In re Changes in Physical Structures & Use at Burlington Int'l Airport for F-35A, No. 14–192.

• Docket Nº: No. 14–192.
• Citation: 117 A.3d 457, 2015 VT 41
• Case Date: March 06, 2015
• Court: United States State Supreme Court of Vermont

117 A.3d 457
2015 VT 41

In re REQUEST FOR JURISDICTIONAL OPINION RE: CHANGES IN PHYSICAL STRUCTURES AND USE AT BURLINGTON INTERNATIONAL AIRPORT FOR F–35A.

No. 14–192.

Supreme Court of Vermont.

March 6, 2015.

117 A.3d 459

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.

Opinion

EATON, J.

¶ 1. 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

117 A.3d 460

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 coordinator. 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 coordinator 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 coordinator 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 coordinator 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 coordinator. 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.

117 A.3d 461

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...