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SUPERIOR COURT ENVIRONMENTAL DIVISION Vermont Unit Docket No. 42-4-13 Vtec

Burlington Airport A250 JO 4-231 (F-35A Jets) 

### ENTRY ORDER

Decision on Cross-Motions for Summary Judgment and Motions to Strike Richard Joseph, Juliet Beth Buck, Roger Bourassa, and James Marc Leas (Appellants) appeal a March 21, 2013 jurisdictional opinion (JO) of the District 4 Environmental Commission Coordinator (District Coordinator) which determined that Act 250 jurisdiction does not apply to the proposed siting of 18 or 24 F-35A jets (F-35As) and approximately $2.3 million of new
construction to accommodate the F-35As at the Vermo nt Air National Guard (VTANG) base adjacent to the Burlington International Airport (A irport) in the City of Burlington, Vermont. The City of Burlington (the City) cross-appeals. N ow pending before the Court are crossmotions for summary judgment by the City and Appell ants, Appellants’ motion to strike paragraphs 12, 14, and 22 of the City’s Statement o f Undisputed Material Facts, and the City’s motion to strike portions of Appellants’ surreply. Appellants are represented by James A. Dumont, Esq., and the City is represented by Brian S. Dunkiel, Esq. and Erik G. Nielsen, Esq. The Vermont Natural Resources Board (NRB), represented by Peter J. Gill, Esq., and the Greater Burlington Industrial Corporation and Friends of th e Vermont Air Guard, Inc., both represented by Christopher D. Roy, Esq., entered appearances in this matter. The Greater Burlington Industrial Corporation and Friends of the Vermont A ir Guard, Inc. filed a Memorandum of Law in Response to Cross-Motions for Summary Judgment.
Factual Background For the purpose of putting the pending motions into context, we recite verbatim the City’s Statement of Undisputed Material Facts (SUMF ) (filed Nov. 1, 2013, citations omitted), which the Court understands to be undisputed other than Appellants’ objection to paragraphs 12, 14, and 22:2

1. [Burlington International Airport (BIA)] is owned a nd operated by the City of Burlington [(the City)]. BIA is an international airport deve loped with the use of federal funds.
2. Aircraft operations at what is now known as the BIA date back to 1920.
3. The history of Act 250 regulation of BIA dates to N ovember 18, 1971, when the City received its first Act 250 land use permit to insta ll and operate an airport hangar and support facilities.
4. BIA holds a number of Act 250 permits and amendment s, none of which regulate commercial or military aircraft operations, aircraf t noise, or aircraft operations of the [Vermont Air National Guard (VTANG)].
5. The District #4 Environmental Commission has specif ically rejected the notion that it has the legal authority to regulate any aircraft noise.
6. The VTANG maintains a base adjacent to BIA, which i s home to the Air Guard’s 158th Fighter Wing installation.
7. The land upon which the VTANG’s base is located is leased from the City of Burlington by the [United States Air Force (USAF)].
8. The land upon which the VTANG’s base is located is used by the VTANG under license from the USAF.
9. The VTANG base occupies approximately 280 acres of land to the east of BIA, where VTANG maintains 44 buildings in support of their mi ssion.
10. The land upon which the VTANG base is located was l eased by the City to the USAF for nearly thirty years prior to the time the airport w as first subjected to Act 250 jurisdiction.
11. From time to time, the City and the Federal Governm ent have executed supplements to their leases, with the latest one dated March 26, 2 012. Currently, the term of the Lease has been extended through June 30, 2048.
12.

. . . . 13. Pursuant to directives of Congress and the Secretar y of Defense, via fiscal legislation and the development of the “Joint Strike Fighter” progr am, the USAF, in conjunction with the Department of the Navy and the Marine Corps, is cha rged with preparing the military’s next generation aircraft, the F-35A, for combat. The US AF’s stated purpose for the beddown of the3

F-35A is to “efficiently and effectively maintain c ombat capability and mission readiness as the Air Force faces deployment across a spectrum of con flicts while also providing for homeland defense.”
14. The USAF controls the decision regarding where to b eddown the F-35A for training and mission-readiness purposes, and also controls the s cope of the construction and improvements needed wherever the aircraft are beddown.
15. The USAF is considering six potential sites for the beddown of the F-35A. One of these potential sites is at the VTANG Base.
16. The USAF issued its [Final Environmental Impact Sta tement (FEIS)] in September 2013 analyzing its proposed action – a decision regardin g where to beddown the F-35A.
17. The final federal decision about whether to site th e F-35A at VTANG will be made through a Record of Decision prepared by the Assist ant Secretary of the USAF, or his/her designee. [This decision was issued on December 2, 2013, as discussed in paragraph 23 below.]
18. Under two alternative scenarios considered by the U SAF, either 18 or 24 F-35A aircraft would be beddown at VTANG’s base.
19. Under either scenario, the USAF would install five internal infrastructure improvements associated with the beddown of the F-35A.
20. These improvements would occur entirely within exis ting VTANG buildings on its base.
21. The infrastructure improvements include: (1) intern al renovation to Building 120 for an F-35A Simulator; (2) Provide 270DC, 28DC Power in A ircraft Shelter Parking Areas; (3) Provide Secure/Classified Upgrades in Rooms 004/004A, Build ing 140; (4) Provide a Secure Parts Storage Area for ALIS, Building 70 Warehouse; and ( 5) Internal design improvements.
22. The F-35A will primarily be used by the VTANG for t raining missions. Should the F-35A be used in a combat mission or otherwise by the VTA NG, the USAF cannot conceive of a state purpose that it could be used for. Additional Factual Background beyond the City’s SUM F 23. On December 2, 2013, the U.S. Air Force issued its “Record of Decision (ROD) for the F35A Operational Basing Environmental Impact Stateme nt (EIS) (Federal Register, Vol. 78, No. 193, EIS No. 20130295, pg. 61845, October 4, 2013), ” stating that “the Air Force has decided to4

base eighteen (18) F-35A aircraft with associated c onstruction at Burlington AGS in Vermont to accommodate aircraft anticipated to start arriving in 2020.” 1 (Appellants’ Surreply to City’s Mot. for Summ. J., Attach. 14, filed Jan. 10, 2013; Interested Persons’ Mem. of Law in Resp. to Cross-Mots. for Summ. J., Ex. A, filed Dec. 23, 201 3). 24. Airport runway 15-33 (the runway) is shared wit h the VTANG and the USAF, and a number of Act 250 permits relate to the runway. Appellants’ Statement of Undisputed Facts Appellants also submitted a Statement of Undisputed Facts. The facts presented by Appellants do not alter or add to the Court’s adopt ion of the City’s SUMF above or are immaterial to the legal determinations presented to the Court in the cross-motions for summary judgment. Appellants’ paragraph 5 does sta te that Airport runway 15-33 (the Airport runway) is shared with the VTANG and the USAF and t hat a number of Act 250 permits relate to the runway. The City does not dispute this fact, a nd we have therefore incorporated this fact in paragraph 24 above.

Motion to Strike Paragraphs 12, 14, and 22 of City’ s SUMF In their opposition to the City’s motion for summa ry judgment, Appellants object to paragraphs 12, 14, and 22 of the City’s SUMF, and a sk the Court to strike these three paragraphs, which state the following: 12. Fighter aircraft operations at the VTANG Base h ave been conducted for purely federal purposes since the base was initiall y leased to the USAF back in the 1940s. See Letter from Randon H. Draper, Colonel, USAF, to Attorney James A. Dumont , responding to appellants’ discovery requests (US AF Discovery Response), at 4 (July 31, 2013) (attached and label ed Exh. E) 14. The USAF controls the decision regarding where to beddown the F-35A for training and mission-readiness purposes, and al so controls the scope of the construction and improvements needed wherever the a ircraft are beddown. See USAF Discovery Response at 3–4 ( Exh. E. ); FEIS §§ 1.0, 1.2.1, 1.5, 4.0 ( Exh. B ). 22. The F-35A will primarily be used by the VTANG f or training missions. Should the F-35A be used in a combat mission or oth erwise by the VTANG, the USAF cannot conceive of a state purpose that it cou ld be used for. FEIS § 1.3 ( Exh. B ); USAF Discovery Response at 4 ( Exh. E ).

1 Thus, we disregard the City’s SUMF paragraphs 17 a nd 18, with the understanding that the USAF has dec ided to beddown 18 F-35As at the VTANG base.5

Following Appellants’ service of interrogatories an d requests to produce on the City and a subpoena duces tecum and subpoena for deposition te stimony on the VT Air National Guard, Colonel Randon H. Draper of the U.S. Air Force sent a letter to Appellants regarding these requests. Appellants argue that Colonel Draper’s l etter, cited in each of these three questions, is hearsay from a non-party, which has not been submit ted to the Court under oath, contrary to V.R.C.P. 56(e). Appellants assert that the letter contains inadmissible conclusory statements of opinion without foundation. Because paragraphs 12, 14, and 22 of the City’s SUMF rely on these statements, Appellants argue that they should be st ricken. Appellants state that if this Court intends to rely on the letter, they further move pu rsuant to V.R.C.P. 37(a)(2) for an order compelling the VT Air National Guard to produce the witnesses identified in Appellants’ earlier subpoenas to answer, under oath, the questions set forth in the subpoena and to produce the requested documents. In the summary judgment analysis that follows, we do not consider Colonel Draper’s letter, and do not rely on paragraph 12. To the ex tent we rely on the statements of facts contained in paragraphs 14 and 22, we find adequate support for those statements elsewhere in the record, specifically in the FEIS, to which Appe llants do not object and portions of which Appellants themselves attached to their filings. T hus, we need not consider the admissibility of Colonel Draper’s letter, and we therefore STRIKE the City’s SUMF paragraph 12 and DENY Appellants’ motion to strike paragraphs 14 and 22.
Summary Judgment Standard The Court will grant summary judgment if a moving party demonstrates that “there is no genuine dispute as to any material fact and the mov ant is entitled to judgment as a matter of law.” V.R.C.P. 56(a); V.R.E.C.P. 5(a)(2). When co nsidering cross-motions for summary judgment, the court looks at each motion individual ly and gives the opposing party the benefit of all reasonable doubts and inferences. City of B urlington v. Fairpoint Commc’ns, Inc., 2009 VT 59, ¶ 5, 186 Vt. 332. The court also accepts as tr ue all factual allegations made in opposition to a motion for summary judgment so long as they are s upported by “specific citations to particular parts of materials in the record . . . . ” V.R.C.P. 56(c)(1)(A).6 Act 250 Jurisdiction The Legislature enacted Act 250, 10 V.S.A. §§ 6001 through 6093, over forty years ago “to protect Vermont’s lands and environment by requ iring statewide review of ‘large-scale changes in land utilization.’” In re Audet, 2004 V T 30, ¶ 13, 176 Vt. 617 (mem.) (quoting Comm. to Save Bishop’s House, Inc. v. Med. Ctr. Hosp. of Vt., Inc., 137 Vt. 142, 151 (1979)). A “person” proposing land “development” must obtain an Act 250 permit. 10 V.S.A. § 6081(a). A municipality or State agency is a “person” under Ac t 250; a federal agency is not. 10 V.S.A. § 6001(14)(A). “Development” is defined as one or mo re of 10 listed activities, including “[t]he construction of improvements on a tract of land inv olving more than 10 acres that is to be used for municipal, county, or state purposes.” 10 V.S. A. § 6001(3)(A)(v). Act 250 Rule (2)(C)(3) defines “construction of improvements” as “any phys ical action on a project site which initiates development,” subject to certain enumerated excepti ons. Natural Resources Board Act 250 Rules, Rule 2(C)(3), Code of Vt. Rules 16-5-200:2(C )(3) (WL) (2009). 2 “State, county or municipal purposes” means the construction of improvements wh ich 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.” Id. at 16-5-200:2(C)(15). Whether the F-35A Siting and Associated Improvement s Constitute “Development” Appellants argue that the VTANG is a state agency s erving state purposes. They further argue that because the F-35As will be sited and mai ntained at the VTANG base, the construction of improvements and siting of the F-35 As will be undertaken for the state and used by the state, constituting development subject to Act 250 jurisdiction. In the early 1980s, the former Environmental Board considered the construction of improvements associated with the replacement of EB- 57 aircraft with F-4 aircraft at the VTANG base to carry out the “national defense mission of the Air Guard.” The Environmental Board concluded that the purpose of the construction was a “federal purpose” because the improvements would be constructed, funded, and owne d by the federal government, and the improvements would be located on more than ten acre s of land controlled by the federal

2 Rule 2(C)(3) was amended effective October 1, 2013 . Code of Vt. Rules 16-5-200:2(C)(3) (WL) (2013). Because the JO was requested in December 2012 by Appellants and January 2013 by the City, the 2009 language ap plies here.7

government. Re: Vt. Air Nat’l Guard, Findings of F act, Conclusions of Law and Order, No. 134, at 3 (Vt. Envtl. Bd. July 20, 1982). In its conclusio ns of law, the Environmental Board acknowledged that “the Air Guard is a state organiz ation that both ‘serves the state in time of civil emergencies within the state’ and is ‘availab le for federal service during national emergencies.’” Id. (quoting Mela v. Callaway, 378 F. Supp. 25, 28 (S.D.N.Y. 1974)). The Board then addressed an argument similar to that made by Appellants here, essentially that because the construction of improvements would serve a stat e purpose at least in part, the construction meets the definition of development in 10 V.S.A. § 6001(3). The Environmental Board concluded, however, that because the proposed const ruction had an independent federal purpose (national defense) and was controlled by th e federal government, it was “not for state purposes within the meaning of 10 V.S.A. § 6001(3). ” Id. at 4. We are directed to give prior decisions of the Environmental Board the same weigh t and consideration as prior decisions of the Environmental Division. 10 V.S.A. § 8504(m). The parties do not dispute that the stated purpose for both the siting of the F-35As and the internal building improvements is to “efficient ly and effectively maintain combat capability and mission readiness as the Air Force faces deploy ment across a spectrum of conflicts while also providing for homeland defense.” See City’s Ex . B at 1-6. This is a federal purpose, independent of any ancillary state purpose. Any st ate purpose served by the building improvements and F-35A siting, if one exists, does not supersede this federal purpose. It is also undisputed that the internal improvements and sitin g of F-35As will be constructed, funded, and owned by the federal government and that they w ill all be located on land controlled by the federal government. Viewing the undisputed fac ts in the light most favorable to Appellants, we conclude that the proposed improvements and F-35 A siting are proposed by a federal agency for a federal purpose, and not for state pur poses within the meaning of 10 V.S.A. § 6001(3). Thus, the building improvements and F-35A siting are not “development” under Act 250, and the City is entitled to judgment as a matt er of law that the proposed activities at the VTANG base do not require an Act 250 permit.8

Material Change to a Permitted Development Act 250 Rule 34(A) requires a permit amendment for “any material change to a permitted development.” Natural Resources Board Ac t 250 Rules, Rule 34(A), Code of Vt. Rules 16-5-200:34(A) (WL) (2009). A “material change” is “any change to a permitted development or subdivision which has a significant impact on any f inding, conclusion, term or condition of the project's permit or which may result in a significa nt adverse impact with respect to any of the [10 Act 250 criteria].” 3 Natural Resources Board Act 250 Rules, Rule 2(C)( 6), Code of Vt. Rules 16-5-200:2(C)(6) (WL) (2009) (emphasis added). The Environmental Board adopted a two-step analysis for determining whether there has been a m aterial change. First, there must be a change to the proposed development, which includes either a physical change or a change in use. Second, the change must either have a signifi cant impact on any finding, conclusion, term, or condition of the project's permit or have the po tential to result in a significant adverse impact with respect to any of the 10 Act 250 criter ia. 4 Re: Hiddenwood Subdivision, No. 378, Findings of Fact, Conclusions of Law, and Order, at 10 (Vt. Envtl. Bd. Jan. 12, 2000) (citations omitted). Although we do not have the Act 250 permits before us, it is undisputed that the Airport runway 15-33 (Airport runway) is subject to Act 250 permits and that the F-35As will use the Airport runway. Thus, although we find that the si ting of the F-35As and construction of internal improvements do not qualify as “developmen t” and therefore do not, standing alone, require an Act 250 permit, we consider whether the F-35As’ use of the Airport runway is a material change that requires a permit amendment. In the first step of the material change analysis, the Court must determine whether the F-35A use of the Airport runway constitutes a physi cal change to or a change in use of a permitted development. Id. at 10–11. In consideri ng whether a change is proposed, we must

3 Prior to the amendment of the material change defi nition effective July 10, 2009, a material change w as “any change to a permitted development or subdivision wh ich has a significant impact on any finding, conclu sion, term or condition of the project's permit and which may result in an impact with respect to any of the crit eria specified in 10 V.S.A. Section 6086(a)(1) through (a)(10).” C ode of Vt. Rules 16-5-200:2(C)(6) (WL) (2007) (emph asis added). Because the JO was requested in December 2012 by Ap pellants and January 2013 by the City, the 2009 lan guage applies here. 4 Although we adopt the Environmental Board’s two-st ep analysis, we note that the specific requirements of step two are modified by the amended material change def inition.9

consider “the scope of the [development] initially reviewed and approved by the [District Commission]” and whether the proposed activities “w ere contemplated as part of the approved project in the first instance by the [District Comm ission].” Re: Vermont Institute of Natural Science, No. 352, Findings of Fact, Conclusions of Law, and Order, at 26 (Vt. Envtl. Bd. Feb 11, 1999); see Re: Developer's Diversified Realty Corp. , Nos. 364, 371, and 375, Findings of Fact, Conclusions of Law, and Order, at 18 (Vt. Envtl. Bd . Mar. 25, 1999) (finding that retail use of Berlin Mall space was contemplated in permit issuan ce, and absent any conditions regarding the type of retailer, the lease of space to Wal*Mar t rather than continuing the lease to Rich’s Department Store was not a change in use). The City proposes no physical change to the runway itself, and Appellants assert none. We therefore find that no physical change is propos ed for the permitted development. 5 Appellants assert that the F-35A is a different typ e of aircraft and that it emits more noise than any aircraft types that have used the runway to dat e. In considering the proposed use of this runway, however, we conclude that the USAF’s change from one type of aircraft to another is not a change in the use of the runway absent eviden ce that a new type of aircraft using the runway is beyond the scope of the development consi dered in the review and approval of the City’s Act 250 permits for the runway. No such evi dence has been presented to the Court. To the contrary, it is undisputed that for nearly thir ty years prior to Act 250 jurisdiction first attaching to the Airport, the USAF leased land at t he Airport from the City. The land leased by the USAF is nearby the runway, and the USAF shares the runway with other aircraft. It is also undisputed that the City’s Act 250 permits do not r egulate aircraft operations. The F-35A is simply another type of aircraft using the shared ru nway, and there is no evidence that prior Act 250 permit findings or conditions prohibit a change in aircraft type. We therefore conclude that the F-35A use of the runway is not a change in use. Because we find no physical change or change in use, we need not consider the second step of the material change analysis. We find

5 Because we find no physical change to the Airport runway, we conclude that there will be no substanti al change to a pre-existing development as defined by Act 250 Rules 34(B), 2(C)(7), and 2(C)(8). See Sec’y, Ver mont Agency of Natural Res. v. Earth Constr., Inc., 165 Vt. 160, 164 (1996) (noting that the two-pronged test for a substantial change in a pre-existing development requires that there be a “cognizable physical change”).10

no material change to a permitted development; ther efore, an Act 250 permit amendment is not required. For the reasons stated above, we conclude that the siting of the F-35A and related improvements as presented here are not subject to A ct 250 jurisdiction. We also conclude that the F-35A use of the Airport runway does not requir e a permit amendment. The City’s motion for summary judgment is therefore GRANTED , and Appellants’ cross-motion for summary judgment is DENIED. City’s Motion to Strike Portions of Appellants’ Sur -Reply Because we grant summary judgment in the City’s fav or, the City’s motion to strike is
MOOT. Conclusion For the reasons stated in detail above, the Court c oncludes that the proposed alterations to the VTANG base and the proposed siti ng of the F-35A jets at that base do not constitute development and therefore do not require an Act 250 permit. Furthermore, no physical change or change in use is proposed for th e Airport runway, and amendment of the Act 250 permits for the runway is therefore not req uired. Finally, we find no substantial change to a pre-existing development. We therefore GRANT the City’s Motion for Summary Judgment and DENY Appellants’ Cross-motion for Summary Judgment. In considering the motions, we did not rely on Colonel Randon H. Draper’s letter, and we GRANT Appellants’ motion to Strike the City’s SUMF paragraph 12 which was based entirely o n that letter. In all other respects we
DENY Appellants’ motion to strike. We also DENY as MOOT the City’s motion to strike portions of Appellants’ surreply. This completes the current proceedings before this Court. A judgment order accompanies this decision. Electronically signed on May 13, 2014 at 10:48 AM p ursuant to V.R.E.F. 7(d).

_________________________________________ Thomas G. Walsh, Judge Superior Court, Environmental Division