A closer look at the appeal challenging Elm Court hotel project

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LENOX — When Thomas Sebestyen moved to Old Stockbridge Road in 1997, he was drawn to the "nice, quiet neighborhood with good schools."

Sebestyen, an attorney, was among a group of eight neighbors who recently lost their Massachusetts Land Court challenge of the Lenox Zoning Board of Appeals' approval of a hotel at Elm Court.

Now, he's one of two who are appealing the ruling in the state Appeals Court.

In a two-page court filing late Tuesday, attorney Zachary Berk of Saul Ewing LLC, representing Sebestyen and Jane Bloomgarden, of Stone Hill Road in Stockbridge, said his clients reject Land Court Judge Karyn Scheier's July ruling that the ZBA's vote in favor of the resort "was not arbitrary, capricious or based on legally untenable grounds."

The two paragraph notice of appeal does not elaborate on the grounds for the appeal.

The fate of the 112-room, $50 million Travaasa Experiential Resort now hinges on whether the Appeals Court sides with the neighbors objecting to the project or with a lower court judge who upheld the ZBA's approval of a special permit granting access to the site, which lies mostly in Stockbridge.

In her July 17 decision, Scheier detailed how only "persons aggrieved" by the ZBA approval are allowed legally to pursue the appeal. Bloomgarden's property abuts the rear of the Elm Court estate, and Sebestyen lives directly across the street from the mansion, making them the only two of the original eight neighbors with legal standing in the case.

Based on Scheier's ruling, the pair will have to demonstrate the hotel will cause them significant injury.

Bloomgarden and Sebestyen did not return calls from The Eagle on Wednesday seeking comment.

Both testified at the one-day trial Scheier conducted in the Berkshire Superior Court building in Pittsfield last August.

At the trial, Sebestyen described the existing "visual challenge" of pulling out of his driveway because of sightline problems on Old Stockbridge Road, and worried that the problem would worsen from additional resort traffic.

"Guests coming to weddings will greatly affect my ability to enter and exit my driveway safely," he stated, adding he was concerned by the impact of music, fireworks and other noise from the resort's permitted weddings, up to three outdoor events per week.

Bloomgarden, a clinical psychologist and educator, testified she and her husband, David, bought the land and had the house constructed in 1999 for weekend and vacation use. "It's a refuge, quiet, peaceful and tranquil, a way of life that lets us decompress from stressful careers we both enjoy," she told the court.

Bloomgarden contended that several evenings of fireworks during Elm Court's previous use as a wedding site "created a sense of hazard, very noisy and unsafe."

She also described the Lenox zoning board's approval of access to the resort as "exquisitely inconsiderate, it feels like a nightmare. The project seems like a behemoth that doesn't consider the neighborhood character and interferes with our way of life, a mega-business out to make a lot of money from the town."

In her decision, Scheier, the Land Court judge, citing multiple previous cases in state courts, explained that to be "aggrieved," the neighbors must prove "more than a minimal or slightly appreciable harm" and that they must demonstrate they would be injured or harmed by proposed changes to an abutting property, rather than simply be "impacted" by the changes.

Specific factual support is required, the judge wrote, leading a "reasonable person to conclude a claimed injury likely will result from a board's decision."

Scheier noted that at the trial, Jane Bloomgarden complained of harm caused by noise, light and air pollution at the proposed resort and its parking area near her home. Sebestyen cited harm from noise and light pollution.

In her ruling, the judge stated that Bloomgarden and Sebestyen established their legal standing, meaning their right to appeal the ZBA special permit for the resort, based on potential noise only.

But she ruled that the Lenox board's approval of a special permit to the resort developer, Front Yard LLC, for access to the site is not arbitrary and capricious, and thus is upheld. She based her finding on Lenox zoning bylaws that protect freedom from excessive noise by setting specific decibel limits on outdoor noise, prohibiting all outdoor amplification, or any noise after 10 p.m.

She also ruled that testimony at the trial by Sebestyen and Bloomgarden about alleged harm caused by previous events at Elm Court when it was operated as a boutique wedding destination by the previous owners, Robert and Sonya Berle, was sufficient to give those neighbors legal status in the case. The judge noted that the developer did not present expert testimony to refute the neighbors' claims, though that finding was "a close call," she wrote.

The judge rejected the neighbors' claims regarding increased light and air pollution since it was based on "speculative testimony" while the developers produced "ample credible evidence of measures proposed" to minimize pollution. She also dismissed concerns about traffic impact from the resort project as insufficient to cause more than minimal harm.

The Land Court ruling upheld the Lenox ZBA's finding that the proposed use of the 90-acre site as a resort is allowed by special permit under both the Lenox and Stockbridge zoning bylaws. Three acres of the Stockbridge property — road frontage and entrances — are on the Lenox side of the town line.

Berk, the attorney representing the two neighbors, told The Eagle this week that, based on his experience, Appeals Court decisions usually come six to 12 months after the case is submitted.

In an email responding to queries on the next steps, Adam Hawthorne, president of Travaasa Experiential Resorts, declared that "we don't plan on allowing a further appeal to hinder our progress in any manner. We are within our legal rights to start the Elm Court project during the appeal and we plan to do so."

Any further delay would not be "fair to our team or to the vast number of community members that have supported our plans," he added.

Hawthorne said "in the upcoming weeks, we will begin to act in accordance with the rights granted to us through the [Stockbridge and Lenox special permit] approvals and engage with the appropriate officials in Stockbridge and Lenox in order to start the project and ultimately to realize our vision for a restored Elm Court."

So far, there has been no reaction from officials in the two towns.

Reach correspondent Clarence Fanto at cfanto@yahoo.com or 413-637-2551.


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