North Haverhill
In an April 7 ruling, Judge Peter Bornstein denied three of the four motions filed by Lebanon to dismiss the lawsuit of a Poverty Lane resident. The ruling means the court will consider Charley Henry’s complaints that the beacons were built in violation of the city’s zoning regulations and the state’s scenic roads law, and that the city did not properly notify residents of construction.
The court did grant a motion to dismiss Henry’s request for monetary damages, however, ruling the city is immune from such a suit.
Henry, who’s representing himself, filed a petition for injunction with the court in late October, shortly before the city constructed two hazard beacons — one 90 feet high, the other 120 feet — south of the airport. One of them sits south of the police station, about 50 yards from his two-story home.
Concerned about light pollution and his property’s value, Henry argued the beacon construction violates city zoning ordinance’s height restrictions. By cutting trees with improper public notice, he argues, the construction violated the scenic roads statute.
City officials have since said the police station was picked to host a beacon because of its location, far south enough on city-owned land to alert pilots without becoming a hazard itself. The city also said it tried to reduce the beacon’s impact on neighbors by painting it green, putting up a chain-link fence instead of barbed wire and affixing a shield to the beacon to block light.
Lebanon’s attorney, Bernie Waugh, filed motions to dismiss the lawsuit on Nov. 24. He argued the beacon and larger airport safety project are within the city’s rights as a landowner and that the city provided adequate notice to residents and neighbors by holding about a dozen public hearings.
The Federal Aviation Administration requires installation of the beacons as part of the city’s 1941 agreement with the government to prevent hazards that restrict airport use, Waugh argued in his motion. The city is immune from damages because it is protected under the New Hampshire Aeronautics Act, which provides that building “air navigation facilities” are protected from lawsuits, according to that motion.
In his ruling, Bornstein found that the beacon lights likely count as a permitted accessory use and therefore are governed by the Lebanon zoning ordinance. He also questioned the city’s assertions about what it was compelled to do by the FAA.
“There are questions of fact as to whether the FAA required the city to erect the beacons in their current locations or mandated the beacons to be a specific height,” Bornstein wrote.
Because Henry’s complaint implied that the city worked within the Poverty Lane public right-of-way to build the beacons and clear trees, Bornstein ruled it’s possible they did so in violation of the scenic roads statute.
Bornstein also found the court could not evaluate or rule on Henry’s claims about whether the city properly notified the public in a motion to dismiss.
But he did rule in the city’s favor to dismiss damages, ruling the beacons are “air navigation facilities” under the aeronautics act.
“This is a case about zoning and the judge has ruled that (the city’s) got to abide by their zoning,” Henry said in an interview on Monday.
He said he doesn’t like lawsuits, but his “back was against the wall” in this instance. Neighbors communicated that they didn’t want the beacon many times before construction, but the city has continued to refuse to sit down and have a constructive conversation on the matter, he said.
Waugh cautioned against viewing the judge’s ruling as predictive of how the case will ultimately be decided. All it means is that there’s not enough factual evidence to dismiss the lawsuit, he said.
A procedural conference is set for June 13. The parties then will decide on deadlines for submitting future discovery items before the lawsuit moves forward.
Tim Camerato can be reached at tcamerato@vnews.com or 603-727-3223.