Posted by: Patricia Salkin | September 6, 2015

VT Supreme Court Holds Change in Noise Levels Resulting from Change to Runway was Preempted by Federal Law

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 USAF controls the decision of where to situate the F–35A, and completed an Environmental Impact Statement (EIS) in September 2013 analyzing the proposed sites. Appellants requested a jurisdictional opinion from the district environmental coordinator, which found proposed construction was not for “state purposes” under Act 250. Appellants sought review of the decision of the district environmental coordinator, and the Superior Court, Environmental Division affirmed.

Act 250 defines development in part as “the construction of improvements on a tract of land involving more than 10 acres that is to be used for municipal, county, or State purposes.” Here, the federal purpose was relevant: the construction and improvements had been initiated and financed by the federal government, and the federal government would use the improvements to further its goal of combat readiness. 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.” Here, neither prong was met because the state did not instigate the project, fund, or control it; the second prong of the test was not met because the construction was not intended to be “used by” the state. The court therefore concluded that there was no state purpose to the proposed construction and thus no “development,” which required a permit.

To determine if there is a substantial change, requiring application for a permit, 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.” The court found that “development” did not include construction that was for a federal purpose. Because the proposed construction of improvements serves a federal and not a state purpose and is therefore not development, the court found there was no Act 250 jurisdiction. Appellants’ final basis for asserting Act 250 jurisdiction was that the project will require a material change to the runway, which has an existing Act 250 permit. However, the sole cognizable change asserted between the use of the runway under the current Act 250 permit and the use by the F–35A was the increase in noise levels. Since this regulation is beyond the scope of Act 250 because it is preempted by federal law, there was no material change that triggers Act 250 jurisdiction. Accordingly, the Superior Court’s holding was affirmed.

In re Request for Jurisdictional Opinion re: Changes in Physical Structures and Use and Burlington International Airport, 117 A. 3d 457 (VT 3/6/2015)

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