Great Barrington — Residents packed Town Hall for a public hearing on Monday, February 27 on a special permit application made by Berkshire Aviation Enterprises, the company that owns the Walter J. Koladza Airport. The hearing was held during the regular Selectboard meeting.
“This is the biggest attendance I have ever seen as a selectman,” Selectboard Chair Stephen Bannon said just before the meeting started. Bannon counted 80 residents in the meeting room, with 40 in the hallway next to the room, and another 300 people on Zoom, with a total of approximately 420 altogether. Residents were alerted to the hearing through multiple posts throughout social media, mostly from a “Save The Airport!” group that has been formed by residents.
The special permit application, which was filed on January 10, lists that Berkshire Aviation Enterprises Inc. is looking for a special permit to operate 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.
By the time of the February 27 public hearing, the town received about 176 pages of written comments regarding the special permit application, along with multiple petitions from residents.
At the beginning of the public hearing, Bannon said that he would only allow public comments from residents, along with the attorneys representing Berkshire Aviation Enterprises and a group of residents opposed to the town granting the special permit. The group, which consists of nearby residents Marc Fasteau, Anne Fredericks, Holly Hamer, and 17 others, previously filed 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 to deny a request from the neighbors of the airport to enforce the town’s zoning bylaw against the airport. The case is still pending in the state land court.
Before the hearing started, Vice Chair Leigh Davis said that she filed an appearance of conflict of interest form with the town earlier in the day. “The reason is that my daughter has recently been admitted into the Air Force Academy Preparatory School, and has expressed an interest in possibly taking flight lessons,” Davis said. “I just wanted to put that in the record. It has nothing to do with me, but because of the timing.”
Selectboard member Ed Abrahams said that he also filled out an appearance of conflict of interest form. “I have a close friend [affiliated with the airport], and they are really like a family member, and I am friends with a few pilots in town,” Abrahams said. “I also serve on a nonprofit board with somebody who lives locally that is openly opposing this permit, but I have no financial interests or family interests with any of them.”
Despite this, neither Davis nor Abrahams recused themselves from the hearing.
Reasons for the special permit
The airport, located at 70 Egremont Plain Rd., was built in 1931, right before the town adopted a zoning code. The airport’s location was originally a potato field, and it is located in a residential zone, making it a preexisting nonconforming use under the town’s zoning bylaws.
Attorney Dennis Egan, with law firm Cohen Kinne Valicenti Cook of Great Barrington, represented airport owner Richard Solan at the public hearing. “The reason we’re here this evening is because of a small group of opponents of the airport that filed the lawsuit in Massachusetts Land Court,” Egan said. “The goal of that lawsuit is to turn the clock back to 1932. The allegations in the lawsuit are that any improvements that were made post [implementation of town zoning bylaws] on March 31, 1932, are a violation of the law. The airport’s position in the lawsuit is that we are preempted by federal and state law from those regulations.”
Egan said that the special permit application is an attempt by the airport company to “voluntarily submit ourselves” to the town’s zoning regulations. “By filling out this application, we are submitting ourselves to the zoning bylaws of the town to prepare to preserve [the airport’s] rights to defend itself in the land court case,” Egan said. “We’re not here because we have to be here. We’re here because we feel [the special permit] is a reasonable resolution to this issue. It will save the taxpayers of Great Barrington and the owners of the airport a great deal of money. It’s important to note at the outset that this permit application is not about expansion. It is about existence. It is about what you see at the airport is what you get and what we are asking you codified as a legal use.”
Egan said that the three main activities at the airport are flight operations, aircraft maintenance, and flights. “That’s what existed at the airport’s founding in 1931, and that’s what exists now,” Egan said. “We are asking this board to make a determination that those activities be allowed to continue. Furthermore, as far as the application, the airport has voluntarily put forth conditions and asked [the Selectboard] to put it on the permit. In the past, there have been concerns that by granting a special permit, this board will essentially open up a ‘pandora’s box’ of uncontrolled expansion. That is antithetical to Massachusetts law, and, in this case, the board has the right to grant a permit with reasonable conditions.”
Egan said the conditions that the airport would agree to, as part of the Selectboard approving the special permit, would include: no continuous takeoffs and landings after 8 p.m.; no continuous takeoffs and landings during the summer after 7 p.m.; and on Sundays, no continuous student take offs and landings before 9 a.m. “There will also be no helicopter flight schools with respect to Black Hawk helicopters,” Egan said. “The airport shall use its best efforts to work with the United States Army to limit training activity at the airport. It should be known that the airport has no control of the current training activity. All we can do is seek the assistance of the Army.”
Residents speak out
Chairman Bannon gave each resident three minutes to speak at the public hearing, starting with town Board of Health Member Ruby Chang. “I want to say that I would like to see an independent environmental assessment paid for by the airport, indicating that there is no danger to the aquifer that is right by it,” Chang said. “This aquifer supplies all of the drinking water for Great Barrington.”
Earlier at the hearing, Egan spoke about environmental concerns surrounding the airport’s operations. “With respect to potential lead into the soil, naturally occurring background lead is 15 to 40 parts per million,” Egan said. “In 2017, a soil analysis was done in six different locations at the airport, two of which were located in locations known as runoff areas. It’s important to note that the runoff areas are areas where the aircraft engine is put through its paces at 2,000 RPM. Of the six samples that were taken, the highest came back at a level of 21.7 parts per million.” Egan added that a water analysis was conducted in 2017 and “came back with no actionable findings.” He also explained that “the Great Barrington water district regularly tests the water and has not found any actionable findings.”
Resident Eunice Agar, who lives near the airport at 20 Egremont Plain Rd. and has an artist studio near her house, spoke in favor of the special permit. “During my entire time when I’m in my studio or in my house, I never hear the planes,” Agar said. “The only time I hear them is when I’m sitting on my back porch in warm weather. The planes don’t make any more noise than the trucks going by. I urge you to consider how important the airport is for the town and allow them to continue to operate according to the same parameters that they’ve been doing all along.”
Another supporter of the airport who spoke was Elizabeth Shaker, who said she is part of a local citizen’s group dedicated to saving the airport. “We should be celebrating this airport instead of wasting time, money, and precious life energy on such a contentious project,” Shaker said. “There’s so much fear-mongering and distortion of the facts and evidence and it has been so divisive. This is part of the community and it’s important for the entire surrounding area. The opponents want you to believe differently. They say the special permit will allow the airport to expand. But you all know that that’s something that can’t be done unless you go through the proper channels. The airport is an important community asset.”
Attorney Thaddeus Heuer of the law firm Foley Hoag LLP in Boston, who represents Hamer, Fasteau, and Fredericks, spoke against the special permit application. “Denying a special permit will not close the airport,” Heuer said. “It will remain a pre-existing non-conforming use, subject to well-established Supreme Judicial Court precedent on expansion or intensification. I will note you just heard [airport representatives] say something astonishing, that it doesn’t think it’s subject to zoning at all. This hearing is not a popularity contest, it’s about whether [the airport] has met the legal requirements under the bylaw that applies to every property owner in town to obtain a special permit. The law is clear that there is a burden of proof to provide the evidence that it’s entitled to a special permit, not the other way around.”
Heuer contends that Berkshire Aviation Enterprises did not file enough evidence to support the approval of the special permit. “It’s objectively clear from the application that they have not submitted any new evidence to support the exact same request for a special permit that this board unanimously denied two years ago,” Heuer said. “Their contention that they meet the six special permit requirements is cursory and is less than a page. There’s no supporting documentation. But more importantly on most of those six requirements, the Selectboard already made written findings in 2020 that the airport didn’t meet them. So since nothing has changed, the Selectboard has no legal basis on which to find the exact opposite.”
Heuer argued that the proposed conditions of operations for the airport are “legally illusory” under a special permit approval. “That is because [the state’s Aeronautics Commission] expressly told the town in 2020 that those conditions, including hours and operation limits, are pre-empted by federal law,” Heuer said. “But even if the current owners voluntarily comply, and as we know, they already have problems complying with their existing voluntary noise protocols and flight paths, nothing prevents a subsequent owner from ignoring them. It’s not just about granting the permit tonight to these applicants, but the aesthetic goes with the airport going forward for anyone else.”
Heuer went on to add that, in the company’s application, instead of explaining how it would comply with Section 7.2 of the town’s zoning codes, the company “is literally demanding that the Selectboard simply ignore it or rewrite it so it says something else.” Heuer explained, “The important part for you to understand is that the town, the Selectboard, the Zoning Board, is defending the validity of section 7.2 in land court right now.”
After the Selectboard spent time listening to both supporters and opponents of the airport, the board scheduled to continue the public hearing on Monday, March 13 at 6 p.m. at Town Hall and via Zoom. The board did not close off public comment about the special permit at the February 27 hearing and continued it to the March 13 hearing.
