










2015 VT 41











In re Request for Jurisdictional
Opinion re: Changes in Physical Structures and Use at Burlington International
Airport for F-35A (2014-192)
 
2015 VT 41
 
[Filed 06-Mar-2015]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 



2015 VT 41



 



No. 2014-192



 



In re Request for Jurisdictional
  Opinion re: Changes in Physical Structures and Use at Burlington
  International Airport for F-35A


Supreme Court




 


On Appeal from




 


Superior Court, 




 


Environmental Division




 


 




 


November Term, 2014




 


 




 


 




Thomas
  G. Walsh, J.




 



James A. Dumont of Law Office of James A. Dumont, PC,
Bristol, for Appellants.
 
Geoffrey H. Hand, Brian S. Dunkiel and Erik G. Nielsen of
Dunkiel Saunders Elliott
  Raubvogel & Hand, PLLC, Burlington, for Appellee
City of Burlington.
 
Christopher D. Roy of Downs Rachlin Martin PLLC, Burlington,
for Interested Parties 
  Greater Burlington Industrial Corporation and Friends
of the Vermont Air Guard, Inc. 
 
 
PRESENT:  Reiber, C.J., Skoglund, Robinson and Eaton,
JJ., and Morse, J. (Ret)., 
                    
Specially Assigned
 
 
¶ 1.            
EATON, J.   In this appeal, we consider whether Act 250
jurisdiction extends to the siting and related construction proposed for the
Vermont Air National Guard Base at the Burlington International Airport to
accommodate the anticipated arrival of eighteen F-35A jets.  Following a
request for a jurisdictional opinion, the Environmental Division concluded that
there was no Act 250 jurisdiction because the development served no state purpose
and there was no material change to any existing permit.  The requesting
individuals (appellants) appeal that decision, arguing that the proposed
changes are development for a state purpose and subject to Act 250
review.  Appellants further contend that the project amounts to a
substantial change to preexisting development on the Guard base, which requires
a permit, and a material change to an existing Act 250 permit, which requires
application for an amended permit.  We conclude there is no Act 250 jurisdiction,
and affirm.
¶ 2.            
The relevant facts, as presented by the parties on summary judgment, are
as follows.  Burlington International Airport is owned and operated by the
City of Burlington.  In 1971, the City received its first Act 250 land-use
permit to install and operate an airport hangar and support facilities. 
The Vermont Air National Guard has a base adjacent to the airport on land
leased from the City by the United States Air Force (USAF).  The current
lease extends through June 2048.  The Guard occupies approximately 280
acres of land and maintains forty-four buildings in support of its
mission.    
¶ 3.            
Pursuant to directives from Congress and the Secretary of Defense, the
USAF is charged with preparing the F-35A for combat.  The USAF controls
the decision of where to situate the F-35A.  As part of its decision, the
USAF completed an Environmental Impact Statement (EIS) in September 2013
analyzing the proposed sites.  In December 2013, the USAF decided to base
eighteen F-35A aircraft at the Vermont Air National Guard base.  To house
the F-35A requires five internal infrastructure improvements within the
existing Guard base: (1) renovating the interior of a building for an
F-35A simulator; (2) providing appropriate power in aircraft shelter parking
areas; (3) providing secure and classified upgrades to two internal rooms;
(4) providing a secure parts-storage area, and (5) making internal design
improvements.  The Burlington airport runway is used by civilian and commercial
aircraft and shared with the Guard and the USAF.  A number of Act 250
permits relate to the runway.  The proposal does not contemplate any
structural changes to the runway.
¶ 4.            
Appellants requested a jurisdictional opinion from the district environmental
commission.  See 10 V.S.A. § 6007(c) (allowing “any person” to request a
jurisdictional opinion from the district coordinator concerning the
applicability of Act 250 to activity that might constitute development). 
In March 2013, the district commission concluded that the construction of the
improvements contemplated to accommodate the F-35A was for a federal purpose,
and therefore there was no Act 250 jurisdiction over the construction.  In
addition, the district commission concluded that there was no material change
to any land-use permits because there were no physical improvements proposed
for the runways and the improvements to the Guard base are not governed by an
existing permit.  To the extent that the operation of the F-35A would
increase noise levels, the district commission explained that regulation of
noise was preempted by the Federal Aviation Act, and therefore was outside the
scope of Act 250.
¶ 5.            
Appellants appealed the denial of jurisdiction to the Environmental
Division.  Following the City’s motion for summary judgment, the trial
court concluded that the siting and associated improvements to the Guard base
were not development within the meaning of Act 250, and there was no
substantial change to the base or material change to an existing Act 250
permit.  Thus, the court granted the City summary judgment, and affirmed
the decision of the district commission.  Appellants appealed to this
Court.  
¶ 6.            
Summary judgment may be granted when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of
law.  V.R.C.P. 56(a).  This Court reviews a grant of summary judgment
de novo, and applies the same standard as the trial court.  In re
Eustance Act 250 Jurisdictional Op., 2009 VT 16, ¶ 14, 185 Vt. 447, 970
A.2d 1285.  In construing the requirements of Act 250, we aim to implement
the Legislature’s intent by applying the plain and ordinary meaning of the
statutory language.  Id.  
¶ 7.            
The legal question presented in this appeal is whether Act 250
jurisdiction extends to the construction and related increased noise levels
associated with the siting of the F-35A on the Guard base at the Burlington
airport.  Act 250 is a land-use statute that is intended to regulate and control
development so that it will not be unduly detrimental to the environment and
orderly growth will be promoted.  In re Spring Brook Farm Found., Inc.,
164 Vt. 282, 287, 671 A.2d 315, 318 (1995).  Act 250 requires a permit
prior to commencement of any “development.”  10 V.S.A. § 6081(a). 
The rules implementing the statute also require application for a permit if
there is a substantial change to any preexisting development and application
for an amended permit if there is a material change to any permitted
development.  Natural Resources Board, Act 250 Rules, Rule 34(A)-(B), Code
of Vt. Rules 12 004 060 [hereinafter NRB Rules].[1]  
¶ 8.            
On appeal, appellants argue three bases for Act 250 jurisdiction: (1) the
siting of the F-35A and accompanying retrofit of the Guard base is land
development under Act 250 and requires a permit; (2) the construction
associated with siting the F-35A involves a substantial change to preexisting
development, which requires application for a permit; and (3) the project
contemplates material changes to permitted development—namely, the runway—and
requires application for an amended permit.  We consider each argument in
turn.
I.
¶ 9.            
Appellants argue that the construction required to house the F-35A is
development within the meaning of Act 250 and requires a permit.  Act 250
defines development in part as “[t]he construction of improvements on a tract
of land involving more than 10 acres that is to be used for municipal, county,
or State purposes.”  10 V.S.A. § 6001(3)(A)(v).  The parties agree
that the proposal includes the “construction of improvements” on land
“involving more than 10 acres.”  The issue is whether the construction is
for “State purposes.”  
¶ 10.        
Appellants argue that there is a state purpose to the development and,
even if a federal purpose also exists, Act 250 jurisdiction attaches. 
There are two distinct questions: first, whether the F-35A serves a federal
and/or state purpose and, second, if there are both federal and state purposes,
whether jurisdiction exists.  We conclude that the construction will serve
solely a federal purpose and therefore do not reach the second question.
¶ 11.        
State purpose is defined in the NRB rules as “the construction of
improvements which are undertaken by or for the state, county or municipality and
which are to be used by the state, county, municipality, or members of the
general public.”  NRB Rule 2(C)(15) (emphasis added).  We look to the
undisputed facts concerning the F-35A to determine whether the construction
serves a state purpose.  The F-35A program was initiated by the federal
government, through directives from both Congress and the Secretary of Defense,
and the federal government will finance the project.  The federal
government completed an Environmental Impact Statement as part of its
decisionmaking on where to house the F-35A.  The USAF made the decision to
base eighteen F-35A aircraft at the Burlington Guard base, which is located on
land leased by the federal government.  The F-35A aircraft will be used by
the Guard for training missions.  The stated purpose for the F-35A program
is to “efficiently and effectively maintain combat capability and mission
readiness as the Air Force faces deployment across a spectrum of conflicts
while also providing for homeland defense.”  The USAF can conceive of no
state purpose that the F-35A could be used to attain.  
¶ 12.        
The federal purpose of the project is readily evident.  The
construction and improvements have been initiated and financed by the federal
government.  Further, the federal government will use the improvements to
further its goal of combat readiness.  Therefore, within the meaning of
the relevant rule, the federal government has “undertaken” the construction and
improvements for housing the F-35A, and the F-35A will be “used by” the federal
government.  NRB Rule 2(C)(15).
¶ 13.        
This reasoning is consistent with a 1982 declaratory ruling by the
former Environmental Board,[2]
which concluded that the improvements needed at the Guard base to house the F-4
fighter jet served a federal purpose.  In re Vt. Air Nat’l Guard,
Declaratory Ruling No. 134 (Vt. Envtl. Bd. July 20, 1982), http://www.nrb.state.vt.us/lup/decisions/1982/dr134-fco.pdf.
 In that decision, the Board reasoned that there was a federal purpose
because the improvements were to be constructed, funded, and owned by the
federal government, and located on more than ten acres of land controlled by
the federal government.    
¶ 14.        
The question remains, however, whether a state purpose also
exists.  Appellants point to the fact that under the Federal and Vermont
Constitutions, the Guard is under state control unless specifically called to
serve federal interests.  See U.S. Const. art. I, § 8, cl. 15-16
(according Congress power to call forth, organize, arm, and discipline militia,
but reserving to states authority for training militia); Vt. Const. ch. II,
§ 59 (directing that “inhabitants of this State shall be trained and armed
for its defense”); see also Perpich v. Dep’t of Def., 496 U.S. 334, 347
(1990) (explaining that state guard units retain status as state actors until
called into federal service).  Appellants argue that there is a state
purpose because the leased land is on the Guard base and the planes will be
used by the Guard, which is a state entity.  Appellants further assert
that because the F-35A is intended to help defend the entire nation, it
implements the Vermont constitutional purpose of defending the people of
Vermont and therefore has a state purpose.    
¶ 15.        
There is no need to resolve any constitutional issue because based on
the undisputed facts, we conclude that the proposed construction is not
development for “State purposes” within the meaning of the statute and relevant
rules.  Under the relevant rule, to demonstrate that construction is for a
state purpose requires showing that it is both “undertaken by or for the state
. . . and [is] to be used by the state.”  NRB Rule 2(C)(15)
(emphasis added).  The rule’s use of the word “and” indicates an intent
for the phrases to be conjuctive; therefore it is necessary to comply with both
requirements to meet the definition.  See 1A N. Singer & S. Singer,
Sutherland Statutory Construction § 21:14 (7th ed. 2014) (explaining that use
of “and” indicates that elements are conjunctive); cf. Viskup v. Viskup,
150 Vt. 208, 211 n.3, 552 A.2d 400, 402 n.3 (1988) (explaining that term “or”
in statute should generally be interpreted in disjunctive not conjunctive
manner).  Here, neither part of the rule is met.  The construction
does not meet the first requirement in the rule defining state purpose because
it was not “undertaken” by the state.  NRB Rule 2(C)(15).  The state
did not instigate the project, and will not fund or control it.  In
addition, the second prong of the test is not met because the construction is
not intended to be “used by” the state.  The F-35A is intended to be used
to prepare for international missions and homeland defense.  The USAF can
conceive of no state purpose for the F-35A construction and the undisputed
facts do not contain any information which demonstrates that the State of
Vermont conceives of a state purpose for the construction. 
¶ 16.        
Our conclusion is similar to that reached by the Environmental Board in
its decision concerning the F-4.[3] 
The Board recognized that the Guard serves both the state and the federal
government, but concluded that the proposed improvements related to the fighter
jet were being made by the federal government and would be under federal
control, and therefore there was no state purpose.  
¶ 17.        
Appellants’ arguments concerning the nature of the National Guard do not
convince us otherwise.  Appellants emphasize that the Militia Clauses in
the federal constitution give states control over training of the state
militia.  U.S. Const. art. I, § 8, cl. 16 (providing that “the authority
of training the militia” is reserved to the states).  Appellants assert
that because the Guard is a state entity and the Guard members are under state
control until called into federal service, the state will be using the F-35A
when individual Guard members, acting under state control, pilot the F-35A
aircraft during training.  See Perpich, 496 U.S. at 347 (explaining
that state retains control over Guard until called into federal service). 

¶ 18.        
We need not resolve any constitutional question because we conclude that
the determination of state purpose under the rule does not depend on the status
of the pilots.  The NRB rule defining state purpose focuses on “the
construction of improvements,” not on the status of individuals who will use
the construction.  NRB Rule 2(C)(15).  The fact that individual Guard
members may pilot aircraft during training missions without being called to
federal service does not change the fact that the improvements themselves—to
house and manage military aircraft—have been undertaken by the federal government
to be used by the federal government to make troops combat-ready for foreign
missions and homeland defense.  The use by state Guard members does not
alter our conclusion that the project is not for state purposes; the project
was not initiated or paid for by the state, it is not located on
state-controlled land, and it is not intended for state use.  
¶ 19.        
In addition, the statutory language does not support appellants’ argument
that because the F-35A will be used in defense of the entire country, it will
necessarily be used to defend Vermont and therefore fulfills a state
purpose.  In construing a statute, we apply the plain and ordinary meaning
of statutory terms, and “presume that the Legislature adds and removes
statutory language advisedly.”  Tarrant v. Dep’t of Taxes, 169 Vt.
189, 196-97, 733 A.2d 733, 739 (1999).  We are also mindful that
attempting to regulate construction that has a federal purpose would raise constitutional
preemption questions, and we avoid construing a statute in a manner that would
render it unconstitutional whenever reasonably possible.  Chittenden v.
Waterbury Ctr. Cmty. Church, Inc., 168 Vt. 478, 487, 726 A.2d 20, 27
(1998).  Further, given that the statute conspicuously excludes
construction for a federal purpose, we construe the state- purpose requirement
narrowly.  If we applied appellants’ reasoning that defense of the nation
includes defense of Vermont and amounts to a state purpose, then virtually all
federal purposes would also transform into state purposes.  This would
contravene the intent of the statute, which does not include improvements that
serve a federal purpose.  We conclude that there is no state purpose to
the proposed construction and therefore no “development,” which requires a
permit.
II.
¶ 20.        
Appellants’ second argument is that the physical alterations to the
buildings on the Guard base required for the F-35A project are a substantial
change to preexisting development, requiring application for a permit. 
Act 250 does not apply to improvements constructed prior to June 1, 1970. 
10 V.S.A. § 6081(b); NRB Rule 2(C)(8) (defining preexisting development). 
However, where there is a substantial change to a preexisting development, a
permit is required.  10 V.S.A. § 6081(b); NRB Rule 34(B) (stating that
substantial change to preexisting development requires new application
process).  That is, pre-1970 development is exempted from Act 250
regulation until some change occurs on the property.
¶ 21.        
To determine if there is a substantial change involves a two-part
inquiry.  First, there must be a “cognizable physical change to the
preexisting development,” and second, the change must have “the potential for
significant impact under one or more of the ten Act 250 criteria.”  In
re Hale Mountain Fish & Game Club, Inc., 2007 VT 102, ¶ 4, 182 Vt. 606,
939 A.2d 498 (mem.).  Appellants contend that the buildings on the base
are preexisting development and the proposed alterations to those buildings to
house the F-35A are cognizable changes, which will create increased noise
levels and therefore impact three of the Act 250 criteria.  See 10 V.S.A.
§ 6086(a) (listing criteria).[4] 

¶ 22.        
The first prong of the inquiry is satisfied if there is a cognizable
change.  A change is cognizable if it involves either a physical change or
a change in use.  See In re Vt. RSA Ltd. P’ship, 2007 VT 23, ¶ 11,
181 Vt. 589, 925 A.2d 1006 (mem.) (affirming finding that installation of
antennas and related construction were cognizable changes); In re Gallagher,
150 Vt. 50, 52-53, 549 A.2d 637, 639 (1988) (reversing determination that
proposal, which did not include physical changes to property, was not cognizable
because proposal might nonetheless result in change of use).  Appellants
argue that there is a physical change in this case that is cognizable, namely
the proposed alterations to existing buildings at the Guard base to house the
new F-35A.[5] 

¶ 23.        
We conclude that this proposed construction is not a cognizable change
because it does not amount to development for purposes of Act 250.  The
NRB Rules define “construction of improvements” as “any physical action on a
project site which initiates development for any purpose enumerated in Rule
2(A).”  NRB Rule 2(C)(3).  Rule 2(A) refers to both initial
development and “any substantial change to a pre-existing development.” 
Therefore, any construction of improvements to preexisting development must
itself amount to development under Act 250 for it to trigger the need for a
permit.  As set forth above, “development” does not include construction
that is for a federal purpose.  See 10 V.S.A. § 6001(3)(A)(v) (including
construction of improvements to be used for state purpose).  The physical
improvements on the base, which will be subjected to changes under the F-35A
plan, are to prepare the base to house federally owned military aircraft and to
train persons to use those aircraft.  For the same reasons set forth in
Section I, we conclude that there is no Act 250 jurisdiction because the
proposed construction of improvements serves a federal and not a state purpose
and is therefore not development.[6] 

III.
¶ 24.        
Appellants’ final basis for asserting Act 250 jurisdiction is that the
project will require a material change to the runway, which has an existing Act
250 permit.  Appellants argue that there is a material change to the
runway because there will be a substantial increase in noise levels from the
use of the F-35A aircraft.  
¶ 25.        
When permitted development undergoes a material change, a permit
amendment is required.  NRB Rule 34(A) (explaining that material change to
permitted development requires application for permit amendment).  The
analysis for determining if there is a material change is similar to that used
for a substantial change—there must be a cognizable change that will have a
significant impact on a finding or condition or may result in significant
adverse impact on any of the Act 250 criteria.  See NRB Rule 2(C)(6)
(defining material change as “any change to a permitted development or
subdivision which has a significant impact on any finding, conclusion, term or
condition of the project’s permit or which may result in a significant adverse
impact with respect to any of the criteria specified in 10 V.S.A. Section
6086(a)(1) through (a)(10)”).  Under Environmental Board decisions, a
change qualified as cognizable if it was either a physical alteration or a
change in use.  To determine if such an alteration had taken place, the
Board analyzed whether the activity was contemplated as part of the initially
approved project.  See, e.g., In re Vt. Inst. of Natural Sci.,
Declaratory Ruling No. 352, slip op. at 26-27 (Vt. Envtl. Bd. Feb. 11, 1999),
http://www.nrb.state.vt.us/lup/decisions/1999/dr352-fco.pdf.  Both parties
have accepted the Board’s test for material change and used it in their
analysis on appeal.  Although this Court has previously adopted the
Board’s two-pronged substantial-change test, see In re Vt. RSA Ltd. P’ship,
2007 VT 23, ¶ 10 (noting that this Court has adopted the Board’s
substantial-change test), we have not had occasion to consider the
material-change test.  We now take the opportunity to adopt the Board’s
articulation of the test for a material change.
¶ 26.        
Thus, we turn to the question of whether there is a physical change or
change in use that qualifies as a cognizable change.  The proposal
contemplates no physical changes to the runway.  Appellants assert that
there is a change in use because a different aircraft, the F-35A, will use the
runway.  Appellants argue that the use of the runway by the F-35A and the
concurrent increase in noise levels is not contemplated by the existing Act 250
permits.[7] 
The environmental court noted that there are several Act 250 permits pertaining
to the Burlington airport, but none regulate aircraft operations or aircraft
noise.  The court concluded that there was no change in use because the
existing permits allow aircraft traffic on the runway, and no prior permit
precluded a change in aircraft type.  We reach the same result as the
environmental court—that no permit amendment is required—but on different
grounds.  
¶ 27.        
We accept as true appellants’ assertion that the F-35A traffic creates
noise levels not contemplated by any of the existing Act 250 permits,[8] but conclude that this is not a
cognizable change triggering the need for an amended permit because regulation
of noise is preempted by federal law.[9] 
Federal preemption of state and local law can be express, or implied through
either field or conflict preemption.  In re Investigation into
Regulation of Voice Over Internet Protocol Servs., 2013 VT 23, ¶ 14,
193 Vt. 439, 70 A.3d 997 (recognizing three methods of federal
preemption).  Field preemption occurs when federal control in a field is
so pervasive as to displace state authority in that particular area.  Id. 

¶ 28.        
There is no question that the Federal Aviation Administration has broad
authority to regulate air traffic based on noise generation.  See Helicopter
Ass’n Int’l, Inc. v. FAA, 722 F.3d 430, 433-34 (D.D.C. 2013) (holding that
FAA has authority to regulate traffic patterns of helicopters based on noise
concerns of local residents).  The U.S. Supreme Court has recognized that
pursuant to federal statute, the FAA and the Environmental Protection Agency
(EPA) have full control over the regulation of aircraft noise.  City of
Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 633-34 (1973).
 In City of Burbank, the Court considered whether federal law, specifically
the Federal Aviation Act, preempted a local ordinance that limited the takeoff
hours for certain aircraft for the purpose of limiting the noise effects on
surrounding neighborhoods.  The Court examined the text of the statute and
its legislative history, and concluded that “the pervasive control vested in
EPA and in FAA” left no room for local control of noise.  Id. at
638.  In other words, Congress has occupied the entire field of regulation
related to aircraft noise, and attempts by local governments to enforce their
police powers to control noise or affect flight patterns are preempted. 
See Price v. Charter Twp. of Fenton, 909 F. Supp. 498, 502-03 (E.D.
Mich. 1995) (explaining extent of federal preemption and citing cases).
¶ 29.        
Appellants nonetheless argue that the states can regulate the land-use
impacts of airport noise.  Appellants point to comments by then-Justice
Rehnquist in his dissent in City of Burbank, which characterizes the
Court’s holding as follows:
A local governing
body that owns and operates an airport is certainly not, by the Court’s
opinion, prohibited from permanently closing down its facilities.  A local
governing body could likewise use its traditional police power to prevent the
establishment of a new airport or the expansion of an existing one within its
territorial jurisdiction by declining to grant the necessary zoning for such a
facility.  Even though the local government’s decision in each case were
motivated entirely because of the noise associated with airports, I do not read
the Court’s opinion as indicating that such action would be prohibited by the
Supremacy Clause merely because the Federal Government has undertaken the
responsibility for some aspects of aircraft noise control.
 
411 U.S. at 653 (Rehnquist, J.,
dissenting).  Based on this language, appellants argue that state and
local governments can impose land-use requirements on airport development as
long as there is no attempt to directly regulate noise.  Appellants
contend that here there is room to regulate use of the runway by the F-35A even
though this would indirectly regulate noise.  Appellants further argue
that at the least there is jurisdiction to impose mitigation measures to reduce
the impact of the noise.
¶ 30.        
We conclude that any action to regulate a change in use to the F-35A
would amount to an attempt to regulate noise and be preempted.[10]  We note that Justice Rehnquist’s
characterization of the holding in City of Burbank is not binding as it
comes from the dissent.  However, we agree that City of Burbank
left some room for some local land-use regulation of airports.  See Goodspeed
Airport LLC v. E. Haddam Inland Wetlands & Watercourses Comm’n, 634
F.3d 206, 210-12 (2d Cir. 2011) (recognizing that Congress intended to occupy
the entire field of air safety, but scope of preemption did not extend to state
laws on land use).  A local entity retains control over land-use
regulation, but cannot, “under the pretense of its zoning power, attempt to regulate
those flight operations to quell airplane noise.”  Price, 909 F.
Supp at 504; see Harrison v. Schwartz, 572 A.2d 528, 534 (Md. 1990) (“A
zoning ordinance that does not regulate aircraft noise emissions or the actual
conduct of flight operations may withstand a preemption argument.”). 
Indeed, this Court has recognized this distinction, holding that although “the
federal government has not pervasively occupied the field of land-use relations
relating to aviation,” any attempt to regulate air safety or aircraft noise is
preempted by federal law.  See In re Commercial Airfield, 170 Vt.
595, 597, 752 A.2d 13, 15-16 (2000) (mem.).
¶ 31.        
Here, the sole cognizable change asserted between the use of the runway
under the current Act 250 permit and the use by the F-35A is the increase in
noise levels.  Since the current permits do not regulate noise, the change
asserted by appellants is one that they contend is implicit in the current
permit.  Necessarily, however, any attempt to now set permit requirements
to respond to this “change” is a control aimed at regulating the noise created
by the F-35A.  Even imposing restrictions to mitigate the effects of
noise, such as requiring berms or additional landscaping, would be a regulation
of the noise.  Such regulation is beyond the scope of Act 250 because it
is preempted by federal law.  For this reason there is no material change
that triggers Act 250 jurisdiction.
Affirmed.
 



 


 


FOR THE COURT:




 


 


 




 


 


 




 


 


 




 


 


Associate
  Justice



 
 
¶ 32.        
MORSE, J. (Ret.), Specially Assigned, concurring.  I concur
in the Court’s holding insofar as it goes, but write separately to acknowledge
what the Court largely disregards—the overpowering assault on the senses
produced by the F-35A aircraft—and to observe that other remedies may be
available to those most immediately affected.
¶ 33.        
The record evidence of the F-35A’s noise impact on the area surrounding
the Burlington International Airport is an alarming wake-up call.  It
reveals that decibel levels of the F-35A on take-off, approach, and landing
will be perceived as two to four times louder by the human ear than the current
F-16 aircraft.  The area experiencing decibel levels incompatible with
residential use will increase by several hundred acres, and encompass nearly a
thousand additional households.  See In re Burlington Airport Permit,
2014 VT 72, ¶ 3, ___ Vt. ___, 103 A.3d 153 (discussing the airport’s program of
acquiring residential structures within a minimum “noise contour” of the
airport).  Anyone who has experienced the noise generated by an F-16 can
only imagine the exponential effect of the F-35A on the local populace.  
¶ 34.        
The Court is correct, nevertheless, that federal law preempts direct
state and local regulation of noise generated by aircraft in flight.  See City
of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 635 (1973)
(invalidating municipal ordinance prohibiting aircraft from taking off from
Hollywood-Burbank Airport between 11:00 p.m. and 7:00 a.m., on the ground that
Congress had impliedly preempted “the field of noise regulation insofar as it
involves controlling the flight of aircraft” (quotation omitted)).  
¶ 35.        
A fair number of courts interpreting City of Burbank have also
concluded, however, that federal law does not preempt common-law actions
against municipally-owned airports based on excessive noise or emissions that
result in a public nuisance.  See, e.g.,  Bieneman v. City of Chi.,
864 F.2d 463, 474 (7th Cir. 1988) (holding that that FAA “does not expressly
preempt state damage remedies,” and rejecting argument that permitting damages
while prohibiting regulation was inconsistent); Greater Westchester
Homeowners Ass’n v. City of L.A., 603 P.2d 1329, 1331 (Cal. 1979) (holding
that federal aviation law did not preempt “noise disputes between airport
owners . . . and property owners” or provide municipal airport operators
“immunity from traditional nuisance liability,” and affirming award of damages
to homeowners living adjacent to Los Angeles International Airport for personal
injuries resulting from aircraft noise); Owen v. City of Atlanta, 277
S.E.2d 338, 340-41 (Ga. Ct. App. 1981) (rejecting notion that “preemption [was]
a doctrine behind which an airport proprietor whose facility creates a
‘nuisance’ may hide,” and holding that City of Atlanta, which owns and operates
Atlanta International Airport, could be held liable where its “airport invades
the property rights of adjacent owners”); Krueger v. Mitchell, 332
N.W.2d 733, 739-41 (Wis. 1983) (holding that federal aviation law did not
preempt nuisance actions based on “unreasonable noise levels,” that such
actions would not interfere with “national aviation” policy, and that
unreasonable noise may constitute nuisance even if in compliance “with federal
and state law”); see generally K. Falzone, Comment, Airport Noise Pollution:
Is There a Solution in Sight, 26 B.C. Envtl. Aff. L. Rev. 769, 795 (1999)
(observing that courts have reached the “conclusion that claims for personal
injuries founded upon nuisance are not federally preempted”). 
¶ 36.        
Thus, there is at least an argument to be made that the F-35A will
create a “public nuisance” to the area surrounding the Burlington International
Airport.  Under the common law of this and most states, a “public
nuisance” is an activity that represents “an unreasonable interference with a
right common to the general public.”  State v. Howe Cleaners, Inc.,
2010 VT 70, ¶ 49, 188 Vt. 303, 9 A.3d 276 (quotation omitted).  Here, the
right is to be free from the assault of ear-splitting noise generated by jet
aircraft.     
¶ 37.        
Of course, whether the facts and law will ultimately support a
public-nuisance action by residents of the area near the Burlington International
Airport if, and when, the F-35A aircraft is deployed remains to be
determined.  It is well to recall, however, that the right to a remedy
“for all injuries or wrongs which one may receive in person, property or
character” is one granted to all Vermonters under our Constitution.  Vt.
Const. ch. I, art. 4.  While a public-nuisance suit may be less than what
the affected residents had hoped for, it may at least provide some redress for
an injury they are powerless to prevent.



 


 


 




 


 


 




 


 


Associate Justice (Ret.),
  Specially Assigned



 
 







[1] 
The NRB Rules were amended effective October 2013.  Because the
jurisdictional opinion was requested in December 2012, the 2009 version of the
rules is used in this decision.


[2] 
The Environmental Board no longer exists and now the Environmental Division of
the superior court has jurisdiction over appeals concerning the scope of Act
250 jurisdiction.  10 V.S.A. § 6007(d)(4).


[3]  This Court gives deference to the
Environmental Board’s interpretation of legislation within its area of
expertise.  See In re Green Crow Corp., 2007 VT 137, ¶ 12, 183 Vt.
33, 944 A.2d 244 (explaining that this Court gives deference to Environmental
Board’s interpretation of Act 250 “even in appeals raising jurisdictional
issues” (quotation omitted)); In re Southview Assocs., 153 Vt. 171,
175-76, 569 A.2d 501, 503 (1989) (“The Board must be afforded deference in its
interpretation of its own enabling
legislation.”).  However, this Court reviews de novo the Environmental
Division’s interpretations of law.  See In re SP Land Co., 2011 VT
104, ¶ 13 n.2, 190 Vt. 418, 35 A.3d 1007 (explaining that review of
environmental court is just as for any other court, and different than review
of agency decision).  


[4] 
Appellants allege that the project will impact criterion 1 as air pollution
through loud noise, criterion 8 as an impact on aesthetics through noise, and
criterion 10 due to nonconformity with the municipal plans because of noise
impacts on housing.   
 


[5] 
Appellants’ argument that the construction will create increased noise does not
factor into the first part of the analysis; it is relevant only to the second
part of the test—whether the change will have the potential for significant
impact under one of more the ten Act 250 criteria.  See Hale Mountain,
2007 VT 102, ¶ 4 (setting forth two-part test).   
 


[6] 
On appeal, the City contends that appellants waived any argument that the
proposal included substantial changes to the internal buildings on the Guard
base because in the Environmental Division appellants only argued that the
change in aircraft was a cognizable change.  Appellants argue that they
adequately raised the issue in both their initial and responsive
summary-judgment filings.  We need not reach this issue because we
conclude that the changes are not development within the meaning of Act 250.


[7] 
Our cases do not delineate which party has the burden of proving that there is
a material change to permitted development.  Generally, the burden of
proving that a project is exempt from Act 250 jurisdiction is on the person
claiming the exemption.  In re Vt. RSA Ltd. P’ship, 2007 VT 23, ¶
10.  We have held, however, that where development is grandfathered in because
it was preexisting, the burden is on the proponent of jurisdiction to
demonstrate that the project is a substantial change to the preexisting
development.  Id.  In this case, appellants argue that the
burden was on the City to prove that the existing Act 250 permits covered the
changes proposed for the project.  We need not reach this issue because we
conclude that even if, as appellants assert, the City failed to show that the
current permits covered use of the runway by the F-35A, any resulting change in
noise levels is preempted by federal law.
 


[8] 
The federal EIS, which both parties accepted at summary judgment, reports that
the F-35A will generate higher noise levels than the F-16 aircraft that it is
replacing.  
  


[9] 
The concurrence suggests that a public-nuisance suit could provide an avenue of
relief to address the increased noise levels created by the F-35A. 
Whether such a suit could be brought to address noise created by a federally
owned military aircraft is a question that would implicate federal preemption
in areas beyond noise regulation.  This issue is beyond the scope of this
appeal, and as such, we do not address it.  


[10] 
Further, any argument that the change in aircraft alone would amount to a
cognizable change would also be preempted.  The federal government has
specifically preempted the states from regulating the type of aircraft that are
authorized to use an airport.  See 49 U.S.C. § 41713(b)
(“Preemption.—(1) Except as provided in this subsection, a State,
political subdivision of a State, or political authority of at least 2 States
may not enact or enforce a law, regulation, or other provision having the force
and effect of law related to a price, route, or service of an air carrier that
may provide air transportation under this subpart.”).



