Town of Lenox
February 6, 2007
Land Use Meeting Room
Members present: Acting Chair Steve Sample (SS), Joe Kellogg (JK),
Kate McNulty-Vaughan (KM-V), Pam Mackie (PM)
Kim Flynn recused herself as she is employed by Heller and Associates, the law firm which represents Berkshire OSC, LLC.
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.
This is a continuation of the meeting that was held on January 30, 2007.
JK told the applicants that he had not been a part of the January 30 meeting, a special meeting scheduled after he had scheduled a vacation, but he wanted to be a participant in this meeting. He stated that he was appointed by the Select Board to his position on the Planning Board, and plans to run for this position in the spring. His goal is to be at every meeting and to participate in every decision possible. The thought was that since he was not at the first meeting, he could not participate in this meeting but after consulting with Town Counsel Jerome Scully, he has learned that he can.
Lori Robbins said that there had been some questions at the last meeting about safety and the viability of the project. The applicants have assembled a team to address the issues.
Christopher Bishop represents Ambulatory Surgical Centers of America, ASCOA. His company, ten years in existence, has developed 38 centers, six of which are in Massachusetts. He described such centers and this one in particular. Berkshire OSC is a group of orthopedic surgeons who plan to have three operating rooms for day surgery. It is planned that this will be a multi specialty center. Procedures done at the centers
are cost affective for insurance providers and patients. This would be a Medicare certified facility. It is a highly regulated industry, and the state of Massachusetts is comfortable with further development of surgery centers. In the United States there are 5300 surgery centers and 4700 hospitals. Surgery centers have been around 30 years. The size of the average center is 6000 sf with two operating rooms. This one would be larger in order to handle the cases this
group currently has. For the exact procedure the cost would be sixty two percent of what it would cost at the hospital. The insurance companies are in favor because of the cost savings.
Susan Kazirian, a Registered Nurse, is VP in charge of operations for ASCOA, addressed the concerns about transportation of patients in an emergency. She said that the clinic would be fully equipped to handle cardio-pulmonary emergencies which are extremely rare. It has been determined that only one in 2,000 patients ever needs to be transported and the reason is for dehydration or pain. In the cases where a patient is transported to the hospital it would be handled much in the same way when a nursing home patient is taken to an appointment. The surgery centers are certified, accredited and licensed. For the storage of medical gases the centers are required to comply with the 2000 Health Care Life Safety Code of the National Fire Protection Agency. A bio hazardous waste
company would collect, transport and dispose of waste. These companies are also highly regulated. Storage is in a designated room. In a facility of this size there would be bi-weekly collections of less than 50 pounds. .
Dr. Mark Sprague, one of the orthopedic surgeons discussed his experience working at a surgery center in Waltham for 10 months last year. He had 10 to 20 procedures a week with none requiring transportation to a hospital. Only well patients can be served at the center. In other words, if a patient has a heart condition, they would have to have their procedure done at a hospital.
The hours of operation were from 7:30 a.m. to 4:30 p.m. Patients are required to have someone drive them, and this particular center had other businesses where the family members could spend their time while waiting for the patient.
Dr. Kevin Mitts told the Board that there had been a question of who made up the Berkshire BOSC, LLC.
David Case, owner of the property, gave a review of his development and the difficulties he has encountered. Current businesses that are continuing to struggle are in the back 1/3 of the shopping center. The rear building where this center would be located has a history of business failures. The clinic would provide 16 high paying jobs. Mr. Case feels that there is a fine line with the variance that already exists, but in anticipation of Berkshire Health Systems objection to the center, Mr. Case wanted to be sure that he was on “bedrock.” He continued to say: “The consequence of losing this group would be quite dramatic to Aspinwell. We are not going with typical box anchors and there are not that many viable anchors in Berkshire County. This has the potential to energize the back and help the tenants. We have had 3-4 related businesses who want to come because of this clinic.”
KM-V asked what is unique about the building that would support the argument for a variance. The use requested is more complicated that just a doctor’s office.
Ms. Robbins argued that the building has unique aspects which qualify for a hardship. The variance request represents 8500 sf of a 35000 sf building that would draw other uses that are allowed by right. The law does not require it be absolutely unique. Mr. Case would not be able to reasonably use this building for anything else.
JK said that he has a major problem with use variances and that only a handful of communities in Massachusetts allow it. He feels that there is a need for an anchor tenant that does not require visibility, but he has a problem with a regulatory board making a decision for the citizens of the town. He feels that this should be decided at the Town meeting.
Ms. Robbins argued that the ZBA has the discretion and this use, a clinic, is so closely related to a physician’s office which is allowed.
Mr. Case stated he has spent a fortune on the development, and he is working for another big plan that they are not ready to discuss. He feels that he has earned trust by his commitment to the project and has gone beyond what other developers would do. He would feel that if he cannot get the support from the board that it is a sign of distrust.
Buzz Gray, spoke as a resident. He knows many owners and tenants at Aspinwell as he has done the landscaping at this location. He said that many have spent some of their life savings on their businesses. There must be growth. The indirect hardship on them is the large vacant building and it is unique proven by the history of failures. This building absolutely meets the criteria for a hardship. “You will be creating hardship if this is not permitted.”
Elaine Steinert, a resident, spoke in favor. She feels that a viable business that is not just for the tourist season is needed. She said that this use is so close to what is allowed and asked the board if it is worth giving up the opportunity that this business would bring.
John Rogers, of Berkshire Health Systems, who opposes the surgery center, addressed the issue of competition. He feels that the center would not meet the criteria for a variance. He said that there is no disagreement with ambulatory clinics, as they are investing 20 million into their own ambulatory clinic but he is concerned about the economic affect on the existing facilities.
PM spoke in favor of this use. “We need to start allowing more development in Lenox.” She supports amending the zoning bylaw. She asked Mr. Rogers what was the public detriment of this project. He responded that would affect the viability of the rest of the health care in Berkshire County.
Dr. Jeffrey Cella, addressed a comment made by Mr. Rogers regarding the financial aspect and the claim that this surgery center would direct their patients to the center because it would be more profitable to the center. Dr. Cella denied this saying that as physicians they would want the best for their patients. “This will be the best facility for a day procedure and the center will be a jewel for Lenox.
SS told the applicants and Mr. Rogers that the Board is not in the position to solve the health care issues in Lenox.
In response to PM question to Mr. Rogers regarding public detriment, Mr. Bishop said he disagrees that this project would have much affect on the existing health system. ASCOA revenue projections would be 1.5 percent of Berkshire Health Systems annual revenue.
JK has no problem with the use, but with the zoning bylaw.
SS thinks that this would be a great business that would benefit Lenox, but the ZBA would be the body that would make the decision. He did not foresee a surgical clinic going in while working on the Gateway Overlay District.
KM-V has a problem with the notion that this project meets the criteria for a hardship.
JK asked that the PB write a general letter to the ZBA that it does not meet the requirement of the bylaw were fully met. Also he wants to have further discussion regarding use variances.
SS asked that the letter include this year round use is beneficial for town. He likes the idea so much that he would vote to grant a variance. He also acknowledged the receipt of letters from the Fire Chief Dan Clifford and the EMS Director Chris Long who addressed SS’s safety concerns to his satisfaction.
PM feels this is a good use for the building and beneficial to the town. She would agree to variance.
KM-V made a motion that the Planning Board recommend against the variance for the project as presented. JK seconded the motion. The Board voted 2-2. KM-V and JK voted in favor of the motion and SS and PM voted against.