ROMA, III, LTD.
BOARD OF APPEALS OF ROCKPORT.
Heard: September 6, 2017.
case was heard by Robert B. Foster, J., on motions for
Supreme Judicial Court granted an application for direct
Cowin for the defendant.
Nicholas Preston Shapiro (Robert K. Hopkins also present) for
Healy, Attorney General, & Elizabeth N. Dewar, State
Solicitor, for division of aeronautics of the Department of
Transportation, amicus curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Budd, Cypher, &
of the Land Court barred the town of Rockport (town) from
enforcing a zoning bylaw that prohibited the use of land for
a private heliport without some form of approval, variance,
or special permit because the bylaw had not been approved by
the division of aeronautics of the Department of
Transportation (division). The issue on appeal is whether
cities and towns may exercise their zoning authority to
determine whether land in their communities may be used as a
noncommercial private restricted landing area, here a
heliport, or whether they may do so only with the approval of
the division because the exercise of such zoning authority is
preempted by the State's aeronautics statutes, G. L. c.
90, §§ 35-52 (aeronautics code). We hold that there
is no clear legislative intent to preempt local zoning
enactments with respect to noncommercial private restricted
landing areas, and that a city or town does not need the
prior approval of the division to enforce a zoning bylaw that
requires some form of approval, variance, or special permit
for land to be used as a private heliport.
III, Ltd. (plaintiff), is the owner of 1.62 acres of
oceanfront property in Rockport (property). The property,
improved by a single-family residence, is located in what is
classified as a residential A zoning district.
Roma (Roma) is licensed as a helicopter pilot and regularly
uses the helicopter he owns to travel to his various family
homes, business engagements, and other activities. Roma does
not operate his helicopter for any commercial purpose. In
September, 2013, following Roma's request for a
determination of airspace suitability for a private
helicopter landing area on the property, the Federal Aviation
Administration recognized the property as a licensed private
use heliport. Roma also received approval following an
airspace review from the division. The heliport on the
property is a flat section of lawn near the ocean with a
windsock installed to indicate the direction of the wind.
Roma stores his helicopter in a hangar located at the Beverly
November 14, 2014, Roma flew his helicopter to the property.
Later that month, the town building inspector issued an
enforcement order stating that "a heliport is not
allowed, either as a principal use of the property or an
accessory use, in any zoning district in the [t]own, "
and that the use of the property for the landing of a
helicopter is in violation of the town's bylaw. The town
building inspector ordered "that the landing of
helicopters on the property be stopped immediately" and
that the "[f]ailure to comply with this order may result
in fines of up to $300 per day."
plaintiff filed an appeal from the enforcement order to the
board of appeals of Rockport (board). After a public hearing,
the board voted unanimously to deny the appeal. It later
issued a written decision noting that, under § I.B of
the town zoning bylaw, uses that are not expressly permitted
are deemed prohibited. That section states that "[n]o
parcel of land in any district shall be used for any purpose
other than those authorized for the district in which it is
located." The board found that, because neither the
table of permitted uses in § III.B of the bylaw nor any
other section of the bylaw authorizes the use of land for a
heliport, the private heliport on the plaintiff's land
was not permitted. Nor, the board concluded, is the heliport
allowed as a "customarily incidental" accessory use
or as an accessory use normally associated with a one-family
detached dwelling that is not detrimental to a residential
neighborhood. Consequently, the heliport would require
"some form of approval, variance and/or special
permit" after a separate hearing. The board found that
"[h]elicopter landings in a dense[, ] village-style
neighborhood are neither a minor nor an insignificant
event" and that "[t]he vibration and noise
resounding in this neighborhood[, ] even when an over-ocean
approach path would be utilized would, in the judgment of
this [b]oard, be detrimental."
plaintiff filed a timely complaint appealing from the
board's decision to the Land Court, followed by two
amended complaints, and the parties thereafter cross-moved
for summary judgment. The judge concluded that he was
"constrained to apply" the Appeals Court's
holding in Hanlon v. Sheffield, 89 Mass.App.Ct. 392
(2016), which interpreted G. L. c. 90, § 39B, to
indicate that a town may not enforce a zoning bylaw that
would prohibit a private landowner from creating a
noncommercial private restricted landing area on his or her
property, unless the relevant bylaw had been approved by the
division. Because the town zoning bylaw had not
been approved by the division, the judge granted summary
judgment to the plaintiff. We granted the board's
application for direct appellate review.