The Edgartown zoning board of appeals Wednesday upheld a cease and desist order prohibiting helicopter landing at the Boch home in Katama. While an attorney for Barbara Boch cited Massachusetts law that allows Mrs. Boch, the widow of car dealership owner Ernie Boch, to land a helicopter on her property, the board cited neighbor concerns and precedent in affirming the building inspector’s cease and desist order. Mrs. Boch’s attorney, Kathleen Genova, said that a helicopter would take off and land from the large lawn in front of the family’s $21.5 million home on Katama Road once or twice a month.
In August the town issued a cease and desist against that use. Ms. Genova said that in issuing the cease and desist, the building inspector relied on part of the zoning bylaw that lists appropriate uses for buildings and land in that area, with helicopter landing not on the list.
“I understand his position,” Ms. Genova said, distributing copies of case law and several other documents to the board members. But she said that part of Massachusetts General Law “trumps the town’s zoning bylaw.”
Under state law, she said, property can become a “private restricted landing area,” which requires notification sent to the Massachusetts Aeronautics Commission.
On Nov. 20, an initial notification of a private restricted landing area for the Boch property was sent to the aeronautics commission. The commission acknowledged its receipt on Dec. 5.
Ms. Genova said town bylaws can only regulate those landing areas by having ordinances submitted and approved by the Massachusetts Aeronautics Commission. She said the town bylaw has never been submitted to the commission, and thus has never taken effect.
Ms. Genova cited a similar case in the western Massachusetts town of Monson, in which the court ruled in favor of homeowners who wanted to land their helicopter on their rural residential property.
This is not the first time the town has grappled with helicopter issues. In 2007 Chappaquiddick resident William S. O’Connell received a similar cease and desist order stating that landing a helicopter on his property was prohibited by town zoning bylaws.
The case eventually went to Dukes County superior court, where the Hon. Cornelius J. Moriarty 2nd upheld the town’s order. Ms. Genova said that the state statute was not mentioned in that case.
The town was also upheld in another case in the early 1980s, Ms. Genova said, before the statute was added to state law in 1985.
“I understand what the history is here, but it doesn’t involve the statute,” she said.
Ms. Genova also argued that entering and leaving one’s property is not technically a use of land, and should not be governed by the bylaw.
The board received four letters from neighbors imploring them to uphold the order. Noting that the Bochs have been good neighbors, Katama Road resident Arnold Wells said he took “no pleasure in strongly opposing their appeal.” “All Vineyard residents should be allowed quiet and peaceful enjoyment of their property,” he said, noting that the helicopters are noisy and can be dangerous to operate, and that allowing the helicopter landing would set a precedent. Others noted that the Katama Airfield was a few miles away; board assistant Lisa Morrison said she thinks helicopters cannot land at the airfield because of conservation restrictions. Airport manager Mike Creato said later that helicopters can land at the airfield with prior permission, although few do. Chairman Martin V. (Skip) Tomassian Jr. said the board can only rely on what’s happened in the past. “I think one of the things we might want to think about is the neighbors and how it’s going to affect them,” he said.
“It sounds like we’re in a no-win situation,” board member Nancy Kelly said, while Carol Grant noted that the court case Ms. Genova referred to happened in western Massachusetts, which she said was very different than the coastal Katama neighborhood.
Board member John Magnuson made a motion to uphold the cease and desist “because it’s a residential neighborhood on the harbor” and the board received many letters from neighbors opposed to it. The vote was unanimous.
Ms. Genova told the Gazette that it would be up to Mrs. Boch to decide whether to take the appeal to superior court, the next procedural step.