Developers' attorney pushes back against 37 Interlaken opponents

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STOCKBRIDGE — A groundswell of opposition to a $150 million resort and housing proposal erupted in town this past week, as nearby residents and several town officials blasted a $150 million resort development plan for the former DeSisto Estate off Route 183.

In response, the attorney for the property owner fired back on Thursday afternoon with a strongly worded written complaint.

At Select Board and Planning Board meetings on consecutive nights, accusations were leveled against the 37 Interlaken development team for trying to "repeal and replace" current Cottage Era Estate zoning rules that would bar the complex

Instead, the developers are seeking a project discussion by the Planning Board at a public hearing ahead of an up or down zoning decision by annual town meeting voters in May, rather than applying for a special permit from the selectmen.

"It seems to me that Stockbridge might be facing a hostile takeover," said longtime resident John Hart, a Conservation Commission member who's also on a Planning Board subcommittee reviewing the town's entire set of zoning bylaws. "I really object to this way of going about approaching the Select Board, the Planning Board, the whole thing. Can't we stop it?"

Town Counsel J. Raymond Miyares responded that any property owner is constitutionally entitled to submit a petition for a zoning change affecting his property. "It doesn't mean we have to like it," he added, "and certainly there will be opportunities to vote it down. But there probably isn't an opportunity to cut it off right now. We have to give them their procedural due process."

Developers are seeking to create a resort community featuring 40 to 50 hotel rooms, 139 condo units and 34 clustered single-family homes at the site, just south of Tanglewood.

The opposition against the project erupted in full force during Monday's Select Board meeting to announce a routine petition from the team's attorney to refer the developers' proposed Cottage Era zoning bylaw rewrite to the Planning Board for a public hearing as required by state law. The petition, dated Dec. 8, had a 14-day deadline for action.

The attorney, Jonathan M. Silverstein of KP Law in Boston, issued his written protest on Thursday.

"We were surprised and disheartened to learn that the Select Board engaged in an extended discussion" about the project Monday without notifying him and the property owner, Patrick Sheehan.

In an electronic letter addressed to the Select Board members with copies to all other Stockbridge boards and to Miyares, Silverstein emphasized that the posted agenda for the meeting referred only to announcement of the developers' zoning bylaw change request, with no indication there would be a board discussion with comments from the public.

Silverstein, a specialist in municipal law, contended that the discussion was "inconsistent" with the state's open meeting law. He also asserted the developers had been told there would be no Select Board discussion on the proposed resort until after the first of the year, following advance notice to the project team.

He also accused board members of making "false and disparaging remarks regarding the project" and Sheehan.

Denying the existence of an organized "PR campaign" by the developers, as claimed by Select Board Chairman Donald Chabon and member Terry Flynn, Silverstein argued that "the strong public support for this project is the result of grass-roots efforts to directly inform fair-minded members of the public regarding the project."

He also rebutted "false statements" by Select Board members that no specific financial data had been submitted, as requested. The developers submitted financial information on benefits to the town from the project resort on Dec. 8. (A copy was provided to The Eagle and a detailed article was published recently).

Silverstein also labeled as "an outright falsehood" Flynn's assertion that he had been "pressured" by project team members to attend open houses held by the developers earlier this year at the former DeSisto property. "This is an outright falsehood that has been repeated many times," the attorney wrote.

Despite "efforts to undermine the project and deprive Mr. Sheehan of due process," Silverstein expressed the hope that the Select Board

"will be willing to meet with us and provide a fair and unbiased forum to discuss the proposed 37 Interlaken project." He also requested "the courtesy of being notified when there will be public discussion regarding our project."

Attorney Alexandra Glover, representing property abutter Victoria Sujata, told the capacity crowd of about 80 residents at Monday's meeting that by pursuing a zoning bylaw reboot, the developers are seeking a "by right" use of the property for a resort complex.

"It's an extraordinary change to your current bylaw," Glover said, "and quite frankly I can't imagine a city or town having such a radical or large-scale, complicated development as a by-right use."

Town Counsel Miyares said "by right" means certain uses are permitted for a property without a permit.

Under the 37 Interlaken team's bylaw proposal, if approved by a two-thirds vote in May, the town would have "some ability to shape a project, it does not give you the ability to deny it," said Glover of Lazan Glover & Puciloski in Great Barrington. The Planning Board would conduct a site-plan review limited to traffic, parking, lighting, drainage and similar issues.

After the Select Board voted 3-0 to refer the developers' petition to the Planning Board, Selectman Flynn protested that "this proposal is bypassing our entire way of approaching our self-government, in a sense. It's really changing an approach to zoning."

"The average person is not going to have the wherewithal to come in and take extraordinary steps to change public opinion and create a `by-right' use for their particular property," Flynn said. "This is very serious and it does set a precedent that then leaves us wide open to the assumption that if you have a large enough financial power behind you, then you can alter things the way you want to, and that's not how we're set up."

Traditionally, the Cottage Era zoning bylaw in Stockbridge has required a special permit by a unanimous Select Board vote to approve the development of an estate, including the configuration of the buildings. "A `by-right' use dispenses with all of that," Miyares said, "and all that's left in this proposal is a site plan review before the Planning Board," with very limited options to deny a proposal.

But he noted that at its public hearing, the Planning Board could impose changes on a development proposal if it so chooses. The board would report to town meeting voters on its recommendations, whether negative, positive or neutral.

Miyares also stated that under state law, a developer can submit a proposed zoning change to town meeting voters, no matter what the Planning Board decides. But if residents reject the plan, it could not be resubmitted for at least two years.

One vocal supporter of the resort proposal, Finance Committee member Jim Balfanz, blasted the Select Board for declining to meet with the developers to discuss their proposal and to answer questions "to be able to cooperatively move the project along. They were stonewalled, so what other option did they have?"

Balfanz suggested "taking the emotion out of this, analyze what they've submitted and hopefully the Planning Board will do so expeditiously and give everyone the opportunity to express their opinions for it and against it."

"Let's come to a decision that hopefully will be in the best interests of the town of Stockbridge and not any particular individuals," he said.

Clarence Fanto can be reached at cfanto@yahoo.com or 413-637-2551.

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