Friday, April 20, 2012

Special Post: Lawsuits against Cavendish and Selectmen regarding Helipad

Currently, the town of Cavendish, the town manager and individual Selectmen are being sued by David Coutu, a second home owner and helicopter pilot who is seeking to build a helipad on his property.

After the town of Cavendish (Town) would neither grant him approval for the helipad nor send a letter to the Vermont Transportation Board (the Board) explaining that it had no zoning ordinance and thus no authority upon which to base an approval or denialplaintiff attempted to apply for a permit directly to the Board. He was denied consideration for lack of municipal approval and so sought a declaratory ruling from the Board as to the scope of the Town's authority in these matters; however, the Secretary of the Board refused a hearing. Before the trial court, plaintiff sought: (1) an injunction directed at the Town requiring it to grant approval of his proposed helipad and to admit that it lacked authority to withhold approval; (2) review of the Board Secretary's refusal of his petition for declaratory ruling; and (3) an injunction directed at the Board requiring it to consider his petition on the merits.

In 2008, David Coutu requested the town’s approval for a helipad on his property, off of Heald Road in Proctorsville. The Selectboard (SB) asked the Planning Commission to review this request in terms of the Town Plan. In September of that year, the Planning Commission presented their findings to the Selectboard, stating that the proposal did not meet the criteria set forth because of noise and the limited fire and rescue available in the event of an accident. Abutting residents to Coutu’s property also presented information to the Board, with several strongly opposed to the helipad. The SB discussed this issue at length, and the final decision, 3 to 2, was against the helipad request.

At the July 2009 SB meeting, Mark Hall, the attorney for David Coutu, said the SB’s position was blocking his client’s ability to obtain a permit to establish a helipad. It was his belief that the SB was not in a position to make such a decision as there is no zoning in Cavendish, the Planning Commission had no power and the “Town Plan” was not legally relevant to this situation. April Hensel, representing both the Planning Commission, and at times, her position as Act 250 Coordinator, explained that based on her conversations with the attorney for the VT Agency of Transportation, the SB does have the right and the responsibility to make such decisions, regardless of zoning. Further, the SB can seek advice and counsel as needed and that the Planning Commission is well aware of their advisory role.

Among the issues Hensil raised about the project was Cavendish’s lack of infrastructure, as fire and rescue is all volunteer and there is no paid police force. She compared this to Hartness Airport in Springfield, where helipads and hangers are readily available and there is an appropriate infrastructure to handle emergencies if they arise.

While this was not a public hearing, various members of the audience expressed their viewpoints, with the main area of concern being the landowner’s rights to do with their property as they choose. Both SB members and a number of people in attendance were concerned about precedent. “If you say yes, what kind of floodgates are you opening.” If Cavendish, a community noted for its landscapes, quiet and rural way of life, were to become a town where there are a number of private helipads, it will change the nature of the town.

Attorney Hall was adamant that his client was prepared to fight this in court, thereby potentially costing the town quite a bit of money.

Since that time, the town, as well as the state has had to deal with a variety of suits filed by Coutu’s attorney. A summary of these legal proceedings is available on-line at .

On October 6, 2011, Coutu filed a suit against the town of Cavendish, as well as town manager Rich Svec, and select men George Timko, Edward Garrow, James Ballantine and Daniel Churchill

According to Svec, Coutu now has three active law suits over the helipad, including the one against himself, the town and selectmen. Other than the open SB meetings in 2008 and 2009, the legal actions of Coutu have only been discussed in executive session by the SB.

Last week, Svec and the SB chair, Jim Ballatine were part of a lengthy mediation session regarding these suits. Due to required confidentiality Svec is not relaying much information on these proceedings but indications are that the legal situation is at a critical point. Basically, should the town continue to fight the law suit?

Cavendish has a very strong history in protecting land and beliefs. In the 1970’s, Save the Valley movement kept the Black River from a power dam that would have created a lake where parts of our historic village now stands. Again, in 2003, a group of citizens came together to stop a quarry, which in turn lay the foundation of this news outlet- the Cavendish Update was once the Quarry Update- as well as the non profit organization, Cavendish Community and Conservation Association (CCCA).

The SB will be meeting on Monday, April 23 at 5 pm in executive session to discuss what position the town needs to take. If the SB votes to take action, this needs to be done as a public vote. Considering that one of the SB members, George Timko, is away, the vote may be postponed until the May SB meeting.

Prior to this meeting, it is important that people make their views known to the various SB members (Jim Ballentine, Bob Glidden, Scott Ranney, Mark Huntley and George Timko). While we are operating with minimal information, there are several issues that you may wish to discuss with the SB members:
• Are we opening ourselves to further and more serious issues down the line if the town gives permission to Coutu to build his helipad? Can Cavendish be “bullied” by lawsuits so that people can do whatever they want, whether it makes sense or not, or whether it conforms to the Town’s plan?
• Is it appropriate for the citizens not to know that the town and SB members are being sued? What guidelines are in place to determine when and how information is distributed to the town?


Unknown said...

It isn't a good message to send that if you don't get an Act 250 permit or an approval from the Transportation Board that all you need do is sue individual decisionmakers in federal court and then they will let you do what you want. If you read the Supreme Court decision, it appears that Mr. Coutu's lawyer failed to appeal at the right time in the right place and now he's trying to get the result his client wants by scaring the decisionmakers. Not a good way to do things.

Kem Phillips said...

Regardless of the merit of Mr. Coutu's request to have a helipad, he can't be allowed to get his way simply because he has enough money to sue the town and selectmen. Being subject to such suits would surely discourage community members from taking these important positions.