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Roma, III, Ltd. v. Board of Appeals of Rockport

Supreme Judicial Court of Massachusetts, Suffolk

January 8, 2018

ROMA, III, LTD.
v.
BOARD OF APPEALS OF ROCKPORT.

          Heard: September 6, 2017.

         The case was heard by Robert B. Foster, J., on motions for summary judgment.

         The Supreme Judicial Court granted an application for direct appellate review.

          Jackie Cowin for the defendant.

          Nicholas Preston Shapiro (Robert K. Hopkins also present) for the plaintiff.

          Maura 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, & Kafker, JJ.

          GANTS, C.J.

         A judge 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.[1]

         Background.

         Roma, 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.

         Ron 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 Airport.

         On 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."

         The 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."

         The 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.[2] Because the town zoning bylaw had not been approved by the division, the judge granted summary judgment to the plaintiff.[3] We granted the board's application for direct appellate review.

         D ...


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