When car dealer Ernie Boch Jr. wants friends and family to “come on down” to Martha’s Vineyard, they will not be able to fly direct and land by helicopter on the expanse of green lawn that surrounds his estate overlooking Edgartown Harbor.
In an 18-page ruling dated March 24, Massachusetts Land Court Judge Howard P. Speicher upheld a written cease-and-desist order Edgartown building inspector Lenny Jason issued dated August 21, 2012, and a subsequent vote by the zoning board of appeals in December 2012, ordering Barbara A. Boch to stop using her 15-acre property for the landing of helicopters.
Ms. Boch and members of her family traveled to and from the property in excess of 60 times, according to court documents, from June 2011 through August 20, 2012.
Lawyers for Ms. Boch presented two legal arguments in support of helicopter use: that use of the property as a private helicopter landing site was a valid accessory use authorized by Edgartown’s zoning bylaws because it was not expressly prohibited, and that the town had no authority to prohibit the takeoff and landing of helicopters because the town’s zoning bylaw had not been approved by the Massachusetts Department of Transportation Aeronautics Division, referred to in court documents as “the commission.”
Essentially, Ms. Boch argued that she had applied to the commission to register “a private restricted landing area” and could therefore use the property for that purpose because the town had never submitted its bylaw to the commission for approval.
That claim was a new twist for town property owners who have in the past attempted to land helicopters in residential areas. In 1987, and in 2009, the town issued cease-and-desist orders against helicopter use, and on both occasions those orders were upheld in Superior Court.
Judge Speicher said there was a clear distinction between commercial private restricted landing areas (PRLAs), “which the Commission does approve and regulate, and non-commercial PRLAs, which the Commission neither approves nor regulates.”
The commission’s response to Ms. Boch’s notification was just that, a response. “There was no approval process, and no attempt to regulate the use of the property as a private heliport in any way beyond requiring it be registered,” he said.
“Nor is there any validity to the claim by Boch that the Edgartown prohibition on the landing of aircraft in residential neighborhoods interferes with the Commission’s jurisdiction over the regulation of flight,” Judge Speicher said. “There is a difference between regulating land use and regulating flight operations at airports and other facilities.”
Elephant is not a dog
Ms. Boch also argued, the judge said, that the helicopter was a “customary accessory use” allowed under the bylaw and that “the town’s enforcement attempts should be construed as arbitrarily and capriciously singling out helicopter travel while not regulating other means of vehicular ingress and egress to residential property.”
Ms. Boch argued that what is “customary and incidental” to come and go to residential properties in Edgartown had evolved over the years to include Jet Skis, kiteboards, and Segway personal transporters, and that helicopters were just another form of personal transportation. The judge did not buy it.
While customary and incidental use may change as customs change, and a private landing strip may some day fall into that category, “nothing in the record, however, suggests that day has arrived in Edgartown,” Judge Speicher said.
Quoting from a decision by retired Appeals Court Justice Rudolph Kass [author of the Kass report on the Steamship Authority], Judge Speicher said, “As Justice Kass observed, landing aircraft ‘is a very large-scale activity. Keeping elephants is different than keeping a dog, and it toys with the language to say maintaining a landing strip and hangars is incidental to a single-family house.’”
The ruling is a win for all Island towns, Edgartown town counsel Ron Rappaport told The Times. “If the town hadn’t prevailed in this case, then it would have opened up any town on the Island for private helicopter use, and possibly a landing strip for a plane or jet plane,” Mr. Rappaport said.
“It makes no sense that you would have that in a residential area, particularly where we have a county airport.”
Katama Airpark, a grass strip, is about a mile and a half from the Boch residence, and Martha’s Vineyard Airport is less than six miles away.
Ms. Boch is the widow of Ernie Boch Sr., a seasonal Edgartown resident and successful New England auto dealer who died in July 2003. Mr. Boch was well-known for his ebullient car-dealer personality and television commercial catch phrase, “Come on down.”
Although the lawsuit was filed on behalf of Barbara Boch, those familiar with the case said it was her son, Ernie Boch Jr., who relied on the helicopter.
Mr. Boch, CEO and president of Subaru of New England and Boch Enterprises, is a well-known personality in his own right, with a reputation for philanthropy.
In December 2012, he contributed $70,000 to the town to help outfit a new police and fire search-and-rescue boat. In December 2011, he donated a specially equipped vehicle for the Island’s new K-9 unit to help Buster, a specially trained drug-sniffing dog, combat drug abuse.
The Boch’s five-bedroom, 6,400-square-foot house is appraised at $22 million.
