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Building Commissioner Gerald Garner said 'nightclub' is just a used to describe certain types of usages in the building code. He said it is not subjective but based on state law.

Rusty Anchor Challenging Pittsfield Building Inspectors' Ruling

By Andy McKeeveriBerkshires Staff
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PITTSFIELD, Mass. — The Rusty Anchor is appealing to the state after local building inspectors have characterized its second floor as a nightclub.
Owners Scott Graves and Paula Messana had just finished renovating the second-floor space at the private marina and are hoping to use it for such events as baby showers or anniversary get-together.
But the city's Building Department says it needs to make significantly more investments in the fire safety system because by definition the use of that space is for a "nightclub."
The Rusty Anchor is now appealing to the state, saying that classification is "unfair."
"He doesn't want to be a nightclub. He never applied to be a nightclub," attorney Darren Lee said, later adding, "It is new construction and we've been tagged with this unfair label."
Building Inspector Albert Leu, however, said the state revamped its definition of what qualifies as a nightclub in 2004 following a deadly fire in a Rhode Island nightclub.
He outlined a handful of criteria, used to determine whether or not an establishment needs to meet those increased thresholds. Those include late night hours, high occupancy, service of alcohol with minimal food options, and loud music. There are triggers such as raised platforms, the way the seating is arranged, and space for dancing as well.
Leu said according to the paperwork filed for the Rusty Anchor, more than two of those requirements were met. That means the owner will have to put in a fire protection system that shuts down all sounds and visible distractions, activates all of the house lights, and illuminates the entire path out of the building. Those building code protections were put in place to make it easier for a larger group of people to exit in case of a fire.
"I believe the description of the use of that space complies with the requirements of a nightclub," Leu said.
Building Commissioner Gerald Garner said the term "nightclub" is just that, a term. He said a number of private clubs such as Berkshire Hills and the GEAA have had to meet the same criteria to be able to hold events in those spaces. He said it isn't a subjective matter, but rather specific criteria placed in the state building and fire codes.
"We don't have the right to say you are not a nightclub, because they are," Garner said.
Garner said the city doesn't know what type of events it will hold there in the future. It is expected to have an occupancy of 100 people and liquor is expected to be served there. 
Messana said the only entertainment planned there is for somebody to play music on a phone and Graves said the current entertainment license only allows for "minor amplification" and is no plans to change that into a loud spectacle.
"We don't want extremely loud music. We don't want a five-piece band," he said.
Nor do the clientele of the club. Multiple club members spoke on behalf of the Rusty Anchor saying it is a tranquil and tame place to be. 
"It is a very quiet group, an older group, the noise level is very, very low," member Peter Ochs said. 
Downtown business owner Steven Valenti is also a member there and said the space was constructed in a very tasteful fashion and at no point has he ever heard about plans for a nightclub. He sees the space as a perfect place for retirement parties or bridal showers, which is what Graves and Messana had designed it to be.
Council on Aging Director James Clark is also a member and he said it needs to be considered a banquet hall, rather than a nightclub.
The inspectors have reached some type of agreement with the club. The Rusty Anchor is being denied a certificate of occupancy, which it will appeal to the state. Once that appeal is granted, the city will allow for that second-floor space to be covered by its existing licensing.
That doesn't allow for more occupancy all of the time, but the club can use the space for larger crowds provided it files for a special event so inspectors know what is happening there -- Police Capt. Michael Grady said there have already been a few events held in the new space without the proper permits in place. 
Once the state settles the appeal, then there will be a determination as to whether the owners need to put in the more expensive fire system or the occupancy will simply be expanded and a new certificate of occupancy will be granted.
This isn't the first time the Rusty Anchor clashed with the city. Last year, the city's Licensing Board had argued with the company over its signage. The Rusty Anchor is a private, membership-based marina on Pontoosuc Lake. But, Licensing Board members felt it was advertising too much as if it were open to the public.
At the same time, the board felt the private club was offering a one-day membership option to circumvent laws.
The board had cited an e-newsletter released by the city listing bands playing there and signage close to Route 7, specifically a sign reading open, as evidence that it was operating as more of a traditional bar than a private club.
The newsletter was done without Graves' knowledge and he said the limited music offerings are done for the club members. The company scaled back its signage to appease the board. The one-day options could only be done once a year and was a way to attract new members.
Graves said he was trying to grow his membership base. The company had revamped its membership system in order to comply with the Licensing Board's wishes.

Tags: appeals,   building inspector,   license board,   nightclub,   

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Letter: Problematic Proposed Lenox Short-Term Rental Bylaw

Letter to the Editor

To the Editor:

Under the proposed short-term rental Lenox bylaw, "up to two bedrooms in a dwelling unit may be rented year-round by right provided that the owner or tenant is occupying the dwelling unit at the time of the rental."

Presumably, bedrooms may not be rented at all if the owner or tenant is not occupying the dwelling unit.

In other words, literally, the very same use is allowed by one type of owner (an owner occupying the dwelling unit), but not another type of owner (one who does not occupy the dwelling unit where bedrooms are being rented). Because there is identical use and intensity and the only thing that differs is the type of owner or renter; it is hard to view this as mere regulation of use and not ownership.

The other provision suffers from the same problem. Suppose there is a duplex or land with two houses on it (perhaps an old robber-baron estate) but with separate owners for each dwelling unit. Under the rule regarding "dwelling units being rented in their entirety," "an entire dwelling unit maybe rented up to 75 days per calendar year by right," and "an entire dwelling unit may be rented for an additional 35 days (up to 110 days) per calendar year by Special Permit."

But then suppose there is unity of ownership and one person owns the entire duplex or both houses. In that case, "the above totals apply to the entire parcel" and "the day limits defined above shall be apportioned among those dwelling units."

A town can regulate the number of days a short-term rental may be utilized under the newly passed statute: but this additional restriction based on who owns the premises is a regulation of ownership and not use.

The same is instinct through other parts as well. Of course, Lenox residents or their guest can park in the street. But if you are renting a short-term rental, "All overnight parking must be within the property's driveway or garage." If you own or rent property, so long as you get the right permits, you may entertain on your property. But if you are a short-term renter, "events that include tents or amplified music or which would customarily require a license or permit are not allowed."

Since 1905, when Home Rules was put into the [Massachusetts] Constitution, towns could pass their own bylaws, so long as there was no regulation of a civil relationship unless it was an incident to a legitimate municipal power. This meant, among other things, zoning laws had to regulate use and not ownership. It is now a fundamental principle of Massachusetts zoning that it deals basically with the use, without regard to the ownership of the property involved, or who may be the operator of the use. This bylaw appears to violate this fundamental tenet.

By way of example of the you-may-regulate-use-but-not-ownership rule, it has been held that a city did not have authority under the Massachusetts Constitution to pass an ordinance that affected the civil relationship between tenants and their landlord, who wished to convert their rental units to condominiums. In another case, a municipal ordinance which restricted a landlord's ability to terminate a lease and remove his property from the rental market in order to sell it was invalid.

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