Haines Planning Commissioners were split Thursday night about whether to grant a 35-Mile helipad owner’s appeal for year-round unlimited helicopter landings. In a 4-3 vote, the commission ultimately rejected the argument that the landowner has a right to unlimited use.
The saga of the 35-Mile heliport continued at Thursday’s meeting, and it’s not over yet. This is the sixth time the heliport has come before planners in some way. At the last meeting, they approved a heliskiing conditional use permit for the helipad, but that’s only for a few months of the year.
Property owners Mike Wilson and Sean Brownell say since the helipad was in operation before the Haines Borough put additional restrictions on heliports, they have a use-by-right, also called a nonconforming use or grandfather rights.
Former acting manager Julie Cozzi, with the advice of the borough attorney, agreed – but with conditions. Cozzi said since the heliport had been used on average five to 10 times a year, the landowners’ use-by-right was limited to that level.
Wilson told commissioners that he wanted to use the heliport in the heliskiing off-season for things like transporting people to Constantine’s mineral exploration site. He said he was not planning on using it for helicopter tourism.
“Ten landings a year may be fine for the first couple of years,” Wilson said. “But ideally there may be times when clients want to do something, to order a helicopter…but to have the option and to have the ability to use that area as it has been used in the past.”
The commission wasn’t debating whether Wilson has a use-by-right. They were debating whether that use-by-right is limited to the historical level of activity.
Commissioners Heather Lende and Rob Miller said they were reluctant to overturn the manager’s decision. Here’s Miller.
“When someone claims grandfather rights, what are the limits on that?” Miller said. “And what [the manager and attorney are] saying, which seems real logical to me, is you’re claiming use based on historical past. Then how you used it in the past is the limit.”
Commissioners Brenda Josephson and Donnie Turner disagreed. They said the borough can’t limit the level of use on a property which has a use-by-right. Here’s Turner.
“I don’t see anything in the code that says the amount of business you can do,” Turner said. “That’s what we’re doing. If he has a heliport, even the lawyer says he can have a heliport. You read in the code, the nonconforming thing is designed to protect the property owner from exactly what’s happening.”
But Miller said there’s a huge difference between 10 flights and unlimited flights.
“Ten flights a year is not the same as 1,000 flights a year. It is qualitatively different,” Miller said. “And it’s almost a form of sophistry to suggest one should be able to transition to the other with no restrictions of any kind.”
Josephson said putting a restriction on the level of use is ‘arbitrary and capricious’ and goes against protecting the rights of citizens. But chair Rob Goldberg said the commission also needs to consider the citizens who could be impacted by an increase in helicopter activity at 35 Mile.
“We’ve heard testimony from people who say they’ve moved here from Skagway or Juneau to get away from the helicopter noise,” Goldberg said. “And we have to listen to them too, they live here. So I’m very reluctant to just open this up for year-round use.”
However, Goldberg said, he is open to considering a conditional use permit for a higher level of year-round use. He said the CUP process would give residents a chance to participate in a public hearing.
When it came to a vote, Goldberg, Miller, Lende and Lee Heinmiller voted to uphold the manager’s decision. Josephson, Turner and Larry Geise voted against it.
Heliport owner Wilson now has a couple options. He can appeal the commission’s decision to the borough assembly, or he can go ahead and apply for another conditional use permit. Wilson said he already had a meeting with the borough manager about applying for a CUP.
So, the 35 Mile heliport is likely to come before the planning commission for seventh time in the near future. The next meeting is April 14.