11/28/2018 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS MEETING MINUTES NOVEMBER 28, 2018 Attorney Wall disagreed with that opinion and asked for a continuance to prevent a final decision on that matter because the Town Attorney also suggested that the applicant or the property owner might be able to get relief for a Written Finding under Section 174-24 (K) determining that the use is substantially similar to other allowed uses and not substantially dissimilar to prohibited uses. Attorney Wall then asked for a continuance of the appeal simply to prevent a decision from being entered which would have necessitated an appeal. Attorney Wall continued that his client operates a helicopter and a helipad on his 9 acre property located at 540 Great Neck Road South. The Haney family has owned the property for 34 years. Mr. Haney learned to fly helicopters when he was in the military, and now uses his personal helicopter called a Robinson 44 which seats up to four people and weighs 1,500 lbs., and is powered by an internal combustion b cylinder engine. In 2007, when he first started to use the helicopter, he got approval from the FAA for the landing zone, and also from the Massachusetts Aeronautics Division. He constructed a small gravel landing with a windsock for the helicopter. Three years later, in 2010 a complaint was submitted to the Building Commissioner for the use of the helicopter,and the Building Commissioner issued a cease and desist order. Mr. Haney at the time, responded by pointing out that the law in effect at the time was such that municipalities could not enforce their zoning bylaw against aeronautical uses unless the bylaw had first been reviewed and approved by the Massachusetts Aeronautics Division and the Town of Mashpee bylaws.Essentially,the use is immune from enforcement. So the cease and desist order was rescinded. The use continued until present, but in January of this year (2018), the Supreme Court of our State overturned the law, and said that municipalities may now regulate the use of Aeronautical operation of the helicopter which is still subject to Massachusetts Aeronautics rules, but the parking and operation of the helicopter on the ground is subject to zoning. A new cease and desist order was issued by the Building Commissioner, and took an appeal. There are three arguments; the first argument is that this is a very traditional preexisting non- conforming use. When the use began, it was not unlawful because it was immune. The Town's zoning bylaw could not be enforced against the use of the helicopter so therefore the use was not unlawful, it was therefore lawful and now it is unlawful because of the change in the law. He contended that it lawfully commenced use of the property that has continued to present day, and has become nonconforming because of a change in the law. Attorney Wall said his second argument is a nuance of the first argument. He gave the Board and Building Commissioner Massachusetts case laws. When there is a use or structure that exists because of an immunity and that immunity goes away,the use becomes pre-existing nonconforming. He referred to two examples; the Cambridge Courthouse which is a tall 100-plus story building that was built by the government and is immune from zoning because it's a court house. The building became "sick", and the Commonwealth abandoned the building and went up for auction for private use, and a private developer wanted to purchase the building to put in retail, condos, etc., but that person who invested in this building wanted to know if he could continue to use that building. It went to the land court and the supreme judicial court, the court held that the use or structure that was immune then loses immunity, because the government left the building now the building becomes pre-existing nonconforming. 2