Helicopter ordinance ruled unconstitutional

By Lisa Majors-Duff

A discussion of the ordinance, and possible "tweaking" or "a total rewrite," could be held Thursday, Dec. 20, during the board's next regular meeting, said county Manager Ken Westmoreland.

After hearing from both sides earlier in the week, Judge Steve Bryant ruled Dec. 7 in favor of the defendant, Smoky Mountain Helicopters' manager Jim Garst. His attorney, Ben Bridgers of Sylva, successfully defended his motion to dismiss charges against his client by arguing that the ordinance violates the Constitution's equal protection clause by singling out as illegal sight-seeing helicopter operations and not other uses of helicopters within the county.

"Since they are the only game in town, I don't see how they can't be singled out," Westmoreland said of the decision.

The county's ordinance regulating sight-seeing helicopters came about after several meetings with Qualla residents, who claimed their way of life was being negatively affected by the noise associated with the helicopter's take-offs and landings, as well as its flight patterns.

"I'm disappointed," said Qualla resident Robert Franz, who has addressed commissioners over the year on a myriad of issues affecting his community. "I hope the county will find a way to rewrite (the ordinance) that works."

In the meantime, Garst said the company is making plans to reopen this week, most likely today (Thursday), with a new pilot and a new, smaller, more quiet aircraft.

"While we won the court case, that doesn't mean as much to us as the happiness of the people of Jackson County," Garst said. "We invite anyone who feels we are flying too close to their homes to come talk to us, and we'll modify our routes as much as possible."

Garst said he plans to continue the business's "fly neighborly policy" by achieving an altitude four times federal government requirements.

"They will fly at 2,000 feet as opposed to the 500 feet required," he said.

The company also plans to install sound-proof fencing to lessen the noise of take-offs and landings, said Garst, who plans to close for business on Tuesdays and Wednesdays.

"It's hard not to be bitter after you lose $40,000 in income, or $80,000 when you figured in that we grounded the aircraft a month before the ordinance was adopted," he said. "That $80,000 would have built a lot of fences."

It is a fallacy of the justice system that the county commissioners can pass an ordinance and cause a small business to loose income that cannot be recouped, said Garst.

"It's an injustice that the county commissioners can adopt an ordinance that their own attorney says is invalid and shut us down, and when they are proven wrong, nothing happens to them," Garst said. "But we are still willing to sit down and talk with Jackson County and help them regulate us, if that's what they want to do. We welcome their input."

The writing of this ordinance took many twists and turns before it was adopted Nov. 1. Commissioners originally asked their attorney, Raymond Large, to draft a document to regulate sight-seeing helicopter businesses after he advised against banning such businesses.

Board members reviewed the results of his work at their meeting in Canada community in September, after which they agreed to fill in the blanks with regard to several issues, including how far away from residences, schools and health care centers they would allow tourist helicopters to operate.

But by their next meeting, three board members had moved away from regulating tourist helicopters and back to banning such operations. By a vote of 3-2, commissioners agreed to rewrite a Haywood County ordinance, which eliminated tourist helicopters from its borders.

Without full board support on its first reading, that ordinance could not take effect, and commissioners scheduled a public hearing on it for Nov. 1.

The final twist occurred during that public hearing, when it became apparent that about half of the 20 people in the audience had obtained another draft ordinance, the third to be presented, this one written by the county manager and designed to regulate helicopters. Audience members became confused by the discrepancy between what had been put on public display and what was actually being considered.

Turning back to their attorney, board members clarified with Large that following the public hearing they could adopt any ordinance, not necessarily the one on display. The vote was 5-0 in favor of the county manager's ordinance to regulate.

Three days later, the company's owner, Bobby Riggs of Pigeon Forge, Tenn., was criminally charged with violating the ordinance after Garst, who is also a pilot, flew with a paying customer Nov. 4. To be technically correct, charges against Riggs were dropped Nov. 27 and filed against Garst the same day. Charges against Garst were dismissed by Judge Bryant Friday.

"I defer all legal opinions to the county attorney, who has been very successful with court cases on the county's behalf in the past," said commission Chairman Jay Denton when asked about Friday's ruling. "This ordinance did not originate with Mr. Large. The county manager wrote it at the request of two county commissioners (Commissioners Stacy Buchanan and Roberta Crawford), not the entire board.

"Prior to voting on (the ordinance), I should have sought Mr. Large's legal opinion," Denton continued. "If I could go back, I would request that Mr. Large have had more time to review it."

Back to Archive: 12/13/01.