County board cannot regulate helicopter, attorney general says

By Lisa Majors-Duff

Board members received an advisory opinion to that affect from three staffers in the N.C. Attorney General's office in response to a February inquiry concerning what options, if any, were available to the county to regulate or ban Cherokee Helicopters.

Commissioners have heard citizen complaints about the business - ranging from excessive noise to invasion of privacy - since it was established in 1999. Another such complaint was issued during the board's July 25 meeting.

The problem with the helicopter "has reached a level of urgency," said Earl Davis, director of Moonshadow Learning Center of Whittier. "Either he can stay in business or I can stay in business."

Instructors at Moonshadow must stop lecturing each time the helicopter flies over their classes, Davis said.

"As a 25-year resident of the community, I can say the quality of life has been dramatically affected by the helicopter," Davis continued. "I'm asking you to not let this slide off your radar screen."

But the Attorney General's opinion may have left commissioners no other option, Jackson County Manager Ken Westmoreland said.

"Basically, it says we can't do anything," said Westmoreland of the six-page opinion.

Attorneys Reginald Watkins, Robert Crawford and Scott Beaver addressed four questions concerning the county's options:

1) Can a 1929 state law against "fly[ing] at such as a low level as to disturb the public peace" be applied?

2) Can Jackson County ban the operation as Haywood County has?

3) Can the county's ordinance, which was ruled unconstitutional one month after it was adopted, be modified?

4) Does the county have other options available to regulate the business?

"The United States government has exclusive sovereignty of airspace of the United States," the attorneys wrote in response to the first question. The 1929 law "...should be read as a prohibition against flying contrary to that mandated by federal law.

"In other words, it is likely that compliance with federal altitude and route requirements would equate with compliance with the altitude provisions of (the state law)," they wrote.

Should a helicopter operator decide to challenge Haywood County's ordinance banning sight-seeing helicopter operations, they would most likely succeed, the Attorney General representatives wrote to address question two. Not only have specific rules imposed by local governments on helicopter flights been declared invalid under the U.S. Constitution's supremacy clause, they said, but the "...Haywood County ordinance goes even further by banning helicopter operations... altogether. It is likely a court would invalidate the Haywood County ordinance."

In response to the third question posed, the attorneys general said Jackson County's regulatory ordinance, adopted Nov. 1, defines the Cherokee helicopter operation as a "public nuisance," one which affects the county at large. But, they wrote, "...it does not appear that the operation of the helicopter sight-seeing service can be classified as a public nuisance. While the helicopter sight-seeing operation apparently affects individual property owners in Jackson County, it does not appear to adversely affect the public as a whole."

Continuing to address the third question, the attorneys general pointed out that the business may be considered a nuisance in that it "...results in substantial interference with the use and enjoyment of land by another. However, the party with standing to maintain an action for nuisance would be the individual property owner affected, not the local governing board."

Further, the ordinance's requirement that a helicopter business seek pre-approval of its flight plans would most likely violate federal supremacy laws, the attorneys general wrote.

"Your final question concerned steps that Jackson County could take to address the problems associated with helicopter operation," they wrote. "We note that the proprietor of the service has expressed some willingness to agree to be bound by restrictions in excess of those mandated by federal law. Negotiations along these lines would appear to be the best course of action available to the county."

District Court Judge Steve Bryant ruled the county's ordinance unconstitutional in December after Cherokee Helicopter's manager Jim Garst was cited for violating the local law. Garst was represented by Sylva attorney Ben Bridgers, who also sent information on the subject to the Attorney General's office.

"...I would like to point out that in this instance I do not believe the board is following the advice of their own attorney (Raymond Large) but is primarily seeking to redress grievances presented to them by voters in the community," Bridgers wrote.

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