The town of Edgartown can legally prohibit down harbor resident Barbara Boch from taking off and landing a helicopter on her lawn, a Massachusetts Land Court judge ruled this week.
Ruling in a long-running dispute between the widow of car dealership owner Ernie Boch and the town, the Hon. Howard P. Speicher upheld a cease and desist order issued by the Edgartown building inspector.
Members of the Boch family had flown to and from their property on Edgartown harbor by helicopter more than 60 times in two years when the town building inspector ordered them to stop in August 2012, citing the town’s zoning bylaw. The town’s zoning board of appeals later upheld the cease and desist order, and Mrs. Boch appealed that decision to the land court.
In a motion for summary judgment, Mrs. Boch offered two main legal arguments: that landing a helicopter on her lawn was a valid “accessory use” of her residence under the town zoning bylaw and that even if the bylaw prohibited helicopter use on private property, the bylaw itself was invalid because it was not approved by the Massachusetts Aeronautics Commission.
In an 18-page opinion dated Tuesday, however, Judge Speicher sided with the town on both scores.
While state law gives the state aeronautics commission jurisdiction over commercial restricted landing areas, the judge said, it does not regulate or approve private, noncommercial restricted landing areas, which need only be registered with the commission. A plain reading of the state law, the judge said, would conclude that the town did not need approval from the aeronautics commission to regulate noncommercial helicopter use on private land.
The judge also dismissed Mrs. Boch’s claim that the town had unfairly singled out helicopter travel as a “customary and incidental accessory use” to get to and from her property.
Mrs. Boch had offered an affidavit from her son in which he observed that other people went to and from residential properties on Edgartown harbor on jet skis, kiteboards and Segway transporters.
“Even leaving aside for the moment the fact that the affidavit does not actually claim to have observed the use of these vehicles on any regular basis for ingress and egress to residential properties, these modes of transportation, even if used as asserted, do not justify a conclusion that a helicopter has become a valid, customary and incidental accessory use in Edgartown,” Judge Speicher wrote.
This is the second time in a decade that the town has grappled with helicopter issues. In 2007 Chappaquiddick resident William S. O’Connell received a similar cease and desist order.
That case eventually went to Dukes County superior court, where the Hon. Cornelius J. Moriarty 2nd upheld the town’s position.
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