                                    STATE OF VERMONT

                                 ENVIRONMENTAL COURT

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Appeal of TCSC, LLC                               }           Docket No. 177-10-04 Vtec
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               Decision and Order on Cross-Motions for Summary Judgment
       Appellant TCSC, LLC appeals from the decision of the Town of Williston Development
Review Board (DRB) that upheld an alleged notice of violation issued on June 21, 2004 by the
Town’s Zoning Administrator for Appellant’s property at 11 Taft Corners Shopping Center. The
formal notice of violation charges that “a series of new lighting fixtures have been installed
under the canopy along frontage of the Taft Corners Shopping Center without [DRB] approval.”
Appellant is represented by Eric M. Knudsen, Esq.; the Town is represented by Paul S. Gillies,
Esq.
        Both parties have filed motions for summary judgment on all the issues raised by
Appellant’s Statement of Questions, stated in their entirety below:
       (a) Did the replacement of lighting fixtures of a different design under the canopy of the
       Taft Corners Shopping Center constitute “development” under the Zoning Ordinance
       (Ordinance);
       (b) Did the replacement of lighting fixtures of a different design under the canopy of the
       Taft Corners Shopping Center require DRB approval under the conditions of the permit
       for the “Ninety-Nine Restaurant and Pub”; and
       (c) Did lighting fixture replacement of a different design without a permit violate the
       Ordinance?
All of these questions are addressed in this Decision.
                                      Factual Background
       The following material facts are undisputed unless otherwise noted:
       1.      Appellant is the owner of a shopping center, known as Taft Corners Shopping
Center, at the intersection of U.S. Routes 2 & Vermont Route 2A that provides a mix of retail,
service, and restaurant uses, including the “Ninety-Nine Restaurant and Pub” (Ninety-Nine),
which is the portion of the property at issue in this appeal. The Taft Corners Shopping Center is
in the Taft Corners zoning district, Ordinance § 2.3.8, and is subject to design review pursuant to
Ordinance § 4.21.
       2.        A roof canopy covers the walkway in front of all leased premises in the shopping
center, including the Ninety-Nine. Appellant’s Statement of Undisputed Facts, Ex. A, E.
        3.       The Ninety-Nine facade and walkway are lit by overhead pendant light fixtures
that hang from underneath the roof canopy. These light fixtures were originally Trimblehouse
175-watt metal halide fixtures, that resemble a white sphere hanging from a wire. Those fixtures
were installed in 1985. Appellant maintains that these fixtures had deteriorated to the point that
they were falling from the canopy onto the walkway, thus posing a risk of injury to Appellant’s
and the Ninety-Nine’s patrons. See Appellant’s Statement of Undisputed Facts, at 1; Judge
Affidavit ¶ 6.
       4.        Sometime in December of 2003, Appellant replaced the Trimblehouse fixtures
with 70-watt metal halide pendant fixtures manufactured by Abolite, which have a cylindrical
bulb, the top half of which is covered by a bell-shaped shield. Appellant’s Statement of
Undisputed Facts, Ex. B, C, D.
        5.       The lighting fixtures (both old and new) cannot be seen from outside of the
shopping center; they are only visible from beneath the roof canopy. The Court understands that
the illumination from the fixtures (both old and new) can be seen at night from outside of the
roof canopy.
        6.       On July 22, 2003, the DRB issued a zoning permit approving the conversion of
Appellant’s property for lease as a Ninety-Nine restaurant. The DRB determined that while no
site plan was needed, the Design Advisory Committee had to review the proposed changes
pursuant to § 4.21 of the Zoning Ordinance because the property was in the Taft Corners Design
Review Overlay zoning district (Taft Corners District).
       7.        In accordance with the Committee’s recommendations, the DRB included a
condition in its zoning permit approval that stated, “3.) No new lighting fixtures are to be
installed over the awnings under the canopy without prior approval by the Town. The existing
fixtures may be repaired or replaced with identical fixtures.” A subsequent condition stated, “6.)
No substantial or material changes shall be made in the project without the prior issuance of a
permit amendment from the [DRB]. The Zoning Administrator may approve in writing minor,
insubstantial changes to the project.” See Attach. to the Town’s Cross Mot. for Summ. J., Ex. A,
at 17.
         8.     The zoning permit for the Ninety-Nine, issued on August 13, 2003, did not list the
DRB’s conditions of approval from its July 22, 2003 meeting; however, the permit does state
that, “The applicant is responsible for meeting all conditions in this permit and in the DRB
approval dated 7/22/03.” See Attach. to Appellant’s Resp. to the Town of Williston’s Mot for
Summ. J., Ex. B, at 2. The application for the zoning/building permit was hand-written and lists
the “Applicant/Lessee” as “Ninety-Nine Restaurant + Pub,” while Appellant is listed as the
“Owner.” Id. at 1.
         9.     On June 21, 2004, the Zoning Administrator mailed a “formal notice of a zoning
violation” letter to Appellant for “[u]npermitted outdoor lighting,” citing Ordinance § 4.16.2.
See (Letter from Scott Gustin to Peter Judge of 6/21/04, at 1).
         10.    Ordinance § 4.16.2(A) states: “No outdoor lighting fixtures may be installed in
the . . . TC [Taft Corners] . . . District[] without first obtaining approval from the [DRB].”
Ordinance § 4.16.2.
         11.    A requirement of the Taft Corners District―Section 4.21.3(A)(6)(a)―states that
“Outdoor lighting should comply with the standards set forth in Sub-Section 4.16 of the
[Ordinance],” which requires DRB approval for outdoor lighting.
         12.    Lastly, because only a zoning permit was required for the Ninety-Nine when it
was approved by the DRB, Ordinance § 4.21.8 requires any design review recommendations to
be incorporated “into the conditions of approval for the zoning permit.”
                                             Discussion
         In this appeal from a formal notice of violation, Appellant alleges that DRB approval is
unnecessary to replace the lighting fixtures under the roof canopy because the replacement is a
“normal redecoration, maintenance or repair[],” which is excluded from the definition of
“development,” for which a permit is required. Ordinance § 6.2.23. The Ordinance provides
that “No land development may be commenced . . . without a zoning permit being issued by the
Zoning Administrator.” Ordinance § 5.3.1.
         If the Ordinance were devoid of requirements for outdoor lighting in the Taft Corners
District, then Appellant’s argument may have merit. However, because the Ordinance contains
provisions specifically applicable to the installation of outdoor lighting in that District, we do not
need to address whether the replacement of outdoor lighting constitutes “development” or
“normal redecoration, maintenance, or repair.” “Zoning ordinances are construed according to
the general principals of statutory construction,” In re Weeks, 167 Vt. 551, 554 (1998). Our
Supreme Court has directed that when “construing conflicting statutes that deal with the same
subject matter, the more specific provision controls over the more general one,” Stevenson v.
Capital Fire Mut. Aid Sys., 163 Vt. 623, 625 (1995) (citing State v. Jarvis, 146 Vt. 636, 638
(1986)). We therefore find that a permit is required under § 4.16.2 when new and not “identical”
outdoor lighting fixtures are installed under the roof canopy of Appellant’s shopping center in
front of the Ninety-Nine.
          Furthermore, this appeal does not involve uncertainty in construing the zoning ordinance,
so there is no need to advance the construction of the regulations urged by the landowner. The
regulations are clear that § 4.16.2 requires DRB approval for the installation of outdoor lighting
fixtures in the Taft Corners District.
          In addition to the approval required by § 4.16.2, the Ordinance’s provisions relating to
the Taft Corners District also require any outdoor lighting to comply with § 4.16, including DRB
approval of outdoor lighting fixtures. Thus, because we apply the more specific provision of the
Ordinance relating to outdoor lighting over the broader provision relating to “development”
generally, we find that Appellant violated the Ordinance by not first obtaining DRB approval to
install new outdoor lighting fixtures in front of the Ninety-Nine.
          Appellant, the property’s owner, also argues that the requirements of the Ninety-Nine’s
building/zoning permit and its conditions of approval are inapplicable, as they only apply to the
permit’s “Applicant,” who is listed as “Ninety Nine Restaurant + Pub.” See Attach. to
Appellant’s Resp. to the Town of Williston’s Mot for Summ. J., Ex. B, at 1. Appellant relies on
a single sentence in the last paragraph of the permit to argue that the DRB’s conditions of
approval do not apply to the landowner. The permit states, “The applicant is responsible for
meeting all conditions in this permit and in the DRB approval dated 7/22/03.” Id. at 2 (emphasis
added).
          “In construing permit conditions, we rely upon the normal rules of statutory
construction.” Agency of Natural Res. v. Weston, 2003 VT 58, ¶ 16 (citing Sec’y, Vt. Agency of
Natural Res. v. Handy Family Enters., 163 Vt. 476, 481 (1995)). “Ordinarily, we do so by
accepting the plain meaning of the words because we presume that they express the underlying
intent.” Id.
       First and foremost, the zoning permit issued for the Ninety-Nine (#BP-04-56) states,
“The undersigned applies for permission to make certain building and/or site improvements as
described below.” The permit application is signed by Peter Judge, the President of Judge
Development Corp., which is a member of Appellant limited liability company. The permit
application is not signed by a representative of the “Lessee,” Ninety-Nine. See Attach. to
Appellant’s Resp. to the Town of Williston’s Mot. for Summ. J., Ex. B, at 1; Judge Aff. at ¶ 1,
2. Although Appellant is listed as “Owner” on the permit, its agent―Mr. Judge―filled out and
submitted the permit application. Therefore, Appellant must also be considered an applicant for
the zoning permit. Furthermore, the DRB treated Appellant as the applicant, as evidenced by the
DRB’s uncontested and unappealed decision on July 22, 2003, which states that the application
was filed “by TCSC and 99 Restaurant & Pub to renovate a portion of the exiting [sic] TCSC
shopping center . . . .” See Attach. to the Town’s Cross-Mot. for Summ. J., at 16 (July 22, 2003).
       Appellant was therefore an applicant in this proceeding and is bound by the DRB’s
conditions, issued on July 22, 2003. One such condition requires that “[n]o new lighting
fixtures . . . be installed over the awnings under the canopy without prior approval by the
Town.” Id. at 17, ¶ 3. Appellant could have repaired or replaced the Trimblehouse fixtures with
identical fixtures without approval from the DRB. However, Appellant’s choice to install new,
non-identical fixtures necessitated prior review by the DRB, which the Applicant did not seek or
obtain. Therefore, the formal notice of violation was proper.
       Accordingly, based on the foregoing, it is hereby ordered and adjudged that Appellant’s
motion for summary judgment is DENIED, and the Town’s motion for summary judgment is
GRANTED, concluding this appeal.

               Done at Berlin, Vermont, this 1st day of July, 2005




                                             Thomas S. Durkin, Environmental Judge
