Elm Court lawsuit to be heard Aug. 16 in state Land Court

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LENOX — Nearly 10 months after eight neighborhood residents filed a lawsuit aimed at overturning special permit approval of the Elm Court resort by Lenox and Stockbridge boards, a trial date has finally been set at Massachusetts Land Court in Boston.

Following a pre-trial conference, attorneys for the parties have been advised that the three-day trial will start on Aug. 16 before Judge Karyn Scheier.

The lawsuit against the Zoning Board of Appeals and developer Front Yard LLC, was filed last July 31, within the 20-day appeal window following the board's 4-1 vote granting the special permit for project.

Front Yard aims to build a $50 million, 112-room resort in a residential area off Old Stockbridge Road. It includes a 60-seat public restaurant and a 15,000-square-foot spa near the original 1886 estate, which requires additional renovation.

Approval by the Stockbridge Select Board had been granted 20 months ago. Most of the historic 90-acre property lies within that town, but the entrance and the road frontage are in Lenox.

Because the timing of a ruling by the Land Court judge is uncertain, the Stockbridge Select Board voted 3-0 on May 2 to extend the two-year special permit granted on Sept. 10, 2014, for two additional years. The new expiration date is Sept. 10, 2018. The special permit requires that construction be under way before that deadline.

Earlier this year, attorneys for the neighbors sought a quick summary judgment from the court, contending that the case could be resolved based solely on legal issues. But attorneys for the town and the developer favored a trial for a ruling on the merits of the case.

Judge Scheier favored a trial as "more efficient" because the case involves facts in dispute as well as legal issues, according to the Land Court online case file.

However, the judge's decision could be appealed to the Massachusetts Court of Appeals.

The Lenox ZBA members are defended by town counsel Joel Bard of Kopelman & Paige in Boston. Bard stated in a message on Tuesday that he has no comment at present on the case.

Despite the lengthy delay, the resort owner, Denver-based Amstar, remains on board with the project, which would be the most expensive resort built in Berkshire County in many years.

Travaasa Experiential Resorts, an affiliate of the international real estate development and investment company, would operate Elm Court. Travaasa President Adam Hawthorne told The Eagle earlier this month that "we remain committed to supporting the ZBA's approval of the project and we are confident that we will prevail at trial."

Hawthorne said "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. Following the trial, we look forward to completing the project and joining the strong community of hospitality businesses in Stockbridge and Lenox."

Although the legal maneuvering applies only to the entrance and road frontage in Lenox, Front Yard is unable to access the property to begin work unless the case is resolved in its favor.

The neighbors who filed the appeal are David and Jane Bloomgarden, Barney and Julie Edmonds, Richard and Susan Grausman, Joseph A. Jackson and Thomas Sebestyen. All are residents of Old Stockbridge Road or side streets in the general vicinity of Elm Court.

They and other opponents argued that the size of the resort and the traffic it would trigger on their bucolic rural road would jeopardize safety and negatively affect the character of the neighborhood.

The Lenox zoning board, which attached numerous conditions for the resort's operation to its favorable ruling, found that the neighborhood character would not be substantially adversely affected, based on multiple traffic studies. Town Hall leaders hope the resort's guests would spike business at downtown eateries and retailers.

In addition, the resort developer would spend at least $2.3 million on sewer and water line extensions and upgrades in Lenox, plus pay a onetime $480,000 sewer hookup cost and $100,000 in annual fees.

Stockbridge officials are keen on potential property and lodging tax revenues generated by the resort, estimated at up to $600,000 a year by the former Finance Committee Chairman Jean Rousseau.

During the town's Select Board debate on the Elm Court special permit application, Rousseau also cited a one-time $350,000 building permit fee for the town and a payroll of $3 million annually, according to Travassa's projections.

Hawthorne has said the company would invest $2 million the first year and $1 million annually thereafter to market Elm Court and the surrounding area to potential visitors. The resort would create about 100 jobs with annual pay averaging $36,000, he noted.

Questioned by opponents during the Lenox ZBA meetings, he said the size of the resort is required to maximize revenue during the high season and yield a 6 to 7 percent profit margin for the company based on year-round 60 to 70 percent room occupancy.

Front Yard is represented by attorney J. Gavin Cockfield, a commercial litigator at the Boston firm Davis, Malm & D'Agostine. Cockfield did not return a message seeking comment in time for this report.

The neighborhood group's appeal is handled by Peter S. Brooks in the Boston office of the East Coast law firm Saul Ewing LLP. Brooks could not be immediately reached for comment.

Contact Clarence Fanto at 413-637-2551.


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