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The Community Development Board was satisfied with the restaurant's parking operations but requested a followup report at the end of the season.

Proprietor's Lodge Gets Permanent Certificate of Occupancy

By Jack GuerinoiBerkshires Staff
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PITTSFIELD, Mass. — The Community Development Board gave city staff the go-ahead to award Proprietor's Lodge a permanent certificate of occupancy.
Board members told attorney Dennis Eagan, representing the restaurant and event venue on Waubeek Road, that they were satisfied with the lodge's recommitment to its parking management plan.
"I think that they have demonstrated compliance with their parking management plan and if there are problems then we can revisit that," board member Elizabeth Herland said.
Earlier this year, the board agreed to only allow the lodge a temporary certificate of occupancy after it was found that the operators were not adhering to the agreed-upon parking plan.
The former Itam Lodge is in a thickly settled area and neighbors have been vocal about parking problems and noise.
The establishment agreed to shuttle guests from another location to alleviate parking and traffic issues. The parking plan also called for six spaces to be designated for carpool only, for a designated space for taxis, and that a parking attendant would be on hand to control traffic. 
Egan said the lodge has applied the parking management plan and, per the plan, has hired law enforcement to monitor events with more than 150 attendees.   
"There were quite a few where it wasn't quite 150 but the applicant figured it was close enough to hire law enforcement," he said. 
City Planner CJ Hoss said he has received no more complaints but the board can always call the Proprietor's Lodge back to a meeting if something arises.
Resident Linda Pensivy, representing the neighborhood, asked the board to extend the temporary certificate of occupancy until the end of the year. She recommended holding off until a late October event that should draw quite a crowd.
"They have not had an event that has matched or exceeded the two to three events that caused the uproar in the neighborhood," she said. "It is going to be high traffic, high volume, and this will be the way to determine if they follow their plan." 
She said she had video footage proving that the lodge was not sticking to the plan. At past events, she said, there has not been law enforcement monitoring the parking lot. She added that the parking lot still causes a nuisance in the neighborhood.
Eagan said there are always officers on-site when need be but they may not be in a squad car 
The board felt confident in allowing the permanent certificate but did ask that Eagan come back at the end of the season to present another report at the end of the year.
In other business, the board approved a special permit request from True East Leaf that wants to establish a marijuana cultivation and retail operation at 161 Seymour St. 
"If you can take care of the parking for the employees then it will be OK," board member Floriana Fitzgerald said.
The proposed use does not meet the city's off-street parking requirements.  
Attorney Anthony Doyle, representing the company, said they are required to have nine parking spots. Currently, there are three on-site and an agreement with Berkshire Medical Center that will provide four more.
He said they are short two spots.
"We certainly will provide those and not allow our employees to park on the street in the vicinity of the store," he said. "It does not behoove us to have employees parking in front of the store anyways we need to reserve that for customers."
Doyle said he was informed by Hoss that there may be a fire access issue with the three spots they have and if that is the case, they will find alternative parking.  
He said they are discussing alternative parking in the neighborhood.
The board did vote to waive the requirement and recommend it to the Zoning Board of Appeals. The board did add to the motion that the parking must be squared away before the certificate of occupancy is signed off.  

Tags: community development,   parking,   Planning Board,   

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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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