Borough planning commissioners Thursday delayed voting on a tour operator’s eight-year push for a permit to construct a commercial heliport near 26 Mile Haines Highway, opting to first consult with the borough attorney.

The application, brought forward by Big Salmon Ventures co-owner Scott Sundberg, has been repeatedly denied by both the planning commission and borough assembly since 2011.

In 2014, the borough assembly granted the company a temporary permit while it commissioned a $41,300 noise study of take-offs and landings near the proposed heliport site.

The denial was later upheld by the superior court of Alaska in 2016 for failing to meet requirements for a conditional use permit (CUP), including parameters to insure the health and safety of residents. The commission and the judge ultimately asserted that a heliport within a mile of homes would create “undue noise” for neighbors.

This year, Sundberg reapplied for the same conditional use permit citing “substantial changes” in the neighborhood. He listed the development of neighboring properties: George Campbell’s private airstrip, Erika Merklin’s commercial marijuana grow, and the University of Alaska’s proposed timber sale on adjacent property (that has since been postponed due to Chinese tariffs) as reasons to reconsider.

On Thursday, 11 residents, many who live within a mile of the proposed site and have long been critical of the proposal, passionately disagreed.

“It’s a harder life out the highway” Shanah Kinison said. “We drive often on unplowed roads and we get home and it’s peace and quiet and that’s why we live here. SEABA refers to a heliport fitting our existing history and this confuses me. I’m not sure if I’ve heard gravel being separated on my property, but I’m positive I don’t hear marijuana plants growing. Logging is planned for an unknown future and short-term still will never fly over my house. Campbell’s airstrip has definitely given us sporadic air traffic…but still an airplane is never going to compare to the percussion of a helicopter.”

“We’ve been doing this a long time, and nothing is going to change the volume of a helicopter,” Mario Benassi said.

“Helicopters are no quieter today than they were in 2015,” neighboring land owner Jessica Plachta said. There’s neighborhood noise and then there’s high-impact industrial noise, and they’re two very different things.”

Nicholas Szatkowski said it was inappropriate for the commission to rehear a permit that was already settled, and questioned why the borough manager accepted the application and recommended the commission approve it.

“The principle of res judicata, it’s a fundamental legal principle. It means something has been decided,” he said. “It’s the same proposal that has been denied six times at planning commission and borough assembly hearings because it does not meet the requirements of the borough law. This denial was upheld by the superior court of Alaska. To allow the same application to go forward abuses the public process.”

One resident and neighbor, Campbell, wrote a letter of support that Sundberg read at the meeting. Campbell said winter tourism was a need outlined in the Haines Economic Development Corporation’s five-year plan, and that a heliport proposal was “extremely timely and very much in line with what (94 percent) of Haines’ residents favor— more winter and independent tourism.”

Commissioners Rob Goldberg and Lee Heinmiller, who were on the commission when the original permit was denied, said that the issues they had before with the permit still exist now. “One thing that hasn’t changed in this applicant is that the applicant is proposing to fly helicopters from the same property,” Goldberg said. “The other thing that hasn’t changed is that there are many residents close to the proposed heliport.”

The Federal Aviation Administration sets a 65-decibel threshold, above which residential land use is deemed incompatible.

Using an LMax metric that captures the maximum sound in a specific moment, the 2015 noise study found that the decibel reached a peak of 104 decibels at the heliport, 94 decibels at the closest property, and 77 decibels on Chilkat Lake Road.

The study also included an average noise exposure level, an annual metric called Day-Night average sound level (DNL) where average noise ranged from 30-51 decibels around the site, and 69 decibels at the heliport.

In the 2015 lawsuit, Big Salmon Ventures contested that it was not clear why the Planning Commission used the LMax results, rather than the DNL. Superior Court Judge Philip Pallenberg found that using LMax was appropriate.

“If a very loud freight train ran past a person’s otherwise quiet home 20 times a day, taking six to twelve minutes to pass each time, the average noise level might remain quite low, but the noise of each passing train might be unbearable,” he wrote. “Given this, I certainly cannot find that it was unreasonable for the commission to use LMax levels, and not DNL levels, to determine whether the project would create undue noise.”

Throughout the meeting, Commissioner Sylvia Heinz repeatedly reminded commissioners to look at the permit application singularly, and without the eight-year history in mind.

Goldberg said accepting an application that has already been decided in court puts the borough in “legal peril.”

“There hasn’t really been anything substantial that has changed,” Goldberg said. “The manager’s decision to rehear the permit is the most egregious managerial error that I’ve seen in 25 years of planning experience.”

Borough manager Debra Schnabel said that the borough should have referred the application to borough attorney. “Quite honestly, I’m ignorant of the res judica,” she said. “It would seem to me that that was a step that we probably should have taken as the administration to pass the application to our attorney for a recommendation.”

Heinz said she would like to get the borough attorney’s opinion on the legality of rehearing a permit already decided by the superior court. Diana Lapham moved to delay a decision until hearing from borough attorney Brooks Chandler.

Lapham, who sat on the assembly in 2015, said she has always been a strong supporter of economic development and recreation, but had to adhere to code. “I have tried to pull a rabbit out of a hat that is not coming out very easy,” she said. “These people time after time after time, the testimony never changes. They don’t want it. You have to follow code, that’s our law.”

The commission also directed Schnabel to ask Chandler if the staff should have accepted the permit application, and to give his opinion on whether the new application adheres to requirements.

Sundberg said the process of the meeting didn’t allow him time to dispel “mistruths” spoken during public comments. He later contested comments about fuel storage, illegal flights through the eagle preserve, and a commissioner’s comparison of helicopter noise to a 747 plane.

“The problem is there’s no fact checking here. I’ve been slandered all night but I haven’t had a chance to rebut any of it,” he said Thursday. He later told the CVN: “In all other CUP discussions that I have attended or have been a part of the applicant has a chance to respond after public testimony, especially if they have been spoken about personally.” Two hours into the meeting, Sundberg threatened to withdraw the permit, but then changed his mind. “I’m going to make you people sit here and go through it,” he said.

Sundberg said that the 30-day delay makes the planning commission’s decision more difficult. “…as more information is going to be gathered that perhaps was not present at the first public comment period, and that as an applicant I am at a disadvantage as it would not be ethical or proper to lobby, or even to publicly speak to commissioners,” he said. “In doing so I would put them at risk if they did not declare ex-parte communications at the next meeting, while all the opposition can lobby and approach commissioners constantly about the issue.”

The planning commission will rule on the conditional use permit at its regularly scheduled meeting Nov. 14 at 6:30 p.m.

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