PITTSFIELD, Mass.— With a smack of a gavel, the court proceedings began on Thursday for the ongoing litigation between the town and Berkshire Concrete.
About a dozen community members attended the Rule 12 hearing at Berkshire Superior Court, with several wearing their “Stop the Dust” pins. The proceedings started at 2 with several cases on the docket. One by one, the courts went through them.
Berkshire Concrete was the last on the list, and by the time 3:32 p.m. came along, a few of the Berkshire Concrete attendees had left, but 10 still remained, including Select Board member Antonio "Tony" Pagliarulo and clean air advocates James "Jimbo" Doucette and David Pugh.
Berkshire Concrete’s attorney Jaan Rannik, of Cohen Kinne Valicenti and Cook LLP, and the town’s attorney Alexander Weisheit, of KP Law, attended the meeting virtually, with Judge Jane Mulqueen presiding.
The town moved to dismiss two of the counts filed against it by Berkshire Concrete — breach of contract and promissory estoppel, a legal doctrine that allows someone to recover damages when a promise is broken, even if a formal contract does not exist. Weisheit had not come to a determination at the time of the hearing.
Berkshire Concrete claims that as a direct result of the town's breach of contract, it suffered damages of no less than $1.9 million and will continue to incur additional damages.
In its lawsuit, Berkshire Concrete, a subsidiary of Petricca Industries, seeks permission to operate on its entire property and to have any future permit applications granted — unless they violate previous permit conditions and fail to fix them after formal written notice, or if the Mine Safety and Health Administration finds a public health danger requiring new restrictions.
It also requests that if a future renewal is denied for a violation and Berkshire Concrete disputes it or claims it didn't have time to fix it, operations can continue until a final decision is made.
The company claims the town breached its 1992 contract with Berkshire Concrete and the board exceeded its authority in denying the special permit.
During the hearing, which lasted about 10 minutes, Weisheit argued that the 1992 decision by the courts was not a contract but a special permit with conditions, which Berkshire Concrete has not followed; hence the town’s counter suit.
He also highlighted how, since the 1992 decision, the permitting authority has changed from the Board of Selectmen to the Planning Board, which denied Berkshire Concrete's special permit in March 2026.
Even if it were a contract, Weisheit argued that there is no way for Berkshire Concrete to prove breach of contract.
Additionally, it would not be entitled to damages because the town is statutorily exempt from damages for breach of conditions related to a permit or other damages arising from the issuance of a permit, he said.
The underlying dispute here is the detrimental impact Berkshire Concrete’s mining operations are having on the abutting neighborhoods, Weisheit said.
Berkshire Concrete’s lawsuit against the town outlines the long history of its operations in Dalton, which Rannik briefly alluded to but did not go into detail about, as the judge was already familiar with the issues.
Berkshire Concrete has been operating in Dalton dating as far back as at least 1947, before the town's adoption of its zoning bylaws in 1951, which requires a special permit as a precondition for certain uses of land, including the removal of gravel, loam, sand, or stone.
The town has had an ongoing and, at times, contentious relationship with Berkshire Concrete, with prior lawsuits and negotiations to determine what the excavation company is allowed to do based on grandfathered rights.
In July of 1992, the town issued a cease-and-desist letter, alleging Berkshire Concrete violated zoning bylaws.
To address the legal disputes, the town and Berkshire Concrete agreed that the company would obtain a one-year renewable special permit with specific conditions, including limited hours, restoration requirements, and designated traffic routes. More conditions were added in 1994 after appeals.
Rannik described this issue before the court as “narrow”, arguing that an agreement was made during the prior litigations in the 90s that extends beyond the existence of a permit.
The agreement was that Berkshire Concrete would apply for a special permit yearly, which would be issued again if it abided by the conditions set during litigation.
Rannik claims Berkshire Concrete has followed the conditions and that the town breached the contract by denying the special permit.
He also argued that the statutorily exempt Weisheit referenced does not apply to this case because it is more than a special permit; it is an agreement that the town and Berkshire Concrete made during litigation.
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Lanesborough Select Board Tables JMJ Negotiations
By Breanna SteeleiBerkshires Staff
LANESBOROUGH, Mass. — Tensions swirled at Monday's Select Board meeting in light of conversations to dissolve the Baker Hill Road District.
The meeting started with public comment, including from Tim Grogan, development consultant for JMJ RE Holdings, who emphasized that without a dissolution of the road district, the potential sale and redevelopment with the mall would fall through.
He said the town expects about $760,000 in fiscal 2027 from the road district plus normal taxation. With redevelopment and no district, total income is projected to be around $1.1 million by 2029, he said, implying about a $300,000 annual surplus versus the status quo. He said he provided those calculations to the board.
Keeping the road district alive is not a compromise, Grogan said, referring to a proposal floated by the board last week to facilitate the mall's sale and work with the road district to reduce its tax assessment.
"This mentality by previous select boards and the Baker Hill Road District is what led the property to its current condition," he said. "Further, the Baker Hill Road District has every motive to make this compromise work, as their alternative is dissolution and non-existence. This practice is inherently in bad shape, and JMJ will not entertain any circumstance where the Baker Hill Road District continues to exist.
"JMJ is inclined and trying to be treated like any other business in the town, and taxes such just like every other major shopping center in the state, keeping the Baker Hill Road District in place will continue to discourage redevelopment, and in this moment will break the delicate balance that has been negotiated between JMJ, Lanesborough, and [buyer Cypress Equities] to the point where the project is no longer feasible, and the only choice is litigation."
Lyndon Moors, chair of the Finance Committee and recent appointee to the district's Prudential Committee, spoke personally in favor of keeping the district. He said it currently provides more than $500,000 per year to the town, which helps fund two police officers, fire and police vehicles, and over $100,000 per year for the Department of Public Works. He said losing that revenue could significantly impact town services and future budgets, especially as free cash may be lower going into FY28.
He suggests downsizing the district's budget to reduce the tax burden on the mall and Target, which owns its building separately, while still maintaining revenue for the town. The board should let the litigation play out and not be too hasty in making decisions, he said.
"I think it is unlikely that we will see $1.1 million from the mall property without Baker Hill Road District in FY29. That's what I just heard. We are in FY27 right now. I think that's very unlikely two fiscal years from now, that we are enjoying the tax benefits to the tune of $1.1 million. So I would encourage the Select Board to put on the brakes a little bit, continue to be thoughtful, responsive, deliberative, and let's continue to do what's best for the town," Moors said.
Moors mentioned a Facebook post posted by Blake Mensing, one of the owners of JMJ, on the town group with documents that could be relevant to the meeting, saying it looked as though he was trying to negotiate in public. Mensing said it was an exercise of his First Amendment rights and an attempt to provide transparency to residents, especially since JMJ's opportunity to speak is limited to public comment.
"The purpose of it was to see if we could work with them to lessen the special tax burden that the district imposes on the owners, all owners of the mall properties, and while keeping the special tax district in place to preserve the police, fire, police car, and road maintenance services that we received from that special taxation," she said.
Baker said the district is also interested in giving the road to the state, if the state allows. They also reviewed the district's $800,000 budget and discussed reductions but have not made concrete decisions.
"We find a great deal of interest in helping cut the budget there so that it would reduce the tax burden as well," she said. "So we're not ready with specific numbers yet on that, but there's certainly the willingness to make some major cuts into that budget."
Chair Deborah Maynard said she wants to dissolve the BHRD and that she would not want them to go ahead with the discussions.
For this months Nonprofit Spotlight, iBerkshires sat down with the Elizabeth Freeman Center's Executive Director Divya Chaturvedi to give us an insight into the organization. click for more
One version is that there are many available jobs, but employers have a hard time finding workers to fill them. On the other hand, we also hear that Berkshire County does not have enough good jobs, and people have to move elsewhere because of poor job prospects here.
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The Historical Commission is giving people the opportunity to bring a piece of the town home with them through the sale of hand-thrown and stenciled, colonial-style pottery featuring the Dalton's name and incorporation date. click for more
iBerkshires joined Zustra on a hike at Wild Acres trailhead, where we released two adult eastern painted turtles, one yearling eastern painted turtle and one yearling common snapping turtle.
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Myles Morrison-Gould struck out seven and walked just one in a complete-game, 3-0 win over Holden that sends the Pittsfield Little League All-Stars into next week’s four-team State Tournament. click for more