Council Discusses F35 Lawsuit

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Thursday January 01, 1970

For years, the South Burlington City Council has been discussing not only the basing of the F35 at the Vermont Air Guard, but also the health, safety, and noise concerns associated with the beddown, now slated to occur one year ahead of schedule, in 2019. Robust debate has occurred regarding the Final Environmental Impact Statement (FEIS) from the Air Force and whether concerns about safety and noise impacts to the area have been sufficiently addressed. The topic resurfaced this week when the city council agenda, posted on Friday, June 3, for its regularly scheduled Monday meeting listed the consideration and possible adoption of a resolution to intervene in the F35 lawsuit.

At the city council meeting Monday, June 6, a resolution was discussed that would make the City of South Burlington a party plaintiff in the F35 National Environmental Policy Act (NEPA) litigation of Zbitnoff et al v. Secretary of the Air Force Deborah Lee James. The resolution states that James issued the FEIS under the NEPA on September 13, 2013, which indicates that as a result of the operation of the F35 at Burlington International Airport, some 2,963 households, many of which are located in South Burlington, will be subject to noise levels that the Air Force acknowledges are incompatible for residential use. It also says that safety issues and risks were not disclosed or analyzed sufficiently.

The resolution has six points, the first being that the City of South Burlington continues to support the operation of the F35 at the Burlington International Airport. The resolution states that the city has important interests and concerns regarding noise impacts and safety issues that have not been adequately addressed through the FEIS, and that the city should be joined as a plaintiff in the suit.

The City of Winooski joined the F35 National Environmental Policy Act Litigation along with the Stop the F35 Coalition and six Chittenden County residents in April 2015. Although the lawsuit alleges non-compliance on nine different issues, Winooski has joined only on the issue of noise. They made an initial investment of $7,500 with another $5,000 approved in March 2016 to continue to be involved in the suit. The financial commitment on South Burlington’s part, should the city decide to become a party in the lawsuit, was not discussed Monday night.

Chair Helen Riehle read a statement saying that the council would not be voting that night on the resolution regarding potentially intervening as a plaintiff in the litigation, Zbitnoff et al v. Deborah Lee James. Riehle cited two goals in becoming a party— acquiring information regarding safety once the F35s arrive, and noise mitigation. Riehle said that it is imperative that the community receive sufficient information from the Air Force to assess the safety issues and risks and to know how best to protect citizens and emergency personnel from deadly exposure due to a crash involving a plane with significant composite materials.

Riehle touched upon the issue of the impact of noise on Chamberlin School and the process the school has undertaken regarding re-organization of schools, and mentioned the financial uncertainty regarding who will pay for noise mitigation. She said both the city and school have sought answers to these concerns, “to no avail. ”

Riehle also dispelled the rumors that the Air Guard would fail to have a mission if the F35 did not arrive, by quoting directly from the Secretary of the Air Force, Deborah Lee James. On March 7, 2016, the Secretary of the Air Force’s memorandum before the United States District Court, stated that claims that VTANG would lose a flying mission was “unfounded speculation” and that it was “hearsay” to say there would be no military aircraft in Burlington.” James’ statement offers a few possible flying missions for VTANG if the F35s did not come here, including keeping the current F16 until they aged out, retro-fitting current F16s, replacing current F16s with newer or acquiring another fighter aircraft.

After the council completed an executive session with the city attorney and city manager to discuss the range of options available to acquire further information regarding safety and noise mitigation efforts associated with the F35 arrival, they embarked on a vigorous discussion of process, options and concerns.

Riehle said, “I see it as our duty and responsibility as elected officials to get as much information as possible to help our city and citizens plan accordingly. The plaintiffs in the lawsuit are asking the judge to order the Air Force to abide by the law and provide the information they were required to provide under the National Environmental Policy Act. Joining the lawsuit is our best chance to get the information we need to prepare ourselves as best we can for for the safety and noise impacts that come with the F35.”

City Attorney Jim Barlow briefed the council on their options both before and after executive session. Barlow pointed out the need to consider the timeliness of a council request to intervene given that the case will be heard by the U.S. District Court next month. Barlow explained he wasn’t rushing the council to a decision but they should consider the necessity of time for preparation. Another option, that does not involve litigation, Barlow noted, would be direct contact with the Air Force.

Councilors were split on whether or not pursuing the legal route to attain the information was the appropriate next step. Pat Nowak suggested there may be other methods for getting their questions answered that do not involve a lawsuit and cautioned against using taxpayer dollars to enter the lawsuit “at the 11th hour.” Tom Chittenden agreed vehemently, citing the need for additional public input. Chittenden noted that Winooski was involved in a lengthy process including a public vote prior to becoming involved with the lawsuit.

Meaghan Emery said she thought there was a moral imperative to joining the lawsuit as a vehicle to attain the information. “Wait and see is not good policy,” Emery said.

Public Comment

Prior to opening the floor for public comment, Riehle made it clear that the council wasn’t looking for information on whether or not people supported the basing of the F35 in South Burlington, as that decision has already been made. They wanted to hear about alternative solutions for getting the information they are seeking and residents’ concerns (or not) about safety or noise. Over 80 individuals were present and 30 made public comments on the topic.

Several individuals, including a resident whose children attend Chamberlin School, expressed caution against engaging in the lawsuit; particularly due to the timing of the discussion, a month out from the court date.

Resident Mike Simoneau said that the introduction of this issue at such a late hour was “inconsistent with transparency” and that the public should be solicited further for their opinions. Others felt the issue should have been on the ballot in March.
South Burlington resident Mark Abrams said that he is “pro-military” and “pro-balance in life” and he expressed concern over the toxicity levels on the coating of the F35 and the possibility of a crash and burn that could make the area “as close to radioactive as we can get.”

Michael Mahoney, a Vietnam veteran and Winooski resident said he feels the F35 has not proven itself yet, he is concerned about health and well being. “I’ve heard people reference the “sound of freedom” from the jets overhead...there are other sounds of freedom like children playing or sounds of music at a BBQ. Mahoney thanked the council for looking out for the well being of all Chittenden County residents.

The case will be going before the U.S. District Court July 5. Over the next week, councilors will send their comments to Riehle, who will aggregate them in advance of their next meeting Monday, June 13 at City Hall, where next steps will be considered.

SOURCE: Corey Burdick, Correspondent