Elm Court granted extension on special permit while fighting lawsuit
STOCKBRIDGE — As the clock ticks slowly toward a court decision on whether construction can begin on the $50 million Elm Court resort project, the Stockbridge Select Board has approved a two-year extension of the special permit it granted on Sept. 10, 2014.
At a hearing on Monday night, the members signed off unanimously on developer Front Yard LLC's local attorney Nicholas Arienti's request for the extension.
A trial date remains to be set for July or August at Massachusetts Land Court in Boston on a neighborhood group's lawsuit against Front Yard and the Lenox Zoning Board of Appeals for its approval of the 112-room resort, 60-seat public restaurant and spa on 1886 estate in a residential zone at 310 Old Stockbridge Road.
"We are pleased to have the continued support of the Stockbridge Board of Selectmen," said Adam Hawthorne, president of Travaasa Experiential Resorts, in an e-mail message to The Eagle. Travaasa would operate Elm Court for Front Yard, an affiliate of Denver-based Amstar, a global real estate development and investment company.
Commenting on the appeal of the Lenox ZBA's special permit approval, Hawthorne added: "It is unfortunate that a small group of people continue to cost Front Yard, and the Town of Lenox, time and legal dollars to defend a case that is clearly a delay tactic."
He emphasized that "we remain committed to supporting the ZBA's approval of the project and we are confident that we will prevail at trial. Following the trial, we look forward to completing the project and joining the strong community of hospitality businesses in Stockbridge and Lenox."
Since the road frontage and entrance of the 90 acre estate are on the Lenox side of the town line, the legal tangle bars Front Yard from access to the property in order to begin work unless or until the court gives the go-ahead. Typically, Land Court judges issue their rulings several months after conclusion of a trial.
Arienti asked the Stockbridge Select Board to determine that there was "good cause," namely the lawsuit, to grant a permit extension for an additional two years. Without it, the special permit would have required Front Yard to begin construction by this Sept. 10, but that would be impossible because of the still-pending appeal at Land Court.
He cited previous cases in Massachusetts as well as provisions in state law to argue that there is a legal and practical impediment that justifies extension of the permit deadline.
After Selectman Stephen Shatz moved to extend the special permit for two years as of Sept. 11, 2016, only one audience member commented.
Norman Michaels, board chairman of the White Pines Condominiums near Stockbridge Bowl, sought assurances that agreements with Front Yard would continue, requiring that Elm Court have no outdoor music or other noise generated by entertainment after 10 p.m., specifically including fireworks.
Shatz said the Select Board was only considering extending the existing special permit and its long list of conditions, with no modifications other than the time period.
The 3-0 vote in favor came after Shatz observed that because courts have supported "good cause" impediments such as appeals, the developer cannot use the property because the main entrance is in Lenox.
"For all practical purposes, they cannot build," he said. "I would suggest strongly that 'good cause' has been shown in this case."
To underline the point, Shatz accepted Arienti's additional position that from the time the Lenox neighbors filed the appeal last July 31, the Stockbridge board's two-year limit was frozen, and remains so until the Land Court case is finally resolved. The board voted 3-0 to concur with Arienti's view.
"The concurrence has no legal authority," Shatz noted, "but I think it's important we send that message."
After attorneys for Front Yard and the Lenox ZBA pushed for a Land Court trial on the merits of the case in order to reach a final resolution, Judge Karyn Scheier asked both sides in the dispute to report back to the court this Friday with a proposed trial date this summer.
Contact Clarence Fanto at 413-637-2551.
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