GREAT BARRINGTON — The Zoning Board of Appeals voted unanimously last night to uphold a decision by zoning enforcement officer Edwin May to deny a request from neighbors of the Great Barrington Airport to enforce the town’s zoning bylaw against the airport.
At issue is the fact that the Walter J. Koladza Airport, as it is officially known, is located in a residential zone, but was built just a few years before Great Barrington first adopted a zoning code, so the small airport is a preexisting nonconforming use, meaning any expansion of its use requires a special permit from the town.
The request for enforcement came from Thaddeus “Tad” Heuer, a Boston attorney who represents three nearby residents — Holly Hamer, Marc Fasteau and Anne Fredericks — all of whom live on Seekonk Cross Road.
See Edge video below of last night’s meeting of the Great Barrington Zoning Board of Appeals:
The request for zoning enforcement appears to have been prompted by a recent application from the airport to demolish its small office building and replace it with a new one on the same footprint on the airport’s property abutting Egremont Plain Road.
At last night’s meeting, Heuer argued that the airport has expanded its operations considerably since it opened in 1931, but has not received the required approvals from the ZBA and the selectboard.
“The airport is prohibited by law from what it’s done repeatedly since 1932, which is to expand infrastructures that did not exist when the airport first became nonconforming,” Heuer told the board.
Heuer cited case law from the Massachusetts Supreme Judicial Court and insisted that “the airport’s expansion of its preexisting-nonconforming use over the last 90 years far exceeds what is allowed by state and town laws.”
The attorney also cited Chapter 40A, a state law regulating local zoning, and Section 5.2 of the Great Barrington zoning bylaw, which allows the ZBA to award a special permit to alter a nonconforming structure “only if it determines that such reconstruction, extension, alteration, or change shall not be substantially more detrimental than the existing nonconforming structure to the neighborhood.”
Heuer offered research on the airport’s history indicating that at the time the town adopted zoning at town meeting in 1932, the airport had one building and one unpaved grass runway. Now there are five structures, none of which were built with the necessary special permits, and a half-mile paved runway, he said.
As late as the 1940s, there were only a few aircraft at the airport, with no more than several hundred flights per year. Recent filings made by the airport say as recently as two years ago there were 52 aircraft on the field, with 29,810 flights annually. In addition, Blackhawk helicopters occasionally use the airport for night training missions for members of the Army National Guard. Heuer noted that military helicopters weren’t even in production until at least 10 years after the airport opened.
“Under any metric, that is a pronounced physical expansion,” Heuer said.
Heuer acknowledged that there is a 10-year statute of limitations on nonconforming structures after which they cannot be ordered demolished, but the statute pertains only to the structure — not to its use or “unauthorized expansion.”
More recently, airport officials did seek a special permit from the selectboard for six new hangars. In a long, heated battle with neighbors in which the airport withdrew and resubmitted its plans, the board in 2020 ultimately signaled its rejection of the application, in part because of concerns over whether, as the zoning bylaw states, the project’s benefits “outweigh the potential detrimental impacts.”
Zoning enforcement officer Edwin May was asked to elaborate and said he had nothing further to offer beyond what was in his written denial of the request for zoning enforcement. Under questioning from ZBA member Michael Wise, May said the airport has occupied lots of his time — and that of his predecessors — over the years.
“I have a paper box full of public records requests where I would normally have only a folder,” May said.
The airport’s attorney, Dennis Eagan, argued that the airport’s increased operations were not an illegal expansion and that just because Heuer could not find evidence that certain features did not exist previously does not mean that they, in fact, did not.
“You don’t prove a negative,” Eagan said. “‘No evidence’ doesn’t mean that it did not happen … It’s not an expansion.”
ZBA member Steve McAlister, an architect, aired his frustration with the process and wondered aloud why the matter even concerned the ZBA — a situation he termed an “absurdity.”
“It just seems that it is positioned to put the airport out of business,” McAlister said. “Ninety years have gone by and we’re not going to turn the clock back 90 years … I think there’s a way to settle this with the neighbors.”
“I think, in my layman’s view of things, that this is harassment,” McAlister continued. “I’m ticked off because I feel this is a waste of this board’s time.”
With that, McAlister voted to deny the neighbors’ appeal for enforcement along with Wise, Carolyn Ivory, Madonna Meagher and chairman Ron Majdalany.
