EAST GULL LAKE — Residents of East Gull Lake who oppose private helipads in their city celebrated a victory Tuesday night, but the battle is not yet over.
The city’s planning and zoning commission voted 3-2 Tuesday, Aug. 25, to recommend the city council deny an ordinance amendment allowing the construction and use of private helipads in East Gull Lake. Furthermore, the split vote carried a recommendation to specifically add helipads as an excluded use in the city’s land use ordinance.
The city council will take up the issue at 6:30 p.m. Tuesday, Sept. 1. Despite the planning commission’s recommendation, the council could still approve the measure but must do so with a four-fifths majority for the amendment to take effect.
Background
The much-contested helipad issue came up last year, when Doug Schieffer bought 9 acres of land on Sunset View Road on Floan Point with the hope of building a helipad on the property to land his helicopter. Schieffer lives and works near the Twin Cities but plans to build a seasonal home in East Gull Lake. He would travel between the two locations with his helicopter when possible.
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Many residents in the neighborhood, though, said they do not want to deal with the noise levels or potential safety issues a helicopter would bring in that area.
The planning commission hosted a three-hour public hearing July 28 with about 100 attendees and listened to comments for and against the ordinance. Before the meeting, hundreds of letters were sent to the city regarding the proposed ordinance, with a vast majority in opposition.
At the end of the hearing, commissioners agreed to table the issue and directed City Attorney Tom Pearson to draw up findings of fact for and against the ordinance for the commission to review.
Though Schieffer’s request undoubtedly got the ball rolling for the issue, Planning Commission Chair Bruce Buxton repeatedly reminded residents and the rest of the commission throughout the process the ordinance change was not specific to Schieffer. If passed, Schieffer and any other resident who met the criteria would be able to apply for a conditional use permit to build a helipad on their property. Each permit would be evaluated on a case-by-case basis.
Work session
Commissioners reviewed those findings of fact — as well as documents from attorneys on both sides of the issue — during a work session Monday, Aug. 24. At that time, Pearson advised commissioners to identify specific findings of fact to support each side of the argument before the Tuesday meeting. That way, he said, when someone made a motion Tuesday and cited the facts to back it up, the rest of the commission could quickly figure out if those are the same thoughts they had, or if they had any different feelings.
Commissioner Eunice Wiebolt said at the work session the planning commission should allow all residents to have free use and enjoyment of their property without policing it.
But that can’t come at the detriment of neighbors, Buxton said.
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Findings of fact — for the amendment
Findings of fact from Kyle Hart, Schieffer’s attorney, include:
The amendment would not require the city to issue a conditional use permit for a helipad, but simply gives the option.
Helicopters are already allowed to fly in East Gull Lake and land on water, a seaplane base or at an airport.
The proposed amendment does not constitute spot zoning because it would apply to all land in the city capable of meeting requirements, not just a single parcel.
There is no evidence to support the claim of property devaluation near a helipad.
The ordinance amended was drafted with safety requirements more stringent than those from the Federal Aviation Administration.
Hart also cited the 2003 court case Citizens for a Balanced Society v. Plymouth Congregational Church, the outcome of which stated denial of a conditional use permit must be based on something more concrete than neighborhood opposition and expressions of concern for public safety and welfare.
Commissioner Marty Halvorson asked what kind of weight community opposition can have, and Pearson said the ruling simply states neighborhood opposition can’t be the only basis to deny a conditional use permit. How much weight community voices get, Pearson said, is up to the commission.
“It is also illogical and fundamentally inequitable to allow helicopters, seaplanes, power parachutes, powerboats, and jet skis to freely operate in East Gull Lake, but to prohibit helicopters from landing and taking off from a private heliport that has been permitted by MnDOT Aeronautics,” Hart wrote in his findings of fact.
Findings of fact — against the amendment
Findings of fact from Matthew Loven, attorney representing those against the amendment, include:
The use is not compatible with the city’s land use criteria in terms of preserving naturally sensitive areas and the existence of alternate options for helicopter pilots to land and take off in the city.
The amendment would be akin to spot zoning, as only a select few properties would meet the requirements.
The amendment does not promote or further the goals of the city’s comprehensive plan.
The amendment would be injurious to other property owners’ use and enjoyment of their property.
Minnesota Department of Transportation and the Cass County Sheriff’s Office stated they will not monitor or regulate the use of private helipads.
In terms of enforcement, Mason said Monday it would be largely up to neighbors to monitor helipad use and notify the city of anything that defies the ordinance. Then he himself would give the property owner a verbal warning. If necessary, the city can revoke a conditional use permit if conditions are abused. Citizens would likely be quick to call, Mason said, but Buxton said he wasn’t sure the city should put that responsibility on its residents.
From the city attorney
Pearson’s findings of facts for and against the amendment are the same. He referenced city code, which notes the zoning ordinance was adopted to further the following goals (among others):
Protect the public health, safety, comfort, convenience and general welfare.
Further the goals of the comprehensive plan.
Conserve natural and scenic beauty and attractiveness of the city for the health and welfare of the public.
Any amendment to the zoning ordinance, city code states, must be consistent with those goals.
Behind the decision
The beginning of Tuesday’s meeting drew the illusion the ordinance may pass, with the first motion coming from Halvorson in favor of allowing helipads.
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Halvorson said he was strongly influenced by testimony from Rex Alexander, a former military helicopter pilot with 40 years of professional aviation experience who spoke in favor of the issue at the hearing in July. Among the information he shared were studies on the historically low rate of helicopter crashes near heliports in the U.S., the extremely low likelihood of future crashes, and the proven low environmental impact.
“Although a segment of East Gull Lake’s residents have voiced significant opposition to the proposed amendment, the majority of East Gull Lake’s residents have not made their wishes known,” Halvorson said during his motion.
He cited the city’s zoning code, which allows for amendments to reflect changes in the goals of the community or the conditions of the city. He also cited the comprehensive plan, which notes monumental changes in transportation, communication and technology over the years to reshape how and where people live and work. Business owners are coming to understand they have the means to manage their business remotely while living in areas — like East Gull Lake — that may be more attractive to them and avoiding the congested traffic of metro areas.
“When seen as a whole,” Halvorson said, “the facts support the proposed amendment to the city of East Gull Lake’s city code to include helipads as an allowed use in the city.”
Wiebolt seconded the motion.
Buxton began the conversation by saying the one thing not addressed in Halvorson’s stance is the character of the community.
“I think that there are already adequate facilities available, and any helipad in R-2 and R-3 zones is changing character, spot zoning and basically a change and detriment to the character of the neighborhood,” Buxton said.
The ordinance amendment would allow the construction of a helipad on lots of 5 acres or more and limit usage to two takeoffs and landings per day between dawn and dusk during clear weather conditions.
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Buxton said two landings and takeoffs per weekend would be more appropriate and questioned how to determine the adequacy of insurance, which is also required for pilots under the ordinance.
Commissioner Nathan Tuomi said the enforcement piece worried him, as East Gull Lake does not have adequate nor qualified staffers to enforce the conditions. Enforcement would likely fall to Mason, who Tuomi said is likely not trained to work with helipads.
“An accident may not happen, but if one does, definitely in R-1, R-2, R-3, there’s obviously a possibility of injury not only to the pilot but also to a resident. I don’t believe that is something that we want to take a chance of,” Tuomi said. “... The duties of planning and zoning and the city of East Gull Lake is the safety and welfare of its citizens, and it does not fit our comprehensive plan. It’s not part of the character of our city.”
Tuomi’s remarks drew applause from the audience.
By making helipads a conditional use, Halvorson reminded the commission the council has the authority to revoke a permit if regulations are not being followed and said he does not want to assume the worst case scenario that pilots would break the law.
Both Tuomi and Buxton noted the existence of the nearby East Gull Lake Airport and the Brainerd Lakes Regional Airport a little farther out. The original deed for the East Gull Lake Airport has stringent stipulations preventing the construction of secure hangars for helicopter storage.
Siding with Halvorson, Wiebolt compared helicopters to seaplanes, which the city cannot regulate, as they land on the water. She said she believes seaplanes are louder and more dangerous than helicopters.
“I think that we should approach this in a fair manner. People buy property, and they want to use it like they want to use it,” she said, noting she is not opposed to rules and regulations. “... For any of us to think that having a helicopter is an unnecessary luxury — which is wording that I took from somebody’s comments — I think that’s quite inappropriate.”
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Wiebolt said she thought there were conditions to make the ordinance reasonable and safe, but Tuomi disagreed, saying he did not think landing a helicopter was appropriate in residential neighborhoods.
When it came to vote, Wiebolt and Halvorson approved the motion to amend the ordinance, while Buxton, Tuomi and Rocky Waldin were opposed.
Audience members again clapped at the outcome, and Buxton asked them to remain reasonable.
Tuomi then motioned to recommend the council reject the ordinance amendment and further amend the use ordinance to specifically exclude helipads. Waldin seconded the motion.
Halvorson said Tuomi’s reasonings were not consistent with the experts’ findings of fact, and Wiebolt added, again, the negative responses obtained are not indicative of the majority of landowners in East Gull Lake.
The motion passed 3-2, with Wiebolt and Halvorson opposed.
Proponents’ response
After the meeting, Schieffer and Hart said the decision was unfortunate and very unfair, and commissioners ignored the facts.
“They have zero factual basis to turn that down,” Schieffer said, with both proponents confident the city council would overrule the commission.
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Wednesday, Aug. 26, Hart emailed an additional statement to the Dispatch and forwarded communication between Schieffer and Buxton. In one of the emails sent Tuesday afternoon before the meeting, Buxton wrote to Schieffer: “... as you know, I have never supported your helipad in any location on your property. Nothing you, your attorneys, or the opponents have said have changed my mind.”
Hart said it sounded like Buxton’s mind was made up from Day 1 and felt it was unfair. “However,” Hart wrote, “Mr. Schieffer is confident that he will get a fair shake before the City Counsel (sic) and looks forward to that vote next week.”
In the ordinance
If the proposed ordinance is passed, private heliports would be a regulated use in East Gull Lake. Those who wanted to build a helipad would have to apply for a conditional use permit and adhere to the following guidelines:
Property must contain a minimum of 5 acres on a lake.
Property owner must acquire a MnDOT aeronautics permit.
Property owner is limited to commuting and storage of the helicopter on site. Two takeoffs and two landings per day maximum allowed. All recreational flights will be done from the East Gull Lake Airport.
Flight times will be limited to 7 a.m. to dusk.
Adequate proof of insurance must be filed with the city.
No take off in any instance in winds exceeding 20 knots. Visibility must be at least 3 miles. Cloud heights must be at least 1,000 feet above the ground. The weather as reported from the Brainerd Automatic Weather Observation Station will be used.
Fifteen properties in East Gull Lake fit these criteria.
City Administrator Rob Mason said the two landings and two takeoffs a day would allow a commuter to land at their property in the morning, leave for recreational purposes, come back at the end of the day and potentially fly back from where they originally came from.
Mason also said a daily regulation would be much easier to keep track of than a weekly allotment.
Buxton said two flights a day would be likely an intrusion in any neighborhood setting, and he would definitely see it as an intrusion next to his house.
“But seaplanes are OK?” Wiebolt retorted.
Buxton said what happens on the water is not up to the commission. Technically, helicopter pilots could land their crafts on a pontoon on the lake if they wanted to.
THERESA BOURKE may be reached at theresa.bourke@brainerddispatch.com or 218-855-5860. Follow her on Twitter at www.twitter.com/DispatchTheresa .
