Officials from the Vermont Agency of Transportation and Dover police chief Randy Johnson also came to the site visit and to the airport, and testified in favor of the proposal at a public Act 250 hearing that was held later the same morning at the town municipal building.
Fifty-six units have been approved at Snow Vidda and only about a portion of those have been built. During the site visit to the condominium development, at a signal from Brady Sullivan’s representatives, construction workers fired up a rock hammer drill that struck rocks at the rate of more than 60 times a minute, and an excavator commenced operation as well, creating a din of noise that made it difficult at times to hear all that was being said. Attorney Robin Stern, who was representing Brady Sullivan, said that the demonstration with the construction equipment showed that the noise levels at the condominium development were already far from normal, even without a helicopter.
“It’s not a meadow,” said Stern. “It’s a construction site.”
At the airport, Snow Vidda residents, lawyers, and government officials waited in the cold until the company’s helicopter approached flying low, touched down briefly, and took off again in a very short period of time.
Before taking expert testimony in the meeting room of the town offices on the potential impacts of sound on Snow Vidda residents, lawyers for the developer argued the commission had no say in whether noise levels would be excessive, claiming that decision was pre-empted by the Federal Aviation Authority. Stern said that other district commissions had declared themselves to be pre-empted by the FAA on noise.
Guy Rouelle, Vermont’s aeronautics administrator for the agency of transportation, which has granted permits for the project, concurred. “This would be a startling precedent if the commission did not acknowledge that the FAA pre-empts their authority to regulate noise from a helicopter,” he said. “Once an aircraft leaves the ground it is in national airspace. That’s just the way it is.” He cited examples of other commission chairs in other districts declaring that they were pre-empted, and stated that the issue of pre-emption had already been worked out in state Superior Court. “I would be very very concerned if we set a precedent here, for noise, for the first time in Vermont. I just want to be clear on that.”
“Can I ask a quick question?” Stephanie Gile, DEC district two coordinator, asked Rouelle. “Are you being paid by the applicant or are you here for the state of Vermont?”
“Excuse me?” asked Rouelle.
“I was just wondering because I know you have consulted for applicants in the past, and I was wondering if you are consulting for the applicant,” she said.
Rouelle said that it was a good question. “I am here for the state of Vermont and I am not being paid beyond the pittance I get from the state. But I won’t charge overtime,” he said, which drew laughter by the audience.
Rouelle also said that no applications are processed by VTrans unless the applicant had provided a letter from the town stating its approval of a project, and that Brady Sullivan had such a letter from the town of Dover.
Gile said she was the determiner of jurisdiction, not the commission, and she had already made the decision that the commission did have jurisdiction over this case, including criteria related to noise. The commissioners’ responsibility was to determine the merits of the case, not whether or not they had jurisdiction, she said.
Rouelle said there had been a sound study using EPA-approved methodologies, and that while sound was preempted and he did not consider sound in his decision-making process, the study found that noise levels associated with this particular project were within EPA guidelines. “It showed that it was far below the EPA’s thresholds, and all the things that the EPA looks at, including noise abatement, are not a factor for this particular helicopter operation.”
Meiky Huang, a resident of Snow Vidda, said the sound levels she experienced in her Snow Vidda residence when Brady Sullivan landed their helicopter without a permit in 2015 had greatly disturbed her. “The whole house was shaking. I thought something was coming onto the roof. I was so scared, and so worried.”
Snow Vidda resident Joe Lanzetta agreed, and said that the sound had startled and alarmed him. After hearing further testimony that average sound levels were used to determine the acceptability of noise impacts, Lanzetta said that any methodology that used average noise levels was not the right way to regulate noise exposure for people in their homes.
Nathan Stearns, attorney for the Snow Vidda residents, had two main points related to sound.“We are not arguing that the EPA standard is wrong,” he said, “and certainly if we were talking about aircraft flight, I agree that there would be no opening. The noise from aircraft flight is clearly regulated by the FAA. But we are talking about the location of a private landing pad for a helicopter in close proximity to homes.”
Stearns also said that he was intrigued by Rouelle’s testimony that sound had not even been considered in the permitting process of VTrans. “I was interested to hear that the state did not even consider noise. The question of federal pre-emption has come up but where there is no review of noise, where noise is not even a factor that is considered, there is a regulatory vacuum that is created.”
“I am not sure when to ask this question but why can’t you use the Deerfield Valley Airport?” commissioner Julia Schmitz asked Brady Sullivan’s representatives.
General counsel for Brady Sullivan Marc Pinard replied, “We can use the airport. But the problem with using the airport is that it is not nearly as efficient as being able to land at a project. When the airport is utilized, you have issues regarding transportation over to the condo site. We have a truck at the airport, and it gets cold here. You can get there and the truck battery can be dead. When there is not a vehicle there it can be almost impossible to obtain a ride from a cab service. There is an efficiency here that really benefits the community. If we can build out this condominium development in an efficient manner it’s going to benefit the community and the tax base. We can be in Snow Vidda, finish up a quick meeting, head to a project in New Hampshire, and then on to a project in Rhode Island. The airport can be used, but it’s simply not as efficient. We look at it (the helicopter) simply as another kind of vehicle.”
Stern said that the airport was “the obvious elephant in the room. There is an airport. They could use the airport but this (traveling to project sites) is part of their business model.” Stern also said the airport was a private one that had been sold recently, and that it had not always been plowed in the past.
According to Bob Harrington, an engineer working for Brady Sullivan, the helipad was a temporary one, and would be dismantled in four years.
Chris Campany, executive director of the Windham Regional Commission, asked Stern whether the town of Dover was prevented from talking about the matter. Stern repeatedly made replies that Campany said did not answer whether the town government had lost the ability to voice future concerns about the landing pad. Campany said that he was responsible for providing advice to towns. Stern eventually stated that she would not make any comments on Brady Sullivan’s agreement with the town.
Chair Jim Olivier asked if no one from the town was available to explain the chronology of Brady Sullivan’s obtaining permission from the town to construct the helipad. There was a brief silence.
In testimony about the potential for contamination of well water or the local streams with aviation fuel, Rouelle said that there was no plan to store fuel at the site, and that the helicopter would contain less than 50 gallons of fuel when it landed at Snow Vidda. Furthermore, he said that the company’s helicopter had a lined tank, giving it an extra level of protection from spills.
Johnson said that he and fire chief Rich Werner were supportive of the construction of the helipad, because it created a place where, in the event of an emergency, medical helicopters could land without the need for extra personnel to cordon the area off.
Olivier said that no decisions would be made until the commission had a chance to thoroughly review the testimony taken.