Agenda - Planning Commission - 04/05/2018

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Zoning Bulletin February 25, 2018 I Volume 12 I Issue 4 whether land in their communities may be used as a noncommercial private restricted landing area, here a heliport, or whether they may do so only with the approval of the [Division of Aeronautics of the Massachusetts Department of Transportation] because the exercise of such zoning authority is preempted by the [Massachusetts's] aeronautics statutes, G. L. c. 90, §§ 35-52 (aeronau- tics code)." The Background/Facts: Ron Roma ("Ron") was a licensed helicopter pilot who regularly used his helicopter to travel to his "various family homes, business engagements, and other activities," but did not use the helicopter for any commercial purposes. One of those family homes, owned by Roma, III, Ltd. ("Roma"), was located on 1.62 acres of property (the "Property") in a res- idential zoning district in the Town of Rockport (the "Town"). Roma requested and received from the Federal Aviation Administration, a "determination of airspace suitability," recognizing the Property as a licensed private use heliport. Following an airspace review, Roma also received approval from the Division of Aeronautics of the Massachusetts Department of Transportation (the "Division"). In November 2014, Ron flew his helicopter to the Property. Soon thereafter, the Town's building inspector issued an enforcement order to Roma. That or- der stated that a heliport was "not allowed, either as a principal use of the property or an accessory use, in any zoning district in the [t]own," and that the use of Roma's Property for the landing of a helicopter was in violation of the Town's bylaw. The Town building inspector ordered "that the landing of helicopters on the property be stopped immediately" and that the "[f]ailure to comply with this order may result in fines of up to $300 per day." Roma appealed the enforcement order to the Town's Board of Appeals ("Board"). The Board ultimately denied the appeal. The Board explained that, under the Town's zoning bylaw, uses that were "not expressly permitted" were "deemed prohibited." Since the bylaws did not expressly authorize the use of land for a heliport, the Board concluded that Roma's use of the Property for a heliport was not permitted. The Board also concluded that the use of a heliport was not allowed as a " `customarily incidental' accessory use" or as an "ac- cessory use normally associated with a one -family detached dwelling that is not detrimental to a residential neighborhood." Consequently, the Board determined that a heliport would need "some form of approval, variance and/or special permit." Roma appealed the Board's decision to the Land Court. The Land Court judge determined that he was "constrained to apply" prior caselaw (Hanlon v. Town of Sheffield, 89 Mass. App. Ct. 392, 50 N.E.3d 443 (2016) (abrogated by, Roma, III, Ltd. v. Board of Appeals of Rockport, 478 Mass. 580, 88 N.E.3d 269 (2018))), which interpreted the Massachusetts aeronautics code—G. L. c. 90, § 39B—"to indicate that a town may not enforce a zoning bylaw that would prohibit a private landowner from creating a noncommercial private restricted landing area on his or her property, unless the relevant bylaw had been approved by the [D]ivision." Here, the Town zoning bylaw had not been approved by the Division. Accordingly, finding there were no material issues of fact in dispute and deciding the matter on the law alone, the judge granted summary judgment to Roma. © 2018 Thomson Reuters 3