Barbara A. Boch (“Boch”) wanted to be able to use her residential property in the town of Edgartown, Massachusetts for the landing and takeoff of private helicopters as a use that was accessory authorized by the Edgartown Zoning By-law (“Bylaw”). The Inspector of Buildings issued a cease and desist order. Boch appealed to the Zoning Board of Appeals (“Board”), which upheld the order. The Department of the Trial Court affirmed.
On appeal, Boch argued that the Town was prohibited from regulating the use of the Property as a noncommercial private restricted landing area (“PRLA”) because the Town had never submitted the bylaw to the Commission for approval, a requirement that Boch argued was a condition precedent to any authority of the Town to regulate the use of the Property. The court found that the right of the Town to prohibit the use of the Property as a non-commercial PRLA was not preempted by G.L. c. 90, § 39B. Under the exemption provisions of the fourth paragraph of Section 39B, “this section,” did not apply to “restricted landing areas designed for non-commercial private use” (nor to facilities owned or operated by the federal government). The fifth paragraph provides that a city or town may regulate “an airport or restricted landing area owned by a person,” only if its bylaw or other regulation is approved by the Commission. Boch argued that the exemption in paragraph 4 should not be read to eliminate the requirement for Commission approval of municipal bylaws or regulations intended to regulate “restricted landing areas designed for non-commercial private use.” Boch argued that the exemption for private, non-commercial restricted landing areas in the fourth paragraph was inconsistent with the requirement for approval of bylaws regulating “restricted landing area(s) owned by a person” in the fifth paragraph. The legislative history of G.L. c. 90, § 39B, Boch argued, required a conclusion that the fifth paragraph of G.L. c. 90, § 39B, should be read to require Commission approval of all municipal regulation of privately owned airfields. The court stated that the plain language of the statute, the statutory scheme and the Commission’s regulations implementing the statute, however, did not bear out this argument.
The Court found that the statute as a whole revealed that the intent of the Legislature in adopting G.L. c. 90, §§ 35–52 was to require approval by the Commission of airports, and of restricted landing areas other than those that remain private and non-commercial, and to require Commission approval of municipal bylaws and regulations with respect to such facilities, but to cede to municipalities regulation of the use of land for private, non-commercial restricted landing areas.
Nor was there any validity to the claim by Boch that the Edgartown prohibition on the landing of aircraft in residential neighborhoods interfered with the Commission’s jurisdiction over the regulation of flight. The court noted that there is a difference between regulating land use and regulating flight operations at airports and other facilities. Further, the Court found that the Bylaw makes no attempt to regulate flight operations of aircraft.
Next Boch argued that the use of the Property for the takeoff and landing of helicopters was permitted as a use accessory to her use of the property as a single-family residence. She argued that what was “customary and incidental” for accessory ingress to and egress from residential properties in Edgartown had evolved over the years, to the point that accessing a residence by such recent transportation modalities as jet ski, kiteboard, and Segway personal transporters, was now “customary and incidental.” Thus, access by private helicopter was within the evolving concept. The court stated that Boch was correct that what might be considered a “customary and incidental” accessory use may change as customs change. The court in Maxant recognized this in holding that a private airstrip was not a valid accessory use, the court cautioned that, “we intend no suggestion that a private landing strip may not some day become ‘customary and incidental’ to a residential use.” Harvard v. Maxant, 360 Mass. supra at 440. However, the court stated that nothing in the record suggested that day had arrived in Edgartown. Further, the affidavit provided by Boch did not support a reasonable inference that jet skis, kiteboards, or Segways were actually used for ingress to and egress from residential properties. It did not offer any information from which it could reasonably be inferred that such activity was anything more than sporadic, or that such activity was for ingress and egress rather than for recreational purposes.
These modes of transportation, even if used as asserted, did not justify a conclusion that landing a helicopter has become a valid, customary and incidental accessory use. A Segway is not a helicopter. As Justice Kass observed, landing aircraft “is a very large scale activity. Keeping elephants is different than keeping a dog, and it toys with the language to say maintaining a landing strip and hangars is incidental to a single family house.” Garabedian v. Westland, supra at 436.
Lastly, Boch offered her own frequent landings and takeoffs by helicopter to buttress her argument that the use of property for helicopter landings and takeoffs had become “customary and incidental. The court stated that this was not enough. To become “customary and incidental,” a use must be shown to have achieved some level of prominence on other properties in the town, and “the use should be more than unique or rare, even though it is not necessarily found on a majority of similarly situated properties.” Harvard v. Maxant, supra at 439. The Garabedian court found that three airstrips in a town of 14.1 square miles was not sufficient to make such uses common enough to be considered “customary and incidental.” The court stated that certainly, if three were not enough, one would not be enough.
Boch v Tomassian, 2015 WL 1406257 (Mass Land Ct 3/24/2015)
The opinion can be accessed at: http://masscases.com/cases/land/2015/2015-13-475253-DECISION.html