GREAT BARRINGTON — Owners of Walter J. Koladza Airport will not have to apply for a special permit to cover the recent replacement of an old underground fuel tank, the Zoning Board of Appeals has ruled.
In a 4-1 vote on Tuesday, the board upheld Building Inspector Edwin May's decision to allow the 20-year-old fuel tank to be swapped for a safer double-walled model.
The work, which is on airport land that is connected to the town's water supply, was governed by Water Quality Protection Overlay District regulations.
Some of the airport's neighbors appealed May's decision on the grounds that he applied only one bylaw provision that specifically governs replacing old fuel tanks in the protection district. They said a second provision that requires a special permit from the Select Board should also apply.
It was not clear whether neighbors would appeal the ruling.
Neither the fuel tank nor the airport itself would be allowed to be built today above an aquifer. But because the airport predates zoning and its environmental regulations, it is allowed to continue operating. Airport owners Berkshire Aviation Enterprises had already begun to change out the tank when the appeal was filed.
The airport has been pummeled with criticism since its owners applied to the town to build new hangars and to increase some operations in what is a residential/agricultural area. Neighbors and some town officials have also raised concerns about aviation gas and other toxic materials at the site.
But on Tuesday, it was a battle of the bylaws, the parsing of "shall" and "may."
Attorneys for neighbors Joseph Krummel and Marc Fasteau argued that any changes involving hazardous materials in the protection district should go through the more complicated special permit process, according to the bylaws.
Town counsel David Doneski disagreed and said May's decision was right. He said where provisions appear to conflict, the more specific one applies.
Attorney Tad Heuer, a Boston-based zoning specialist, argued the provisions didn't conflict, and he compared them to motor vehicle regulations "that are intended and have to work in tandem."
But the board grew increasingly frustrated as Heuer persisted in his arguments.
Then Planning Board member Jonathan Hankin got up and said had spent several years writing the bylaw with the help of Doneski and Catherine Skiba of the state Department of Environmental Protection.
"DEP approached the town and said we needed protection for aquifers because there was none," he said. "The biggest risk to the aquifer is a single-walled fuel tank."
Hankin said the hassle and expense of getting a special permit might deter tank replacements or removals.
"You want to get them the hell out of the ground," he said. "You want to make it easy."
But Donald Hagberg, the only board member who dissented on the vote, wiped away all the fuss over bylaw clauses, and went straight to the reason they were written.
"It's a shallow aquifer; it's huge and tied to the town water supply," he said. "We know a lot more about water quality today ... [it's] under tremendous threats from different sources. If it requires one more step I see nothing wrong with that."
Heather Bellow can be reached at firstname.lastname@example.org or on Twitter at @BE_hbellow and 413-329-6871.