A Juneau Superior Court Judge ruled against a bid to operate a heliport on Chilkat Lake Road, the latest twist in years-long attempt by a Haines outdoor recreation company to land helicopters at 26 Mile.
Judge Phillip Pallenberg’s Dec. 6 decision upheld the Haines Planning Commission’s denial of a heliport permit requested by Scott Sundberg, the owner of Big Salmon Ventures.
Sundberg said he was disappointed by the decision.
“We were looking for a more objective and holistic look at this,” he said. “I’m really disappointed that the judge seemed to allow so much of the borough’s subjectivity to come through in his decision.”
Keys to Pallenberg’s decision were both testimony of nearby residents and a noise study commissioned by the Haines Borough in 2015.
“I find that the noise study, together with the testimony of residents about the disruption caused by helicopter noise and their objections to the proposal, constitutes substantial evidence in support of the decision of the Planning Commission that the project would cause ‘undue noise,’” he wrote.
Big Salmon Ventures, the sister company of Southeast Alaska Backcountry Adventures, in which Sundberg also has an interest, filed a lawsuit in December 2015, appealing the assembly’s decision not to re-hear earlier arguments for siting a heliport near 26 Mile.
The previous month, the Planning Commission denied Sundberg a conditional use permit to develop the project because it did not meet six of the eight criteria required for conditional use. The Haines Borough Assembly upheld the commission’s decision.
The second rejection caused Big Salmon Ventures to sue the borough in Superior Court.
In a notice of appeal filed Dec. 29, attorneys for Big Salmon Ventures said the Haines Borough’s decision on the matter was “based on prejudice, arbitrary and capricious decision-making” and “on improper motives.”
The companies claim the site is critical to development of a year-round “eco-lodge” there. Sundberg has claimed that he developed the site because, since it was in a general use zone, it would be subject to fewer restrictions.
The borough in March 2014 granted a one-year permit at 26 Mile Haines Highway, in part to measure impacts of a heliport to neighboring homes. Officials later commissioned a $41,300 study to track noise levels of the aircraft taking off and landing there.
The Planning Commission itself was divided over the usefulness of the study, which in the end helped win the day for the borough.
For months this year, borough attorney Brooks Chandler and Big Salmon Ventures attorney Daniel Bruce sparred via lengthy legal briefs, with Bruce contending that the assembly erred in multiple ways when it decided on a 4-2 vote not to re-hear Sundberg’s case for the heliport.
The commission and assembly also did not provide sufficient evidence to support the conclusion that the heliport would not meet eight requirements for issuance of a conditional use permit, Bruce argued.
Bruce maintains the planning commission “preserved subjectivity” when it declined to develop a noise ordinance using the helicopter noise study the assembly had authorized.
Last November, the assembly sent the noise study to the commission and asked it to weigh in on whether the municipality needed a noise ordinance, but commission members panned the study as “fundamentally flawed” and “a total joke.”
The lawsuit filed by Big Salmon Ventures claimed that the Planning Commission’s procedure and official decision letter in denying the permit were flawed. Judge Pallenberg dismissed those complaints.
Sundberg said he wasn’t sure if he would appeal Pallenberg’s decision to the state Supreme Court. “In terms of what this means for Haines, we need to make our criteria on these issues more objective,” he said.
“If we’re going to be a sensitive community, in the future we need to make sure that both businesses know what type and level of noise is acceptable in a variety of zoning districts.”
The borough will seek compensation for the $13,000 it spent in defending the lawsuit.