The Haines Borough Planning Commission will need to decide whether or not they should consider a conditional use permit (CUP) application for a heliport near 26 Mile Haines Highway at its Nov. 14 meeting based on a legal doctrine cited by opponents of the proposed heliport.
Scott Sundberg, owner of Big Salmon Ventures, has four times in the last 10 years submitted the application to the borough to build a heliport that would be used for his heli-skiing company. The planning commission has twice rejected the application, and the Alaska Superior Court affirmed the planning commission’s latest decision in 2015 in large part because the permit would violate conditional use criteria that prohibit a use from creating ‘undue noise.’
Borough manager Debra Schnabel, who recommended the permit’s approval last month, asked the borough attorney if the planning commission’s 2015 decision gives the public “legal recourse against the borough if the permit were approved in 2019.”
In a memo released late Wednesday afternoon, borough attorney Brooks Chandler wrote that granting a CUP for the same use that was denied in 2015 “could be successfully challenged on appeal unless the 2019 planning commission identified significant differences between the 2019 and 2015 proposed uses or surrounding circumstances relevant to the issue of whether the proposed use generates ‘undue noise.’”
“For example, if the commission decides that helicopters don’t make as much noise in 2019 as they did in 2015 but there is no technical evidence showing that to be the case there is a good change the decision would be reversed on appeal,” Chandler wrote.
Chandler said the “meat of the issue” and “the primary consideration driving permit denial in 2015 was the ‘undue noise’ requirement” of borough code.
“For example, perhaps the general ambient background noise has increased significantly due to growth or other ‘noisy’ uses that were not present in 2015. These are all factual determinations for the commission, not legal issues to be determined by the borough attorney. The determinations must be supported by evidence placed in the record before the commission.”
Although Sundberg’s application has not substantially changed, he argues that recent development in the area, including an airstrip, makes the heliport a more compatible use.
After Sundberg’s latest attempt last month, some nearby residents opposed to the heliport’s construction said the borough had no right to again consider the issue. They cited a legal principle known as res judicata, that a matter that has been adjudicated by a competent court may not be pursued further by the same parties, as justification.
Chandler said staff does not have discretion under borough code to “reject an application previously rejected by the commission.” He said that’s the planning commission’s job.
“The role of the planning commission is to address all information that’s placed before it with respect to a particular permit application,” Chandler told the CVN. “Theoretically something could sail through simply because no one opposes it. If somebody gets in front and says, I object to either granting or denying this permit because it’s already been decided, then the commission is required to consider that particular argument.”
He said the planning commission could consider an addition to code that would bar new CUP applications for the same proposed use on the same property for a set period of time following a previous planning commission rejection.
Sundberg reapplied for the permit in April, although he pulled the item off the agenda the day of the meeting. At the time, former borough planner Holly Smith and Schnabel recommended the permit be approved.
Staff wrote that the nature of the area is “trending more industrial over the last few years” since George Campbell constructed an airstrip on his property, another property owner (who opposes the helipad) has a commercial marijuana growing operation, and the University of Alaska announced plans to harvest timber from the area.
“When the airstrip went in, we decided to say, ‘Well, does this change the situation?’” Sundberg said. “You have two very similar activities and noise and location and one is no process and the other has been under legal battle for years. I think a judge on appeal would look at judicata, or look at the situation, and have a different opinion at this point.”
In order for an applicant to receive a conditional use permit, their proposed use must meet eight criteria. The planning commission in 2015 said Sundberg’s permit failed to meet six of those criteria, among them: its use would fail to avoid undue noise; it would negatively affect property values; it’s inconsistent with other uses in the area, and there was significant opposition from nearby property owners.
Resident Nicholas Szatkowski, longtime opponent of the proposed CUP who cited res judicata, said, at its most basic level, the permit application does not meet the criteria outlined in borough code. He said if the planning commission does approve the permit, the borough would risk litigation.
“It’s foolish and against the public interest to take an action that has such enormous legal liability and that goes against the decision of the Superior Court of Alaska and against the long standing and repeated decision of their own planning body.”
In their justification for accepting and recommending approval, borough staff said no evidence existed to prove that it would diminish property values. Schnabel said that “some amount of industrial noise is to be expected” in the area where the helipad is being proposed. She said undue noise can be mitigated, and that conditions on the permit could mitigate such noise occurrences.
In an email to Chandler requesting his advice, she cited Superior Court Judge Pallenberg’s decision that said it was the role of the local government to determine “what sort of community Haines wants to be.”
“These ‘subjective’ determinations about community standards are intended to be made by the assembly elected by the people of Haines, and the planning commission appointed by that assembly, not the court.”
He said that the court’s job was to ensure local government follows borough code, that its decisions are supported by evidence and follow the law, not to “substitute its judgment for that of the local body.”
Schnabel wrote to Chandler that it “could be argued that Sundberg resubmitted his application hoping that a ‘new’ planning commission would make different ‘subjective’ judgements about community standards.”
Chandler said changes in community policy preferences “should first be accomplished through changes to borough code or the comprehensive plan rather than on a case by case basis when acting on requests for conditional use permits.”
The planning commission also rejected the permit application in 2011. In 2014, the assembly, which Schnabel was a member of, voted to approve the permit for one year while the borough conducted a noise study of the area. The study, also a source of controversy, was used by the planning commission and the Superior Court judge in 2015 as evidence that the permitted use would cause undue noise in the area.