                                  STATE OF VERMONT
SUPERIOR COURT                                                 ENVIRONMENTAL DIVISION
Vermont Unit                                                     Docket No. 126-9-13 Vtec


Mt. Mansfield UHS Event Board Permit                     DECISION ON MOTION



                         Decision on Motion for Summary Judgment
       On May 30, 2013, the Town of Jericho Zoning Administrator (ZA) issued permit #BT211x
to the Mount Mansfield Union High School (MMUHS) allowing MMUHS to replace an existing
message board with a LED (light emitting diode) event board sign. The ZA concluded that under
24 V.S.A. § 4413 and the provisions in the Jericho Land Use and Development Regulations (the
Regulations) incorporating § 4413, the Town of Jericho (the Town) had no authority to regulate
the sign. Richard Kemmer (Appellant), who owns and occupies property across the street from
the proposed sign, appealed that decision to the Town of Jericho Development Review Board
(DRB). The DRB agreed with the determination of the ZA and upheld the permit on the grounds
that the application to replace the sign was exempt from the requirements of the Regulations
because of § 4413. Appellant appeals the DRB decision and moves for summary judgment that
as a matter of law the DRB erred in determining that the LED sign application was exempt from
municipal regulation. In his motion, Appellant asks the Court to remand the application to the
DRB. Appellant is self-represented in this appeal, the Town has designated Jennifer Murray, the
Town of Jericho Planning and Development Coordinator, as its representative, and MMUHS has
designated Michael Weston, MMUHS Principal, as its representative.
       The Court will grant summary judgment where the movant (here, Appellant) shows that
“there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” V.R.C.P. 56(a); V.R.E.C.P. 5(a)(2). The Court is directed to “accept as true the
[factual] allegations made in opposition to the motion for summary judgment,” as long as they
are supported by admissible evidentiary material, and to give the non-moving party (here, the
Town) the benefit of all reasonable doubts and inferences. Robertson v. Mylan Labs., Inc., 2004


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VT 15, ¶ 15, 176 Vt. 356; see V.R.C.P. 56(c). The issue before us is purely legal: whether the
Town of Jericho is without the authority to regulate an LED event board at MMUHS based on 24
V.S.A. § 4413.
       Title 24 Section 4413(a) provides that municipalities may regulate “State- or community-
owned and operated institutions and facilities” and “public and private schools and other
educational institutions certified by the state department of education” only with respect to
enumerated issues and “only to the extent that regulations do not have the effect of interfering
with the intended functional use.” Those enumerated regulable issues are: “location, size,
height, building bulk, yards, courts, setbacks, density of buildings, off-street parking, loading
facilities, traffic, noise, lighting, landscaping, and screening requirements.” 24 V.S.A. § 4413(a).
       Appellant contends in his motion for summary judgment that the replacement of a non-
illuminated event board with a LED message board must comply with any of the Regulations
related to lighting because, contrary to the DRB’s holding, the municipality does have authority
to regulate development at MMUHS with regard to lighting. We agree. Section 4413 does not
exempt development at a community-owned and operated facility or a public school from all
municipal regulation; rather, it limits the scope of that regulation to a list of enumerated topics.
Thus, the DRB must find that an application for development complies with those regulations
for which review is not limited by § 4413. Under § 4413, the Town can also regulate the size
and height of the sign, and any landscaping requirements related to the new sign. For these
reasons, we agree with Appellant that the DRB incorrectly found that the application should be
granted because it is exempt from all municipal regulation. We therefore GRANT Appellant’s
motion for summary judgment.
       Appellant asks that the Court remand the matter to the DRB to conduct the necessary
review. The DRB did not, in its written findings of fact and decision, make any findings relative
to whether the proposed sign complies with any of the Regulations. Rule 1 of the Vermont
Rules for Environmental Court Proceedings requires that our rules “be construed and
administered to ensure summary and expedited proceedings consistent with a full and fair
determination in every matter coming before the court.” The Court is thus concerned about
remanding this matter for further consideration by the DRB given the possibility that this appeal


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may come before the Court again after the DRB’s determination is made. Nonetheless, given
that the DRB did not consider the merits of the application and Appellant specifically requests
such consideration, we conclude that we must remand this matter to the DRB so that it can
decide the question of whether the application for the proposed LED event board sign complies
with any applicable regulations. We, therefore, REMAND this matter to the Town of Jericho
Development Review Board for consideration of whether the proposed replacement of the
current event board at MMUHS with a LED event board complies with any applicable municipal
regulations related to size, height, lighting, landscaping, or any other topic enumerated in
§ 4413.
       This concludes the pending appeal before the Court.


       Electronically signed on April 29, 2014 at 03:45 PM pursuant to V.R.E.F. 7(d).




_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division




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