Legal fees mount in heliport lawsuit
The Haines Borough has spent more than $13,000 to date defending itself in a lawsuit filed by a sister company of Southeast Alaska Backcountry Adventures over the municipality’s denial of a heliport at 26 Mile.
Borough attorney Brooks Chandler and Big Salmon Ventures attorney Daniel Bruce have been sparring 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 argues.
Subjectivity is a big issue in the case. Bruce maintains the planning commission “preserved subjectivity” when it declined to develop a noise ordinance using the $41,300 helicopter noise study the assembly had authorized.
The assembly sent the noise study to the commission in November 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.”
One requirement that must be met is that the proposed use not create “undue noise,” which borough code fails to define, Bruce wrote.
In a response, borough attorney Chandler argued the phrase “undue noise” is not unconstitutionally vague. “Determining whether a proposed use of property avoids ‘undue noise’ requires the application of judgment by the planning commission based on facts regarding noise levels of a proposed use,” he wrote.
The noise study, which measured actual use of the site as a heliport, backed up the commission’s decision, Chandler said.
The study “provides a reasonable basis for the commission’s decision (that) the proposed heliport at this location fails to avoid undue noise. This is especially true given the proximity of (the heliport site) to previously established residential uses of real property and the value placed on ‘peace and quiet’ by local residents, as evidenced in public comments and testimony.”
The case has seen little movement since the end of May, and Bruce this week said he didn’t know when it would be resolved.
“At some point the court may or may not set it for oral argument, then each side would have 15-30 minutes to argue the appeal and the court would then take it under advisement (and make a decision),” Bruce said.
If the case is not set for oral arguments and neither side requests time to file additional briefs, the judge has six months to make a decision, he said.
According to chief fiscal officer Jila Stuart, the borough has spent about $13,320 in legal fees on the case.