Great Barrington — After several public hearings, on Monday, April 10, the Selectboard approved a special permit application made by Berkshire Aviation Enterprises, the company that owns the Walter J. Koladza Airport.
The airport was built in 1931, right before the town adopted a zoning code, on a former potato field that is located in a residential zone. Because it was built before the town’s zoning codes were adopted, it made the airport a pre-existing nonconforming use under the town’s zoning bylaws.
The company can now operate the airport, located at 70 Egremont Plain Rd., under sections 3.1.4.E, 7.2, and 10.4 of the town’s zoning bylaws. Section 3.1.4.E covers permitted uses in town including “Utilities, communication, and transportation.” Section 7.2 covers aviation fields, while Section 10.4 covers special permits.
The application was made in light of a group of residents filing a civil complaint against the Zoning Board of Appeals over its decision in April 2022 to uphold a decision by zoning enforcement officer Edwin May. The case, which is still in Land Court, is based on May’s decision to deny a request from the neighbors of the airport to enforce the town’s zoning bylaw against the airport.
Back at the February 27 public hearing, Selectboard members Leigh Davis and Ed Abrahams said that they filed an appearance of a conflict of interest forms with the town. Those filings, however, were not referenced at the Selectboard’s public hearing on April 10.
Selectboard Chairman Stephen Bannon closed off public comment about the application back at the March 13 public hearing. But before he closed off public comment, the town received multiple comments from residents, including several online petitions, both for and against the town granting the special permit.
At the April 10 public hearing, the Selectboard reviewed a 10-page finding of facts, which the board previously reviewed at the previous public hearing on April 3. During both the April 3 and April 10 public hearings, the Selectboard did not take formal votes on the proposed changes to the draft but instead made informal verbal agreements to the proposed changes.
At the beginning of the hearing, Abrahams told the Selectboard that he wanted to include a line in the findings that said “according to town counsel, the town’s ability to enforce these conditions is unclear” in regards to flight operations.
However, Town Attorney David Doneski recommended against the suggestion by Abrahams. “I would recommend not including in a document, a statement if it is a grant that imposes conditions on a statement that questions the board’s ability to enforce because that could ultimately be decided by another body, either administrative or judicial,” Doneski said. “I would not recommend acknowledging or agreeing to any limitation on the town, or the board’s authority in the absence of some proceeding where that issue was formally joined. I recommend that the town and the board prepare to issue a document that, to the greatest extent possible, reserves all of the towns and the board’s rights.”
“But the [hearing] minutes we just approved has at least three examples of you advising us we may not be able to enforce these [conditions],” Abrahams said. “Despite this, we shouldn’t include it here?”
“Yes, it’s not necessary to include it,” Doneski said.
The Selectboard went on to review several revised conditions in the findings of fact, including conditions regarding the prohibition of drone operations and jet or turbojet engine operations at the airport, the testing of site soil, the implementation of a fuel tank leak alarm system, the preparation of emergency protocols, and regulations concerning continuous takeoffs.
“If Berkshire Aviation Enterprises is sold, is it the responsibility of the new owners to continue with the conditions of the special permit?” Bannon asked Doneski.
“Yes, in my opinion, because it’s the entity and any successor persons that are filling offices within that entity that would be subject to the restrictions on the corporation,” Doneski said. “The successor, if there were successor persons as this condition is structured, is the named corporate entity that has the right to the special permit. So if there were other organizations or persons who wanted to operate in a separate manner under a separate structure, in my view, the special permit would not be something within their control. It has to stay within this corporate entity.”
After the public hearing was closed by Bannon and right before it was time to vote on the findings of fact and the special permit, Abrahams made a five-minute long speech on why he was going to vote against approving the special permit. “An airport in a residential neighborhood is a delicate balance,” Abrahams said. “We missed an opportunity to really listen to various opinions and try to reach a compromise. The applicant has stated that this decision is about having an airport versus not having an airport and that if the town loses in court it turns the clock back to 1932. That isn’t correct. We are not deciding if there should or shouldn’t be an airport in that location. We are deciding if the benefits of granting a permit outweigh the detriments.”
Abrahams pointed out that, since the airport is a pre-existing non-conforming zoning use, it would be able to continue even if the special permit was not approved. “What can’t continue without the permit is increasing the nonconformity,” Abrahams said. “If we lose in court, we can still permit specific expansions of nonconforming use and buildings. Without a permit, the town controls growth. With it, we are at the mercy of the courts upholding our issuing of conditions normally reserved for the Federal Aviation Administration and Department of Transportation. We saw the applicant install an underground gas tank on top of our water supply despite the fact that our zoning doesn’t allow underground tanks in the Water Quality Protection Overlay District. They were allowed to do that because it was the same size as the existing underground tank, not because it is a good idea to have underground tanks over an aquifer.”
Abrahams went on to say that “the town should retain control over decisions about growth and change” and that “too many” of the conditions in the special permit are potentially unenforceable. “According to our attorney, we may not be able to, and according to MassDOT we can’t enforce any conditions about the number of flight operations, type of aircraft, or the hours of operation,” Abrahams said. “Even if these conditions are enforceable, the town doesn’t have the staff or resources to enforce them. If any condition becomes unenforceable, we don’t know if we can revoke the permit. If it is this board’s opinion that the conditions are necessary to make the benefits outweigh the detriments, and if we can’t be sure that we can enforce all the conditions if we can’t be sure that we can revoke the permit if conditions are voided, how do we say the benefits still outweigh the detriments?”
After Abrahams read his speech, Selectboard Chair Bannon told Abrahams that he disagreed with him. “Ed, with my last breath I will defend your right to your opinion,” Bannon said. “I will never agree with your opinion on this, but I will defend your right to it. I respect what you said, but I think by our findings and conditions, we’ve done a really good job. I do think that this is a very slippery slope and there’s no right answer here. I respect your opinion, but I think almost all of what you said I just don’t agree with.” Bannon did not say, specifically, what it was in Abrahams speech with which he disagreed.
Without further discussion, the motion to approve the special permit was approved by the board in a 4-1 vote, with Abrahams voting against the town granting the special permit.
The final approved findings of fact and special permit conditions were not available online at press time, but the draft documents that were reviewed by the board during the public hearing on April 10 are available on the town’s website.
After the meeting, Selectboard member Abrahams sent The Berkshire Edge a copy of the speech he made at the April 10 public hearing, which is available here.
