7/11/2018 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS MEETING MINUTES JULY 11, 2018 Attorney Brian Wall with an office in Sandwich, MA represented the petitioner William Haney who was also present. The application is an appeal of a cease and desist order issued by the Building Commissioner which orders Mr. Haney to cease and desist use of his property for landing a private helicopter. Mr. Wali said he has represented Mr. Haney for other projects in Town. He obtained a helicopter license and currently flies for recreational purposes. The property issue at 540 Great Neck Road South is a 9 acre parcel of land that has a single- family dwelling. Mr. Haney purchased the property in 1984. In 2007 sought to construct the helipad and determination of FAA (Federal Aviation Administration) for suitability of the site, and obtained the determination that he could have this land area. He also obtained approval from.the Massachusetts Department of Transportation Aeronautics Division. Mr. Wall said that Mr. Haney constructed a gravel landing area with a windsock and a storage shed for the helicopter and began using the helipad. Mr. Haney uses the helipad during the summer, and flies in and out about 2-3 times a week. In 2010, a neighbor complained, and that the Building Commissioner at that time issued a cease and desist order. Mr. Haney responded to that order by bringing to that Building Commissioner's attention the law of Massachusetts as it was then existing, that a Town was not allowed to enforce its zoning bylaw against private landing areas that were approved by the FAA and the Massachusetts DOT unless their bylaw had been reviewed by the Department of Transportation and approved. The case law states that Massachusetts has essentially made a policy determination that it wants to foster use of the airways for private aircraft. A determination very similar to exemptions for education, religious uses or sober houses, which is basically immune from zoning. That Building Commissioner confirmed this by talking to the Counsel for the Department of Transportation and agreed that was the law and the 2010 cease and desist order was withdrawn. Mr. Haney has continued to use the helipad since then until March of this year the Building Commissioner issued another cease and desist order because of a complaint by a neighbor, and in the cease and desist order the Building Commissioner sited a change in the law that came about by a decision by the Supreme Judicial Court. Mr. Wall said that the first argument is regarding pre-existing, non-conforming use. He said the helipad was constructed in 2007, and has been used continuously since 2007, and mentioned that the lave at the time the helipad was created,municipalities could not enforce the zoning bylaw in a manner that would prohibit a private land owner from creating and using a private restricted land area unless the bylaw had been approved by the Aeronautics Division. 4