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BFP article on legal argument


Burlington Free Press front page article:

F-35 opponents consider new legal argument

New attorney for coalition says Burlington may be liable for homeowner compensation

6:47 AM, Sep 24, 2012

The Stop the F-35 Coalition, a group of Burlington, South Burlington, Winooski, Williston and Colchester residents opposed to basing the Air Force’s new fighter bomber at Burlington International Airport’s Air Guard station, has hired an attorney.

James Dumont, a Bristol attorney, has sent public records requests on behalf of the coalition to Burlington, to the airport and to the Air Force.

He has asked the Air Force for:

• Records of Act 250 applications pertaining to the F-35.

• Records regarding compensation for property owners affected by changes at the airport

• The scoring sheets rating each potential base for the F-35A.

• Documents recording “existing or projected or modeled noise” inside South Burlington’s Chamberlain Elementary School.

He has asked Burlington and the airport for:

• Act 250 permits and applications for the airport.

• South Burlington zoning permits for the airport, including any permits pertaining to the F-35 basing.

• Records regarding compensation or discussion of the process that would be used for compensation for homeowners that may be required if the F-35 is based at BIA, including any discussions of whether Burlington taxpayers might be liable for any compensation costs.

Burlington city officials did not respond immediately to a request for comment on Dumont’s request for records.

Dumont said the Vermont Supreme Court has ruled that airports are not entirely exempt from Act 250 provisions and that the “new use” the F-35A represents could require Act 250 approval.

“It’s not just the noise, per se,” he said, referring to the substantial increases in noise outlined in the Air Forces Draft Environmental Impact Study released earlier this year. “But some of these houses, potentially thousands, may have to be bought out, and that will change the character of these neighborhoods. Act 250 and local zoning both apply to those changes.”

He said Burlington, as “landlord” for the airport, may also be liable “for the activities of the tenant.”

“As I understand the law,” he said, “an excellent argument (can be made) that the city may be responsible for the damages suffered by property owners. The city may be left holding the bag, and Burlington needs to know that before this goes any further.”

He said he has not yet had discussions with city officials but has made the records request to “see how much the city has considered these issues.”

In his letter to the city and airport, he wrote that his clients include homeowners “whose property may suffer enormous diminution in value if the F-35 project is approved. Much of their lifetime savings is invested in their homes,” he said, “and these savings are now in jeopardy.”
Other of his clients, he said, are those who may be affected by the changes that occur in their neighborhoods as a result of noise from the new fighter.
James Leas, another attorney working with the coalition, said the group is mounting a “two-pronged strategy” to fight the F-35 basing: public meetings intended to increase public awareness and involvement in the issue; and, now, a legal approach.
“We think these legal activities will have an effect,” he said. “They put the city on notice they could be liable to all of these homeowners.”
He said that additionally the legal action, funded by small contributions from coalition supporters, may attract additional residents.
South Burlington City Council Chairwoman Rosanne Greco, who has been a leader in alerting local communities to the potential environmental impact of the F-35A, said the South Burlington council is waiting for the release of the completed Environmental Impact Study — originally scheduled for October or November.
Nick Germanos, the F-35 environmental case officer at Langley Air Force Base who has been the official explainer of the EIS process, said the release of the report may be delayed while further analysis of the required F-35A range is conducted by the Air Force.
When the report does come out, he said, Burlington will learn if it remains the Air Force’s base of choice, how many fighters would be based at Burlington International Airport and what mitigation measures the Air Guard would follow to lessen the environmental impact of the fighter. He said the report will address earlier public comments. Additional public comment during the 30-day review period will be considered by the office of the Assistant Secretary of the Air Force for Installations, he said.
Greco said the city has received data from the Air Force allowing the creation of detailed sound maps projecting F-35A noise.
Those maps are on display in City Hall in the first-floor conference room where the council meets.

“People can come in to City Hall and find their own house on the maps,” she said.