Town of Lenox, MA - Zoning Board of Appeals Minutes, 02/13/2007

Zoning Board of Appeals

February 13, 2007

7:45 p.m. Berkshire OSC, LLC, 55 Pittsfield Road (Map 17, Parcel 40), Variance under Section 6, Table 6.6-1.D.3 for a clinic and offices for medical and other health services. Applicant also seeks a modification of the Site Plan approved on December 12, 2005 for the addition of two canopies to the existing building and an enclosed emergency generator.

Members present: Chair Daniel Mintz, DM; Pam Kueber, PK; Shawn Leary Considine, SLC; Ned Douglas, ND; Clifford Snyder, CS

This is a continued Public Hearing from February 7, 2007

DM resumed the Public Hearing by stating that at the first hearing the applicant had made their presentation; there had been public comment and rebuttal from counsel representing Berkshire Health Systems.

The following correspondence was read into the record:

Elaine Steinert Support

Rita Willey Cella Support

Robert George Support

Montessori School Support

Bennigan’s Support

Diane Romeo Against (Applicant should follow the Zoning Bylaw.)

Fire Chief Daniel Clifford:

Chief Clifford wrote that he approved plans as presented. The project would have no negative impact

Assistant Building Inspector, Rick Ehle:

Mr. Ehle stated in his letter that the petition is consistent with the definition listed in the Lenox Zoning Bylaw.

Four member board equally divided on recommendation to ZBA.

Also a letter dated February 7, 2007from Mass Highway, with amended findings, was put into the record.

The comments in favor included the following:

1) Facility will permit patient choice

2) Use will stimulate economic activity (The building for the proposed facility has a history of failed businesses.)

Support: Derek Holt spoke in favor of the project citing the history of failure of businesses and need for a second economic center in Lenox.

Opposed: Tom Romeo of Berkshire Health Systems, spoke of his business investing in an ambulatory center of their own. Hospital has higher cost structures and provides service to everyone regardless of their ability to pay. Mr. Romeo does not feel that there is a hardship. If the petition is granted, Mr. Romeo requested that there be a condition that the facility is to be licensed by the Mass Department of Public Health and that service is available to all of Lenox and Berkshire County regardless of a patient’s ability to pay, the type of insurance or lack of insurance.

Support: Dan Levin, owner of Rhythms, a business located at Aspinwell, stated that the orthopedic group would provide economic support for Aspinwell.

Opposed: Eugene Dellea, President of Fairview Hospital, spoke of the struggle of Fairview Hospital and the negative financial impact this project would have on Fairview. He questioned if this project is for the public good.

Support: Linda Rahm, President of Massachusetts Association of Ambulatory Surgery Centers, said that free care is available and explained the licensing of such centers. She claimed that it is inaccurate to say that these facilities cause failures of other health facilities.

Opposed: Amy Schwendenmann (Inaudible)

Support: Luke Lambert: Chief Executive Officer of ASCOA said that physicians at ambulatory centers continue to serve area hospitals, and that the centers have negligible financial impact on hospitals.

Opposed: Karen Romeo-Leger said that the applicant should comply with bylaw.

Support: Elaine Roberts General Project Manager for Aspinwell, discussed the lack of success of businesses that have been located in the rear building (This is the location of proposed clinic.) Rents have been subsidized and there has been hardship for tenants and the landlord.

Support: Bruce Evanchik, a physician who has a single specialty surgical center, spoke in favor. He claims that the centers have minimal impact on existing facilities.

Support: Carla Skidmore, a retired registered nurse, spoke of the convenience and quality of service at the ambulatory centers, and the need for universal health care.

Unable to hear all of comments because of acoustics and under use of microphones

Final comments were made by Lucy Prashker, attorney with Cain Hibbard Myers and Cook, and represents Berkshire Health Systems who oppose the granting of the petition to OSC, LLC. Ms Prashker stated that there is nothing in applicant’s application to support the finding of variance. In reference to patient choice, she said that this is not borne out by the facts. Studies, she says, show that doctors largely if not entirely determine where a patient has a procedure done. The referring physician refers their patient to the facility where they have a financial stake. DM advised the attorney that she is veering off of the subject and that he feels the Board has heard enough on this subject.

She countered that Mr. Lambert had said that he was comfortable that other hospitals have not suffered significantly, but she disagrees. A serious detriment will result. Berkshire Health Systems have an ambulatory surgical center at a cost of 20 million, this is not an issue. Where is the profit going to go? DM said that Ms. Prashker was off the subject, and made the decision to cut off the comments. Ms. Prashker referred the Board to her written submission.

Lori Robbins, attorney representing Berkshire OSC, LLC, read from her prepared Legal Memorandum on Variance Petition dated February 13, 2007. (This memo is in file.) She addressed issues presented by Ms. Prashker at the hearing of February 7, 2007 and cited case law as justification for the granting of a variance. She said that three planning board members who were on the Planning Board when the Gateway Mixed Use Development Overlay District was drafted have said they could not possibly list all of the uses that would be desirable in that district and that the proposed use as a surgical center is exactly the type of non tourist based use that would be beneficial to the town and, in their opinion, this use is vital for this district. Ms. Robbins said that this proposed use is so closely related to the uses allowed and asked that he variance be granted.

The public comment portion of the hearing was closed and the Board entered the

PK asked to have a recess for thirty minutes to review the submissions. The Board adjourned until 9:45 pm.

SLC made a motion to grant a variance from Section 6, Table 6.6-1.D.3. PK seconded.

ND said that he had a hard time with two different standard of hardship, but the specificity of the bylaw declares that doctor’s offices are allowed, but clinics are not. There is no room for interpretation. He was not in favor of granting a variance, but if the Planning Board and people of Lenox support the change at the Annual Town Meeting, the tenants would be allowed by right.

CS disclosed that he is a health care provider, and this hearing is not about the health care system. He feels that this proposal makes a lot of sense, but the bylaw does not allow this use at this location. “I think there is an oversight by the Planning Board in the creation of bylaw. My job is to decide what is there. If the board votes to grant the petition, and the petition is appealed, the petition will be tied up for a long time. The Annual Town Meeting is in 6-7 weeks, and if it is thought that this is an error, this can easily be corrected. I appreciate what Mr. Case has done, and he has been a problem all along in renting space. The board has tried to work with him, but I don’t see grounds for a variance. I am not convinced that every possible use has been scoped out. The proposed use is a good use, I support the idea. It is the way of the future to move to clinics, but I have to deal with the law before me. There are no grounds for granting a variance.

PK said that the Board has to be guided by what is outlined for the Board in bylaw. She feels there is a structural issue, and that Mr. Case has not created his hardship. “He inherited the white elephant, and the layout of the entire shopping district that he has purchased and is now trying to put to good use. Hardship has been demonstrated as Mr. Case has been unable to find tenants.”

PK asked DM if the variance would apply to the 8400 square feet or the entire 35, 000 square foot building. DM responded that the variance would only apply to the 8400 sf parcel.

SLC said that she would have a difficult time granting the variance, and encouraged the applicants to go to the Annual Town Meeting as this proposed use would be a good use. Arbiter should be the people of the town. She commended David Case for all that he has done. “He has done a wonderful job for with Aspinwell. This is a potentially really good use that could improve the property and potentially improve health care in the Berkshires.”

DM also commended David Case for what he has done for the property. “Everyone has seen the improvement and enjoy going there. No one wants to see the property return to the way it was. This is a very difficult issue. The Board and through its recent history are trying to take a more diligent and thoughtful approach to zoning bylaw. If bylaws are not applied in a rigorous manner then the process falls apart. The Board should not be deciding what is an oversight, and what isn’t an oversight. Variances have a very high threshold. If the variance is granted and appealed I am almost certain that our decision would be overturned.”

The Board denied the applicant’s petition by a vote of 1-4. PK voted in favor.

DM will write the decision.

The hearing was adjourned at 10:00 p.m.

Respectfully submitted,