It appears there will be more heli-skiing litigation on the Haines Borough’s horizon.
Southeast Alaska Backcountry Adventures co-owner Scott Sundberg said he plans to either appeal to the Superior Court Tuesday’s assembly decision not to re-hear his case for siting a heliport near 26 Mile Haines Highway, or file a lawsuit alleging his rights as a property owner have been violated.
The assembly voted 4-2 not to rehear Sundberg’s arguments. Assembly members Diana Lapham and George Campbell were in favor of rehearing; members Mike Case, Margaret Friedenauer, Ron Jackson and Tresham Gregg were opposed.
The planning commission on Nov. 12 denied Sundberg a conditional use permit for the heliport sought by SEABA’s sister company, Big Salmon Ventures.
In an interview after the meeting, Sundberg said he wasn’t surprised by the assembly’s decision, and said he doesn’t fault members for denying to hear the appeal. Sundberg said he believes the conditional use permit process outlined in code is broken, and unfortunately it usually takes litigation to spur the borough into remedial action.
“I think it is just the nature of the code and the events of consolidation,” he said.
On Tuesday, Sundberg told the assembly the commission erred in its denial of his permit application for nine reasons, including that it had failed to give due weight to a $41,300 noise study commissioned by the borough.
He also said planners did not address his plans to construct a $5.5 million “eco-lodge” recreation village around the heliport site.
“My business and what I have been trying to do since my first application in 2011 is establish a business at 26 Mile that is much bigger than having a few vans and a couple people standing around waiting for a helicopter,” Sundberg said. “No one discussed this. No one discussed how this could also positively impact the greater good of the Haines Borough.”
Sundberg also criticized as subjective the commission’s rationale for denying the permit, and its failure to consider the rights of nearby property owners who support his proposal.
“Five out of six property owners that are adjacent to mine at Big Salmon all support what I am doing,” Sundberg said. “We have rights, too, to pursue business, to pursue our style of happiness. And not once was that given due weight.”
The commission’s reliance on “eyewitness” testimony that the company improperly stored aircraft fuel during its operations last winter also was inappropriate, he said.
Sundberg also brought up his contribution to the community through property tax payments. “I just paid over $1.5 million in property taxes – both commercial and private – today in this community. And I’m just getting turned away left and right. What kind of message does that send to people?”
(After the meeting, Sundberg clarified he paid property taxes on $1.5 million worth of property.)
Sundberg accused the commission of being biased, having heard and denied his application three times in about as many years.
“You have a planning commission that has heard this for three or four years, and they have already made up their minds. They made them up three-and-a-half years ago and whatever information you throw at them, they are not going to change their minds,” he said.
Assembly members Campbell and Lapham agreed with Sundberg’s analysis that the commission’s decision – outlined in a document sent to Sundberg Nov. 17 – was flimsy and subjective.
“There are things in here that are generalities,” Campbell said. “I don’t see facts backing up the planning commission’s decision.”
Lapham said Sundberg “should be showed respect and be allowed to see his appeal through.”
Assembly member Friedenauer tried to keep the group on track, reminding them that “facts” and the commission’s “findings of fact” are not the same thing, and that the conditional use permit application process is subjective by nature.
“The planning commission had findings of fact after taking evidence and testimony. Is it necessarily the conclusion everybody on this panel would have come to? Maybe not, but that’s not how the findings of fact work,” Friedenauer said.
“Of course it is subjective. That is how the code is structured and that is how this process is structured, is that there is some subjectivity on behalf of the planning commission. But that is how the code is laid out right now, and if we are looking at how the code is laid out, I can’t find where they didn’t follow proper process in making their decision, whether I agree with the end product or not.”
Assembly member Case said he was able to separate his personal feelings on the issue from the question that was before the group.
“The planning commission has spent a lot of time on this, and I have been to several of their hearings, and I think they did the very best they could,” Case said. “My gut feeling is I would like to see (Sundberg) get his operation going out there, but from an actual procedural standpoint and the way this has gone through the planning commission, I am going to side with the planning commission and vote we do not rehear.”
At the end of Tuesday’s meeting, commission chair Rob Goldberg addressed a motion passed unanimously at the commission’s last meeting, which was to have borough staff look into acquiring property for a public heliport between 25 Mile and 35 Mile.
Goldberg referenced a report completed by the consulting firm Sheinberg and Associates several years ago, which identified the end of Chilkat Lake Road as the best spot for a public heliport.
“It’s away from residences. It is close to the mountains. We were ready to pursue it and then the heli-ski operators told us if we did that, they wouldn’t use it. But I’m thinking we need to revisit this idea,” Goldberg said.
Goldberg suggested the borough acquire a piece of property there – perhaps by trading with the University of Alaska – and incentivizing the operators to use it by offering property tax breaks on any development or eliminating skier day limits.
Most people in Haines don’t have a problem with the heli-skiing industry, Goldberg said. They support the industry, they just don’t support helicopters flying over their houses or siting heliports in their backyards.
“I think if people across the community really support this, there is probably enough support to perhaps pass a bond to make this happen,” he said.
“Frankly, the planning commission is really tired of this conflict,” Goldberg added. “We’ve been dealing with this for years and years and years. The whole community has. And I think there is a solution to this, but we really have to put some effort into it – and maybe some money – and make it happen.”