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F-35 foes lose permit ruling appeal, but justice calls noise impact 'alarming wake-up call'

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MONTPELIER, Vermont — Opponents of F-35 fighter planes coming to the Burlington International Airport lost a Vermont Supreme Court appeal over state permitting on Friday, but one justice called the potential jet noise "an alarming wakeup call."

The Vermont Air National Guard is scheduled to get 18 F-35s in 2020. Some people who live near the airport oppose the idea, arguing the jets will be too loud and lower property values.

In May, an environmental court judge said the upgrades needed to fly F-35s from the National Guard base at the airport were not subject to a state land-use review because they served no state purpose.

The opponents appealed, arguing that the Vermont Guard's role makes it a state activity and therefore subject to state review.

But the Vermont Supreme Court on Friday disagreed, saying "the construction will serve solely a federal purpose."

The stated purpose for the program is to "efficiently and effectively maintain combat capability and mission readiness as the Air Force faces deployment across a spectrum of conflicts while also providing for homeland defense," the court said. The U.S. Air Force "can conceive of no state purpose that the F-35A could be used to attain," the court said.

But retired Justice James Morse, who was specially assigned to the case, noted that the court largely disregarded "the overpowering assault on the senses produced" by the aircraft and suggested other remedies may be available.

"The record evidence of the F-35A's noise impact on the area surrounding the Burlington International Airport is an alarming wake-up call," he said, while acknowledging that the court is correct that federal law preempts direct state and local regulation of noise generated by aircraft in flight.

Morse said an argument could be made that the F-35s will create a public nuisance.

"While a public-nuisance suit may be less than what the affected residents had hoped for, it may at least provide some redress for an injury they are powerless to prevent," he wrote.

Lawyer Jim Dumont says his clients are disappointed with the ruling, but he called Morse's comments "a recognition of the seriousness of the problem." The opponents also filed a federal lawsuit over the summer and recently received 8,000 documents from the Air Force, he said.

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