projected to drive along Old Stockbridge Road, any increase in traffic may have an impact on an existing problem. Sebestyen also testified that people, presumably looking for Elm Court, occasionally turn around in his driveway if they drive past Elm Court's entrance, which is about 200 feet from his driveway. This court credits Mr. Sebestyen's percipient testimony, but finds it insufficient to confer standing as a matter of law. The Kenner case instructs that allegations of aggrievement must flow from more than minimal or slightly appreciable harm. It is not enough to establish simply an impact. Mr. Sebestyen's additional concern that people will park on Old Stockbridge Road while attending events is conjecture only and, most importantly, the Board considered that possibility and expressly conditioned its approval on a prohibition of such parking. Mr. Sebestyen's remedy if this condition is not followed, would be an enforcement action.

d. Mr. Jackson Failed To Establish Standing Based on the Installation of a Sidewalk along Old Stockbridge Road

Only Mr. Jackson, who does not enjoy a presumption of standing, alleges harm from the proposed sidewalk installation along Old Stockbridge Road, which is a public way. His house abuts the road and is located at the far end of the proposed sidewalk. He failed to demonstrate that the alleged harm resulting from the proposed sidewalk rises above generalized harm. Harm must be more than a matter of general public concern. Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989). Here, the proposed sidewalk will extend for a mile from Elm Court to the intersection at Hawthorne Street. Every property owner on the side of the public way where it is installed will be similarly affected. Additionally, any injury from the sidewalk is inherently questionable, as there is adequate space within the layout of the road to enable the Town to build a sidewalk without taking private property. [Note 15] The sidewalk has also not yet been officially designed or approved, as that responsibility lies within the Selectmen's purview, though the Lenox Special Permit obligates Front Yard to pay for its installation, if it is required by the Selectmen.

II. On the Merits, Front Yard Carried its Burden to Establish the Validity of the Special Permit Decision of the Lenox Board

An appeal of a decision of a local permit granting authority involves a "'peculiar combination of de novo and deferential analyses.'" Wendy's Old Fashioned Hamburgers of N.Y ., Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381 (2009), quoting Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 558 (1954). The court finds facts de novo, without giving weight to those found by the local board. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); Willard v. Bd. of Appeals of Orleans, 25 Mass. App. Ct. 15 , 24 (1987). The court then determines "whether the reasons given by the [board] had a substantial basis in fact, or were, on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purpose of the [Zoning Act]." Vazza Props., Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). The court gives deference to the board's decision and may only overturn it if it is "based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). Where the evidence supports any rational basis for the board's decision, the decision stands. MacGibbon, 356 Mass. at 639.

a. The Board Correctly Interpreted the "Split Lot" Provision of the Lenox Bylaw

Section 4.1.4 of the Bylaw provides:

"[w]hen a lot is situated in part in Lenox and in part in the adjacent municipality, the provisions of this By-law shall be applied to the portion of such lot in Lenox in the same manner as if the entire lot were situated in Lenox."

Plaintiffs argue that under this provision, any lot split by a Lenox town line must satisfy all of the requirements of the Lenox Bylaw, including dimensional requirements. Therefore, they claim the Board erred in failing to consider whether the proposed resort itself satisfied the applicable Lenox dimensional requirements which would have pertained had the existing buildings and proposed structures been located in Lenox. [Note 16]

Ordinary principles of statutory construction govern the interpretation of a bylaw. Shirley Wayside Ltd. P'ship v. Bd. of Appeals of Shirley, 461 Mass. 469 , 477 (2012), citing Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981). The language of Section 4.1.4 is unambiguous and clearly states that it is confined to the portion of a lot situated in Lenox. Plaintiffs allege the structure on Elm Court – the Main House – does not comply with the requirements of the Lenox Bylaw. This court finds and rules, as did, apparently, the Lenox Board, it does not need to comply because the Main House, and the addition to it, proposed as part of the Stockbridge Special Permit process, is situated in Stockbridge. The Stockbridge Special Permit authorizes the operation of a resort on the Elm Court property located in Stockbridge, including the addition of a ninety-six guest room wing and spa facility attached to the Main House.

The portion of the lot located in Lenox is in a Residential R1-A zone, in which resort uses are allowed by special permit, as they are in Stockbridge. No structures are proposed to be located in Lenox, and the Lenox application was for access only. "Use of land in one zoning district for an access road to another zoning district is prohibited where the road would provide access to uses that would themselves be barred if they had been located in the first zoning district. In such a situation, the access is considered to be in the same use as the parcel to which the access leads." Beale v. Planning Bd. of Rockland, 423 Mass. 690 , 697 (1996) (emphasis added.) The Board, therefore, was not unreasonable nor was it arbitrary and capricious in authorizing Front Yard the use of the frontage in Lenox to access a resort use allowed by special permit in both the Lenox and Stockbridge zoning districts which comprise the Elm Court property.

The fact that a resort use is allowed in both town districts in which Elm Court is located distinguishes this case from Town of Brookline v. Co-Ray Realty Co., 326 Mass. 206 (1950), on which Plaintiffs rely. In Co-Ray, a developer sought to build an apartment house on land in Boston, and use the portion of the lot extending into neighboring Brookline as a rear yard and service entrance. The Brookline portion of the lot was located in a single-family residential zone in which the proposed use of the apartment house was prohibited. The Supreme Judicial Court found that the proposed use of the land in a single-family residential district in Brookline as a service entrance for an apartment house located in Boston would violate the Brookline zoning bylaw.

b. The Board Properly Determined that Front Yard's Proposed Use is a "Resort" Allowed by Special Permit Under the Lenox Bylaw, and Not a "Personal Service Establishment," Even Though the Proposal Includes a Spa Within the Building Addition

Lenox Bylaw Section 6.6 allows resort uses in a Residential R1-A zoning district by special permit. Bylaw Section 10 defines a "resort" as:

"a [b]uilding or group of buildings, a portion thereof designed for serving food in a public dining room and containing 15 or more sleeping rooms for transient guests together with both indoor and outdoor recreational facilities with a variety of activities provided which could be judged self-sufficient for the entertainment of the guests therein."

Plaintiffs argue that, although the Lenox Bylaw allows "resort" uses in the R1-A district by special permit, it does not allow "personal service establishments," defined as "[f]acilities providing personal services such as hair salon, barber shop, tanning beds, dry cleaning, print shop, photography studio, tailor shop, shoe repair, laundry, self-service dry cleaning or pick-up agency, in every case an all indoor operation." Additionally, Plaintiffs argue that guests cannot use the spa without the help or support of resort employees and, therefore, a spa use does not fall under the "self-sufficient" recreational activities referenced in the Lenox Bylaw's definition of resort.

Front Yard, however, argues that Elm Court qualifies as a resort use because guests will not have to leave the property for entertainment. Instead, it will be self-sufficient in providing activities and entertainment and qualifies as a resort use. This court agrees with Front Yard's interpretation of the Bylaw provisions read in the context of the entire Bylaw. The Lenox Bylaw requires that the resort itself be self-sufficient. The fact that a spa may also fall within the definition of a "personal service establishment," when standing alone, does not preclude it from also serving as one of the "indoor and outdoor recreational activities" comprising a resort. Doing so may lead to an illogical result, as Front Yard points out: a resort by definition requires "recreational activities" and is allowed in a Residential R1-A zoning district, yet recreational facilities, operated as a private business, are not. See Table 3.1.C.2 of the Bylaw. A resort with any recreational facilities would thus be allowed by special permit yet also prohibited. Affording the Board appropriate deference, the court cannot find that it acted unreasonably in concluding that a spa may be, and is here, part of the definition of a resort and allowed in the Residential R1- A zoning district.

c. The Board properly did not require Front Yard to provide for parking, in addition to what had been prescribed by Stockbridge.

Plaintiffs allege the Board did not properly apply the parking requirements of the Lenox Bylaw to the proposed project. Under Bylaw Section 9.4.2, the Board must consider "traffic flow and safety, including parking and loading," when evaluating a special permit application. The applied-for authorized use under the Lenox Special Permit is access to a resort. This use does not require parking under the Bylaw, which provides in Section 5.1.1 for certain parking and loading space requirements for the construction or enlargement of a building or structure. Because Front Yard is not proposing to build a structure on the Lenox portion of the property, the Board was required only to make a finding regarding the adequacy of parking, which was part of the Stockbridge Special Permit decision. It did so.

d. The Conditions Attached to the Special Permit Are Not Improper Delegations of the Board's Authority

Plaintiffs assert that certain conditions to the Lenox Special Permit are unlawful. The Board imposed twenty-seven conditions on the proposed project, with various subparts. Plaintiffs take issue with the conditions requiring a post-occupancy traffic analysis; reimbursement for the construction of a sidewalk, should one be approved by the Board of Selectmen; and reviews of Front Yard's compliance with certain specified conditions after two and four years from the date of the project's opening. G. L. c. 40A, § 9 allows boards to impose conditions when granting a special permit. "A permit granting authority . . . may not delegate to another board, or reserve to another board, or reserve to itself a future decision, the determination of an issue of substance, i.e., one central to the matter before the permit granting authority." Tebo v. Bd. of Appeals of Shrewsbury, 22 Mass. App. Ct. 618 , 624 (1986); Weld v. Bd. of Appeals of Gloucester, 345 Mass. 376 , 378-379 (1963). Other boards, however, may review issues not central to the permit granting board's decision. Chambers v. Bldg. Inspector of Peabody, 40 Mass. App. Ct. 762 , 766 (1996).

i. Sidewalk

The Lenox Special Permit requires, in Condition 7, that Front Yard "shall reimburse the cost of a sidewalk between the [northernmost] curb cut of the Elm Court property and Hawthorne Street, as approved by the Lenox Department of Public Works, in conjunction with [the] Board of Selectmen's approval." Condition 14 also provides "[i]f the Board of Selectmen determines that a sidewalk from the [northernmost] curb cut of Elm Court to Hawthorne Street is desirable, a performance bond acceptable to Town Counsel will also be posted by the applicant for the sidewalk project." This is not an improper delegation by the Board. It issued the Lenox Special Permit authorizing access to Elm Court regardless of whether the sidewalk is required by the Selectmen and constructed. The approval required from the Department of Public Works and the Board of Selectmen is not a contingency on which the Lenox Special Permit rests. It only sets forth the procedure for paying for the sidewalk's construction.

ii. Two and Four-Year Reviews

The conditions requiring future reviews after two and four years have passed do not constitute the delegation of central issues by the Board. These reviews are limited to certain conditions set forth in the Special Permit Decision, and the scope of the review, the criteria to be applied, and repercussions to be taken in the event of violations are clearly and expressly set forth. For example, regarding the two and four year reviews of any impacts of outdoor events as set forth in Condition 15, the "scope of the reviews will be to identify the effect on the traffic levels of service along Old Stockbridge Road as a result of 'Outdoor Events.'" After each review, the Board will have the power to reduce the number of permitted Outdoor Events – currently set at three per week – should traffic levels reach certain thresholds.

The court finds that these reviews do not constitute an improper deferment of an "issue of substance" central to the Board's decision. The Board does not state that the issuance of the Lenox Special Permit is conditioned or reliant on certain thresholds being met at the two and four-year benchmarks. See Kiss v. Bd. of Appeals of Longmeadow, 371 Mass. 147 , 159 (1976) (stating that a board's action was not "merely an expression of an intent to issue the two special permits at some future date on the occurrence of some contingency"). Instead, the Board issued the special permit outright and outlined several mitigating steps or penalties that it may impose should the two and four-year reviews establish certain data points. This court finds that the Board's conditions were a reasonable check on future use and are not arbitrary.

iii. Post-Occupancy Traffic Study

Conditions 2 and 3 require that Front Yard conduct a post-occupancy traffic study within two years of completing construction or publicly opening, whichever occurs first. The study must take place during the summer season. If the study reveals that certain traffic volumes or speeds have increased higher than the thresholds specifically set by the Board in the Decision, Condition 3 states that Front Yard will be responsible for the "construction, design and installation of traffic calming measures" at certain locations.

This condition does not require that future traffic plans or studies be submitted to the Board for analysis that has not yet occurred, and it does not condition approval of the project on the future traffic study. See Tebo, 22 Mass. App. Ct. at 263 (finding a provision requiring the future submission of a plan not yet in existence or reviewed by the board before proceeding under the special permit to be an improper delegation). The Board made extensive findings regarding traffic based on reports submitted with the special permit application, and the Town then conducted its own peer review. The Board issued the Lenox Special Permit regardless of whether the post-occupancy traffic study establishes that traffic has exceeded certain levels within two years, and, inferentially, did not find a current need for traffic calming measures. Instead, Conditions 2 and 3 merely outline the mitigating features Front Yard will have to pay for and install should the need arise.

III. Front Yard's Motion for Attorney's Fees and Costs

On December 5, 2016, Front Yard moved for attorney's fees and costs pursuant to G. L. c. 231, § 6F. Plaintiff moved to strike this motion on December 7, 2016, arguing it was untimely. The court chose not to strike it, but informed the parties it would be decided at a later date. The court determined it would decide this matter on the papers without oral argument in accordance with Land Court Rule 6, after the appeal period from the issuance of a judgment in this case. An opposition to the motion is due not later than two business days after the expiration of the appeal period, whether or not a Notice of Appeal is timely filed. If there is an appeal, the court will await the outcome of the appeal before deciding the motion under G. L. c. 231, § 6F, but the opposition, if any, is nonetheless due not later than two business days after the expiration of the appeal period.

IV. Conclusion

Accordingly, based on the foregoing, this court concludes the Special Permit Decision by the Lenox Board was not arbitrary or capricious, nor was it based on legally untenable grounds, and therefore, it is upheld.

Judgment to enter accordingly.


[Note 1] On the morning of trial, four of the original plaintiffs, through counsel, announced to the court for the first time that they would "not be appearing and presenting testimony." Counsel stated: "[t]he Edmonds will not be appearing and presenting testimony. They are not presumed abutters, or presumed to have standing. In addition, Grausmans will not be testifying . . . . My understanding is they will no longer be pressed as plaintiffs in the case because we believe we're not putting on a standing case and they don't have a presumption of standing." Front Yard's counsel agreed with Plaintiffs' counsel's characterization, and counsel for Plaintiffs confirmed that no withdrawal had been filed.

[Note 2] As noted above, all other named plaintiffs failed to appear for trial and will be defaulted in connection with the issuance of a judgment in this case.

[Note 3] The site plan was approved in connection with the special permit application for the Stockbridge Special Permit.

[Note 4] The site plan was approved in connection with the special permit application for the Stockbridge Special Permit.

[Note 5] At trial, a dispute arose over the characterization of the Stipulation, focusing on the language italicized above. See Tr. vol. I, 205: 16–209: 1. Front Yard argues the Stipulation rebuts Plaintiffs' presumptive standing, that it establishes the six findings reached by the Board as facts, and that is also precludes a claim of harm due to any issue covered by the stipulation, such as harm from traffic or parking. Plaintiffs disagree, claiming that the italicized language excepted certain issues from the joint statement of facts agreed to by the parties in advance of trial. Specifically, in Section I.A [erroneously numbered I.1. in the May 1 Amended Joint Pretrial Memorandum,] Plaintiffs outline the legal issues as follows: whether the proposed project violates the Bylaw's 35-foot height restriction; whether the proposed spa constitutes a "personal service establishment" prohibited in an R-1A Zoning District; whether the Board improperly delegated certain decisions before granting the special permit; and whether the proposed project has adequate parking planned. Front Yard relied on the Stipulation in support of its decision not to call its traffic expert to testify at trial. Front Yard's decision to rely on this stipulation, however, did not negatively affect its ability to present its case because its expert's report was in evidence, and the findings set forth therein were not adequately rebutted by Plaintiffs, who did not call an expert at trial. Several exhibits relating to traffic were included in the parties' agreed exhibits, such as traffic study reports, correspondence from municipal officials relating to traffic, and memoranda relating to a traffic peer review study. This evidence, together with the testimony elicited at trial, was sufficient to put standing as to alleged traffic harm in issue. Alternatively, even if Front Yard's interpretation of the stipulation was correct, this would not, in the court's view, preclude Plaintiffs from establishing standing on alleged harms, like traffic, if they could. They did not do so at trial.

[Note 6] The BETA Study provided twenty-four comments and recommendations to be reviewed, to which Fuss & O'Neill responded. Several memoranda were exchanged, with Fuss & O'Neill and BETA each responding to various comments and responses. In a memorandum dated February 24, 2015, BETA stated it required no further comment or response for eight of the responses in the January 29 memorandum. For the remaining comments, BETA provided additional comments and recommendations. Fuss & O'Neill responded in a memorandum dated March 16, 2015. BETA responded with a memorandum dated March 17, 2015.

[Note 7] In this discussion, the word "Plaintiffs" refers only to the four Plaintiffs who participated at trial. Of the four, all but Mr. Jackson are parties-in-interest.

[Note 8] "Parties in interest" include abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within 300 feet of the property line of the petitioner." G. L. c. 40A, § 11.

[Note 9] See Decision at 5.

[Note 10] Because it is not necessary for more than one plaintiff to have standing in order for the case to proceed to the merits, the court will not address each individual plaintiff and his or her basis for standing. Mr. Bloomgardern did not testify and is not discussed, though he is a co-owner with Mrs. Bloomgarden.

[Note 11] Any noise violations stemming from outdoor activities are to be documented in writing by either the Town of Lenox Police Department or the Code Enforcement Officer. If the Board determines, after the periodic reviews, that a certain number of violations has occurred, Front Yard will be required to contribute to an escrow account to fund the implementation of additional mitigation requirements. See Decision at 9.

[Note 12] Mrs. Bloomgarden testified that she has a "personal health issue" regarding exhaust that would affect her personally, but did not provide any specific details. Nor did she or Mr. Bloomgarden offer any expert opinion whether exhaust generated by vehicles entering and exiting Elm Court might flow toward the Bloomgarden property and, if so, whether the substantial required screening would adequately mitigate any flow.

[Note 13] Additionally, as discussed above, the parties' stipulation states "[t]here will not be any adverse effects on the natural environment," which the court infers to include air pollution.

[Note 14] The Traffic Study specifically addressed traffic at the intersection of Old Stockbridge Road and Hawthorne Street, where Mr. Jackson's property is located, determining that the intersection would be only minimally affected.

[Note 15] Any party affected by a taking under eminent domain – over which the Zoning Act has no authority – may pursue the remedies set forth in G. L. c. 79.

[Note 16] For example, structures in a Residential R-1A zone in Lenox may not exceed two stories, or thirty-five feet in height. The proposed structure in Lenox is designed to rise four stories and is fifty feet in height.