Housing development within F-35 flight path expected to proceed

TONE | Olivia Williams |December 6, 2021
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[Note from Safe Skies Clean Water WI: What’s the real answer? Stop the F-35s!!!]

With a moratorium on new development dead in the water, Council representatives and developers continue exploring sound mitigation strategies for F-35s.

Illustration by Andrew Mulhearn. An F-35 fighter jet flying overhead is reflected in a yellow coffee mug, which sits on a pale purple table against a deep purple background.

F-35 fighter jets, still scheduled to arrive at Truax in 2023, threaten the neighborhoods and residents around the airport with extreme noise. The news coming out of Burlington is bad, to say the least.

While the fight isn’t over (protests and legal battles to stop the F-35s from arriving in Madison continue), City staff and elected officials have been considering for the last few months what the options are for restricting development or encouraging sound mitigation in the flight path. The questions of what to do to support those who already live in the flight path and what kind of developments to allow going forward are ethical dilemmas colored by a housing shortage and state pre-emptions that limit Madison’s options. Even federally-funded sound mitigation options cannot be expected to begin until 2027 at the earliest.

The Environmental Impact Statement (EIS) drafted by the Air Force estimates average noise levels expected in neighborhoods around the airport. The 65 decibel (dB) contour outlines areas that the Air Force considers “incompatible” with residential use, or “conditionally compatible” if sound mitigation is undertaken, as explained in this City staff analysis of the EIS. A Madison Common Council President’s Work Group on Environmental Justice (EJ Work Group) started meeting in July to discuss options for development within the contour, all of which upon further consideration are fairly limited by state law.

Initially, there were talks of a development moratorium. Assistant City Attorney Kate Smith explored the option and reported on the state law for development moratoria to the EJ Work Group at the September 20 meeting. The development moratorium could last one year at the most, and it would require a doctor to say there is an immediate health risk with sufficient data to implement it.

The EJ Work Group then explored the possibility of restricting new development longer term with zoning (via an overlay zone) within the 65 dB contour. The staff gave presentations about how current neighborhood plans and the Comprehensive Plan intersect with the dB mapped on the EIS (at the August 30 meeting), and showed where potential development sites lay on the map (at the September 20 meeting).

Existing plans do not address future harm from F-35s, which led the Common Council to vote down a rezoning proposal at Raemisch Farm on August 3, as discussed below. The most recent neighborhood plan for the area around Raemisch Farm was drafted in 2009, long before the F-35s were planned to come to Madison. The Common Council’s decision in August threw into question whether any new proposed zoning change and proposed development within the 65 dB line would or should be allowed to move forward.

Another site within the 65 dB contour is being considered for affordable housing development on East Washington at Fair Oaks (at the former Bimbo Bakery site). Developers told the EJ Work Group at the October 18 meeting that the decisions of this committee would determine whether they are able to develop the site they are under contract to purchase.

Attorney Smith again detailed the potential issues with a long-term zoning change to limit housing development in the area at the August 30 meeting, particularly regarding the impact of rezoning on existing residents. If an overlay says no new residential development is allowed within the 65 dB contour, it would mean that everyone who currently lives within the contour would be living in a “nonconforming use,” which would still allow any building’s current uses to continue in the short term, but as properties age, they would not be able to be rebuilt. And if a home was unoccupied for a year, it would no longer be allowed to be occupied and used as a residential dwelling—a homeowner could effectively lose the right of occupancy, as well as their property’s value. A homeowner with a home that was occupied as a nonconforming residential use might also have challenges with insurance and lending options. “The law is trying to eventually eliminate the nonconforming uses,” Smith said.

In an interview, District 15 Alder and EJ Work Group chair Grant Foster cited concerns about a potential overlay zone. “So we could get a checkerboard of empty parcels,” he said. “We don’t want to create a bunch of nonconforming uses—it could be bad. It could be even worse for the neighborhood and the people who stay than the impact the planes could have alone. The neighborhood could start to atrophy.” So if you create an overlay to halt new development, “you’ve just made it worse for people who are staying.” And because legally neighbors have to be treated equally, the City can’t “spot zone,” or pick and choose sites for an overlay zone that are not yet developed. They would have to create an overlay zone that matched a logic—such as the 65 dB contour line—and apply it equally whether a building was already occupied as residential or not.

At the October 18 meeting Foster said, “I have had a number of conversations with District 15 constituents that are in this 65 dB area and have asked them specifically their perspective on this and […] the overall message that I’m hearing from them is that they’re not moving […] it’s their neighborhood, and they’re not planning on leaving there and they’re still interested in it being a great and even better neighborhood. So from those conversations it really became clear to me that we really have to be extremely thoughtful about those people who are already living there.”

It was clear by the Nov. 8 meeting that the EJ Work Group no longer thought restricting development in the flight path was worth pursuing.

The EJ Work Group is set to continue exploring mitigation strategies for F-35 noise, including possibilities such as: requiring sound mitigation measures for all properties in the flight path receiving funds from the City, incentives to support sound mitigation for large developments, tax increment financing district or TID to support the financing of sound mitigation measures in new residential developments in the area, and, if it is legally possible within state law, requiring certain sound proofing standards for construction in the flight path in the city building code or building form requirements within the 65 dB contour.

The challenge with implementing any requirements for soundproofing in City building codes is preemption in state law that says that no municipality may require building codes to be more stringent than the state law requires. The bird safe glass ordinance passed by the City of Madison in 2020 is already being challenged by Wisconsin Institute for Law and Liberty (WILL) in Wisconsin courts, and the result may impact the direction the City of Madison would take on requiring sound mitigation in the flight path. Another possibility may be for a carve-out within this state building code for areas around airports across the state, if legislators can be convinced to change the state law.

“We need to start demanding mitigation,” Foster told me. “I think of mitigation to include everything up to getting rid of F-35s. This can be an anti-F-35 stance too.”

The proposal for sound mitigation is not one that anti-F-35 activists have generally been in favor of. The Raemisch Farm development proposal is a case in point.

At the August 3 Common Council meeting, the Council voted to not rezone nor plat the agricultural land recently annexed by the City of Madison on the Northside, Raemisch Farm, due largely to concerns about F-35 flight noise. Many Madisonians appeared at the Common Council meeting or wrote their elected officials to argue against the development, including Safe Skies Wisconsin.

The Raemisch property is one of several potential development sites that either fall within, or intersect with, the 65dB line on the federal EIS for F-35 flight noise. This proposed development is the highest profile to date. The site and development plans have gone through several iterations in the last year, with an earlier version failing a rezoning attempt at Plan Commission in April. When Green Street St. Louis acquired the option to purchase from Marty Rifkin, the new developers began meeting with President Abbas, and concerned community groups such as the Raemisch Farm Work Group, to come up with a development proposal they believed would meet the concerns of the neighborhood. The final plan they presented to the City included offering some forest land to the school district to add to Lakeview Elementary’s school forest, creating smaller parcel sizes and greater density, and even delaying any housing construction within the 65 dB contour until 2027, when further information on the impact of F-35s might become available.

Michelle Ellinger Linley, one of the members of the Raemisch Farm Work Group, spoke with me about the development. She said, “There were so many things they did right and so many things that we fought and fought for that made that plat so workable and so good for the community. If it were not in a place where we would have these war machines coming it was as good as you could get out of working with a developer […] but should we responsibly be putting housing here? And at the end of the day, when it came time to come to Plan Commission, myself and another member of the [Raemisch Farm] Work Group split from the work group and talked as individuals and testified against it.” The rezoning for this development passed Plan Commission because there was nothing within existing plans, zoning, or building codes to prevent the rezoning for the construction of the development in the flight path. It then failed the vote at the Common Council due primarily to concerns over future F-35 noise.

“So Raemisch became the opportunity to do something about it right then, and go, no we need to pause, we need to look at this and that’s how it sort of ended up being […] what stopped [the] development until we know more information,” said Linley.

Now it seems the Council’s EJ Work Group no longer plans to consider stopping development within the 65 dB contour, instead exploring ideas for mitigation. District 6 Alder Brian Benford asked at the October 18 meeting in a discussion of mitigation strategies: “What about the fact that people go outside?”

“How do you soundproof a playground?” One participant asked in a recent hearing on F-35s in Vermont, describing the tragic sight of a group of children covering their ears. A September 7 public hearing from Winooski (just outside of Burlington, where the F-35s have been based for two years) involved disturbing accounts of the real impacts of F-35s on everyday residents. About 30 residents shared testimonies of “unbearable, excruciating sounds of war” that require bringing industrial ear muffs with them anytime they are outside. Some described the pain of watching distraught young children crying or waking up screaming, the observation of visitors thinking they were under attack, the real experience of PTSD activation, and the impossibility of working from home or even at school in the flight path. A doctor shared an eye-opening summary of long-term nervous system and psychological impacts from repeated loud noise. In a September article from VT Digger, one long-term resident living the experience many of us will soon said, “I endured the noise and disruptions that the F-16s caused in my life and paid attention when the F-35s were considered to be based here. I knew how much louder they would be. Nothing has prepared me for the stress I now suffer.” This was a theme throughout the testimonies—that the residents thought the F-16s were annoying, but they could not have predicted how intolerable the F-35s would be.

We simply will not know how it feels to live under these flights until they begin.

Of course, one argument that inevitably comes up is that people living in the flight path right now can move somewhere else, right? “Where do you move? Tell me in Madison where you get somewhere to live?” Linley asked. Linley herself just bought another house on the Northside. Much like the constituents Alder Foster has spoken to within the 65 dB contour, Linley said she chose a house there because “I fucking love the Northside…that’s my neighborhood, that’s my home […] But the difference between me and other people living in my [current] apartment [which is on the 65 dB line] is that I had the ability to buy a house or I had the ability to go live somewhere else [and] most of the people in my apartment building can’t move.”

The question of how to protect people currently living in the 65 dB zone as well as future inhabitants is still an open question. Watching this timeline unfold is like watching a slow motion train wreck. Within the limitations of state law, even demanding sound mitigation may prove challenging, much less restricting development in the flight path. Of course, there are still efforts to pressure the Feds to stop the jets from coming in the first place.

Now that the EJ Work Group seems unlikely to attempt to stop new development in the flight path, Green Street St. Louis (the potential developers at Raemisch Farm) as well as Wisconsin Housing Preservation Corp (the potential developers of the affordable housing at former Bimbo Bakery site) are expected to move forward with their respective rezoning proposals. Both developers plan to explore sound mitigation options as part of construction (see Wisconsin Housing Preservation Corp’s presentation on sound mitigation measures here). Green Street St. Louis already resubmitted the same proposal for Raemisch Farm, which is expected to come to Plan Commission on February 7 and Common Council February 22. Stay on the lookout for neighborhood meetings, Plan Commission, and Common Council discussions of the Bimbo Bakery site development (updates should appear on Abbas’s blog).