March 1, 2012 | Vol. 42 No. 8

SEABA’s heliport permit appeal nixed

The Haines Borough Assembly voted 5-1 on Tuesday to uphold a planning commission decision denying Southeast Alaska Backcountry Adventures a permit to use its 26 Mile property as a heliport.

In a split 3-3 vote in January, the borough planning commission rejected a conditional use permit for a heliport at .6 Mile Chilkat Lake Road. SEABA appealed the decision to the assembly in February.

SEABA said it will examine more options and after the assembly issues its written report of the decision at its March 6 meeting, will decide whether to take the issue to court.

The appeal was the first item on the assembly meeting agenda and the only major action item completed. After its vote at about 10:30 p.m., the assembly adjourned until Wednesday night.

In hearing the appeal, Mayor Stephanie Scott said the borough was acting in a “quasi-judicial” capacity. The assembly heard testimony from SEABA’s attorney, Daniel Bruce, and from borough manager Mark Earnest on his recommendation to not allow the permit. Then the assembly heard about an hour and half of public comment.

The debate turned on the eight criteria required for issuing a conditional use permit. Earnest had recommended to the planning commission to not approve the conditional use permit because he said the heliport would cause undue noise, be harmful to the general health and welfare of the community by disturbing the peace and quiet of nearby property owners and would not align with the borough’s comprehensive plan.

But SEABA attorney Bruce said he didn’t believe Earnest had presented any “findings” in his recommendation. On the other hand, he said, SEABA had presented concrete information on decibel levels and comparisons to other operations and businesses in the 26 Mile area that produces noise, including a sawmill, gravel extraction and commercial tour buses.

“There was no analysis in the manager’s report of sound or effects on homes,” Bruce said. “I would challenge one to make a factual finding that here is a significant impact on adjoining property owners.”

He also emphasized that it is an area that has not been zoned residential but is an area where mixed use is encouraged by the zoning.

Public comment spanned the gamut of support, or not, for the permit. The only seemingly consensus during public comment was Erica Merklin’s comments that the issue has divided the neighborhood at Chilkat Lake Road.

“It has become very divisive and hostile,” she said.

Borough attorney Bruce Falconer advised the assembly that it had the option to deliberate in private. Assemblyman Norm Smith made the motion to deliberate privately and the assembly unanimously agreed.

“There’s emotions involved here so it can get rather personal,” Smith said Wednesday. “It’s not an easy thing.”

Assemblywoman Debra Schnabel said she would have preferred to deliberate in public, but the privacy made it a more comfortable discussion.

After two and half hours of deliberations, the assembly allowed the dozens of members of the public back into assembly chambers. Borough clerk Julie Cozzi took a role call vote. Assemblyman Jerry Lapp hesitated before issuing the only no vote. He said later he was still deciding which way to vote up until the last few moments.

“I just decided I felt like they deserve permit based on the criteria set forth in the conditional use permit,” Lapp said. “Personal opinion put aside, because I really don’t think a person, out of respect, in that much of residential area should conduct such an operation, but they did, I believe, meet all the criteria for that CUP.”

Assemblywoman Debra Schnabel said after going into private deliberations, she offered the idea of a trial period for the permit.

“I thought it was important to see if the claims of the neighbors were valid,” she said. “The people that are opposed to it are imagining what it would be like to have a heliport there. I would have liked to have had the opportunity to test the fears of the community that this is incompatible land use.”

Smith said he wasn’t interested in Schnabel’s proposal because it didn’t offer a firm decision.

“This was a vote on yeh or nay,” he said. “Not yea or but…you can’t do that. The thing would get thrown out of court. You can’t change the condition. You’re supposed to be making a decision on a condition.”

Smith supported upholding the planning commission decision because, he said, operating a heliport there would go against the borough’s comprehensive plan to be too disturbing to local residents.

“I think there was a preponderance of evidence that the neighborhood did not want this to happen,” he said.

Assemblywoman Joanne Waterman thought Schnabel’s proposal was still a decision on the conditional use permit, even if just a temporary option.

“In order to do that, you still have to grant a CUP, and to grant a CUP they have to meet the criteria,” Waterman said. “We went through the eight criteria, one by one, and they just didn’t meet them all.”

After her proposal for a temporary permit didn’t take hold, Schnabel said it appeared that the assembly was going to be locked in a 4-2 vote, with her voting in the minority. Due to procedural rules, the assembly was required to vote on the matter with a “super majority,” or at least five of six members in accordance. A 4-2 or 3-3 vote would have meant an impasse, and the planning commission’s vote would have stood.

But Schnabel said she wanted to provide a supermajority vote on the issue since the issue will likely go to court.

“I think it’s a terrible place to put a judge,” she said. “I had to decide, ‘Do I want this to go forward to the court where a judge can see a yes or no from the assembly, or do we want them to make this decision for us?’ I think there should be something there for the court to adjudicate.”

Scott Sundberg of SEABA issued a statement after the meeting.

“We are very disappointed at the decision the assembly came too and that the decision to not approve the CUP with adjusted amendments for operations or a willingness for the borough to come to the table is a disappointment and is unsettling. We clearly feel that we have the right in the general use zone to use our property as allowed under the code. The fact they are holding us hostage under Title 5 is unfair and we feel illegal.”