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VERMONT SUPERIOR COURT

Environmental Division Docket No. 23-ENV-00040

32 Cherry St, 2nd Floor, Suite 303, Docket No. 23-ENV-00039

Burlington, VT 05401

802-951-1740

www.vermontjudiciary.org

Clark CU & AU Appeal

ENTRY REGARDING MOTION

Title: Motion for Partial Judgment on the Pleadings (Motion: 1)

Filer: Jonathan T. Rose, Esq.

Filed Date: August 14, 2023

Interested Person Marilyn Ganahl Opposition to Partial Motion for Judgment on the Pleadings, 

Cross-Motion for Judgment on the Pleadings or, in the Alternative, Motion to Strike, filed 

on September 5, 2023, by Attorney Claudine Safar.

Appellant/Applicant’s Consolidated Reply in Support of Motion for Partial Summary Judgment 

and Opposition to Interested Person Ganahl’s Cross-Motion for Judgment on the 

Pleadings, filed on September 19, 2023, by Attorney Jonathan Rose.

The motions are GRANTED IN PART and DENIED IN PART.

In this coordinated appeal, Kyle and Katie Clark (Applicants) appeal two decisions of the 

Town of Lincoln Zoning Board of Adjustment (ZBA) related to their application to site a landing 

area for airplanes at their property located at 432 Orchard Road North, Lincoln, Vermont (the 

Project). In the first, Applicants appeal a decision of the ZBA denying their application for an 

accessory use permit for the Project (the Accessory Use Appeal). In the second, Applicants appeal 

a decision of the ZBA denying their application for a conditional use permit for the Project (the 

Conditional Use Appeal). Presently before the Court are Applicants’ and Interested Person 

Marilyn Ganahl’s cross-motions for partial judgment on the pleadings on Accessory Use Appeal 
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Question 5 and Conditional Use Appeal Question 8, which generally address the issue of federal 

preemption.1

Legal Standard

Pursuant to V.R.C.P. 12(c), judgment on the pleadings is appropriate when “the movant 

is entitled to judgment as a matter of law on the basis of the pleadings.” Messier v. Bushman, 

2018 VT 93, ¶ 9, 208 Vt. 261 (quotation omitted). When reviewing a motion for judgment on the 

pleadings, we assume “all well pleaded factual allegations in the nonmovant’s pleadings and all 

reasonable inferences that can be draft therefrom” are true and “all contravening assertions in 

the movant’s pleadings” are false. Thayer v. Herdt, 155 Vt. 448, 456 (1990) (quotation omitted). 

Discussion

There is one fact that is relevant to the pending motion. That is that the Project is for an 

airstrip at the Clark’s home. This is established in the pleadings, including Applicant’s notice of 

appeal, which attaches the relevant decisions. See Applicant’s Notices of Appeal (filed on April 

23 and 25, 2023).

The parties move for judgment on the pleadings relative to Accessory Use Appeal

Question 5 and Conditional Use Appeal Question 8. These Questions as:

5. Is review of aircraft operation as an accessory use or other 

review under the [Lincoln Zoning Regulations] preempted in part 

by the Federal Aviation Act, 49 U.S.C. § 40101, et seq.?

8. Is review of aircraft operation as a conditional use preempted in 

whole or in part by the Federal Aviation Act, 49 U.S.C. § 40101, et 

seq.?

Applicant’s Statements of Questions (both filed May 16, 2023).

The parties do not dispute that federal law partially preempts local zoning review for 

aircraft operations. Instead, the parties dispute the scope of zoning review because of federal 

preemption. Applicants offer that Vermont case law establishes broad federal preemption of 

zoning review to the point of functional elimination. Ms. Ganahl asserts that the federal law 

1 Ms. Ganahl’s motion includes an alternative motion to strike in its title but does not elaborate on this 

motion. 

Additionally, also appearing in this matter as interested parties are Mark and Stephanie Atkins, Louella 

Bryant, Sarah Farr, Christine Fraioli, Michelle Ann Hall, Sarah Laird, Michael O’Connor, Louise Rickard, and Jacquelyn 

Tuxill (together, Interested Parties). The Interested Parties did not file memoranda regarding the pending motion.
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preempts a narrow scope of zoning review. The Court’s review of the relevant law shows that 

federal preemption of local zoning for aircraft operations is neither as broad as Applicant’s 

propose nor as narrow as Ms. Ganahl proposes.

The Vermont Supreme Court has addressed the Federal Aviation Act’s (FAA) preemption 

of local zoning in In re Request of Jurisdictional Opinion re: Changes in Physical Structures & Use 

at Burlington Int’l Airport For F-35A (hereinafter F-35A). 2015 VT 41, 198 Vt. 510. In F-35A, the 

Vermont Supreme Court recognized that “Congress has occupied the entire field of regulations 

related to aircraft noise, and attempts by local governments to enforce their police powers to 

control noise or affect flight patterns are preempted.” Id. at ¶ 28 (citing Price v. Charter Twp. Of 

Fenton, 909 F.Supp. 498, 502—03 (E.D.Mich. 1995)). In so concluding, the F-35A Court expressly 

recognized that “[a] local entity retains control over land-use regulation . . . .” Id. at ¶ 30. This 

control, however, “cannot, under the pretense of its zoning power, attempt to regulate those 

flight operations to quell airplane noise.” Id. (quoting Price, 909 F.Supp. at 504; Harrison v. 

Schwartz, 319 Md. 360, 572 A.2d 528, 534 (1990) (“A zoning ordinance that does not regulate 

aircraft noise emissions or the actual conduct of flight operations may withstand a preemption 

argument.”)). The F-35A Court reiterated that “although ‘the federal government has not 

pervasively occupied the field of land-use regulations relating to aviation,’ any attempt to 

regulate air safety or aircraft noise is preempted by federal law.” Id. (quoting In re Commercial 

Airfield, 170 Vt. 595, 597 (2000) (mem.)).

Thus, the law is clear. Zoning regulations are partially preempted by the FAA in the area 

of noise and flight operations. The Clarks have not identified any accessory use criteria within 

the Lincoln Zoning Regulations (Regulations) directly within the scope of the preempted topics. 

See Appellants’ Motion at 5. As such, no specific provision of the accessory use criteria is 

specifically preempted. Furthermore, the Court will not apply any provision of the accessory use 

criteria as to indirectly implicate a preempted topic.

Conditional use criteria are partially preempted by the FAA to the extent that they 

regulate aircraft noise and flight operations. These preempted criteria include Regulation 

§ 736(8), which requires an applicant to demonstrate that their project will not result in excessive 

noise, and Regulation § 733(5), which requires an application to include “a description of the 
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hours of operation and a plan demonstrating measures the applicant proposes to take to mitigate 

any impacts (noise, dust, odor, etc) the proposed use may have on surrounding properties.” 

Thus, because these provisions directly implicate a preempted topic, they are preempted. The 

remainder of these provisions which do not address preempted topics remain before the Court.2

Lastly, the conditional use criteria that do not facially address aircraft noise or flight 

operations are not preempted by federal law. These include Regulations § 735(1) through (5)

and Regulations § 736, § 736(1) through (7), (9) through (16). Thus, these provisions of the

regulations are not preempted by federal law. The Court will not apply them as proxies to 

regulate a preemptive topic.

For the reasons set forth herein, Accessory Use Question 5 is answered in the affirmative. 

Conditional Use Question 8 is answered in the affirmative with respect to partial preemption of 

the conditional use criteria and in the negative with respect to total preemption thereof.

Electronically signed this 18th day of October 2023 pursuant to V.R.E.F. 9(D)

Thomas G. Walsh, Judge

Vermont Superior Court, Environmental Division

2 We further note that, should there be non-aircraft noise associated with the Project, the Clarks have 

presented no legal authority for the Court to conclude regulation of such noise would be preempted.