STOCKBRIDGE >> With the $50 million Elm Court resort project still in legal limbo at Massachusetts Land Court, the developer has asked the Select Board to freeze the existing two-year permit that expires on Sept. 10 by keeping it running, or to extend it for an additional two years.
Because the three-acre entrance and road frontage to the 1886 estate on Old Stockbridge Road lie in Lenox, the town's zoning board approved by 4-1 a special permit with multiple conditions last June 29 for access to the property following seven contentious meetings and formal public hearings. The Stockbridge Select Board had voted their approval in September 2014.
Last July 31, eight Stockbridge and Lenox neighbors appealed the decision by filing a lawsuit against the board and developer Front Yard, LLC, contending that the 112-room hotel project - which includes a 60-seat public restaurant and a 15,500 square-foot spa - would disrupt their residentially zoned neighborhood and also pose traffic and safety hazards.
A trial is expected in July or August, though no specific date has been scheduled yet as high-powered Boston law firms hired by the neighborhood opponents and by Front Yard have dug in for an extended legal battle.
In a letter to the Stockbridge Select Board, the developer's local attorney, Nicholas Arienti of Hellman Shearn & Arienti in Great Barrington, asked to keep the special permit running beyond its Sept. 10 expiration, or to extend it for two years. The permit covering renovation of the Elm Court mansion and construction of a hotel annex on the 87-acre site normally would require work to begin within two years after it is granted.
"The appeal of the Lenox Special Permit presented both legal and practical impediments to use of the Stockbridge Special Permit as Front Yard did not have legal access to the Stockbridge portion of the property in order to realize the benefit of the permitted use," Arienti wrote. He pointed out that it made "no practical sense" for the developer to apply for a building permit or begin construction until the legal challenge is resolved in Land Court.
If the Stockbridge Select Board chooses a permit extension, it would continue until Sept. 10, 2018, four years after it was first issued. A public hearing on Front Yard's request is slated at 7 p.m. May 2 at the Stockbridge Town Offices on Main Street.
Neighborhood residents declined comment Monday on the advice of their attorneys, the law firm Saul Ewing, LLP. The Boston law firm of Davis, Malm & D'Agostine represents Front Yard at Land Court, while the Lenox ZBA is defended by attorney Joel Bard of Kopelman and Paige, also in Boston.
Adam Hawthorne, president of Travaasa Experiential Resorts, which would operate the Elm Court, was not immediately available for comment.
According to Land Court online records, attorneys for the neighbors and the developer argued for a quick decision on the case earlier this year, contending that it could be resolved based solely on legal issues.
But the defendants' attorneys wanted a trial on the merits of the case in order to reach a final resolution.
Judge Karyn Scheier supported a trial because the case involves a combination of facts in dispute as well as legal issues. A pretrial conference on April 4 resulted in a series of proposed trial dates in July or August, subject to the agreement of both sides through a memorandum due in court on May 5.
Shortly after the resort opponents filed their lawsuit, town leaders in Lenox described the appeal as a delaying tactic.
But in a message to The Eagle, attorney Peter S. Brooks of Saul Ewing LLP said "statements in the press over the past few days that this suit has been brought for the purpose of delay are false and defamatory. Plaintiffs' claims are supported by independent traffic experts as well as established legal precedent."
Brooks argued that the plaintiffs who filed the suit "are but a few of the many Lenox and Stockbridge residents who have consistently opposed this massive commercial project in their residential neighborhood on a narrow country road."
"The suit contends that the applicant failed to produce sufficient evidence to show that the special permit was warranted and contends that the Zoning Board decision is inconsistent with the provisions of the Lenox Zoning Bylaw," Brooks added.
On behalf of the neighbors, Brooks challenged the zoning board's decision "to defer a complete traffic analysis until after the resort is operating and the improper delegation of important aspects of the project to other town boards or departments." He also maintained that a proposed spa on the resort site and the 50-foot height of the new hotel structure violate the Lenox bylaws.
Brooks was responding to assertions by Lenox Select Board Chairman Edward Lane that the ZBA had "an unprecedented amount of input from the public, more than any other project that's ever come before them. They really listened to the people, and they weren't unanimous but they made the hard decision that this is the right thing to do for the benefit of the entire town. It makes me angry, it makes me frustrated as all of us are, I'm sure, but it's part of the process and there's not much we can do."
Lenox Town Manager Christopher Ketchen had contended that there were several factual errors in the lawsuit, notably that the special permit approval violated a town height limit of 35 feet or two stories in a residential area. According to current bylaws in Lenox and Stockbridge, the limit is 50 feet, he said.
Contact Clarence Fanto at 413-637-2551.
Elm Court timeline ...
July 2012: Members of the Berle family sell the Elm Court estate for $9.8 million to Front Yard, LLC, developer of a proposed resort on the site.
May 12, 2013: Stockbridge annual town meeting voters approve a revision of the town's cottage-era estate bylaw, clearing the way for the development of Elm Court as a resort. Three months earlier, voters at a special town meeting had rejected a bylaw update.
Sept. 8, 2014: Stockbridge Select Board approves special permit with conditions for the Elm Court resort project; 87 of its 90 acres are in the town, but three acres of the entrance and road frontage are in Lenox.
June 29, 2015: After six previous meetings and public hearings beginning Feb. 10, the Lenox ZBA votes 4-1 to approve the project with special conditions, followed by a written decision filed on July 14.
July 31, 2015: Eight Lenox and Stockbridge neighbors of Elm Court filed an appeal in Massachusetts Land Court suing the Lenox ZBA and Front Yard, LLC.
April 4, 2016: At a pre-trial hearing in Land Court, both sides in the dispute agree to file by May 5 an agreement for a trial date in July or August.
May 2, 2016: Stockbridge Select Board to hold public hearing at 7 p.m. to hear the developer's request to freeze the two-year special permit beyond Sept. 10, keeping it in place, or instead to extend it for an additional two years until Sept. 10, 2018.