                                 STATE OF VERMONT

                              ENVIRONMENTAL COURT

                                         }
In re: Appeal of                         }
        Cumberland Farms, Inc.           }       Docket No. 59-4-98 Vtec
                                         }
                                         }

Town of Richmond,                 }
     Plaintiff,                          }
                                         }
      v.                                 }       Docket No. 32-2-00 Vtec
                                         }
Cumberland Farms, Inc.,                  }
     Defendant.                          }

                                 DECISION and ORDER

      Appellant-Defendant, Cumberland Farms, Inc., appealed in Docket No. 59-4-98
Vtec from a decision of the Zoning Board of Adjustment (ZBA) of the Town of Richmond,
upholding the Zoning Administrator=s notice of violation. In Docket No. 32-2-00 Vtec, the
parties filed an enforcement complaint and answer under V.R.C.P. 8(g), and stipulated to
consolidate the two cases and to bring the issues before the Court by summary judgment
on an agreed schedule. Appellant-Defendant is represented by David A. Sunshine, Esq.;
the Town of Richmond is represented by F. Rendol Barlow, Esq.


      The Town=s motion for summary judgment and memorandum was filed; Appellant-
Defendant=s response was not filed. Accordingly, as Question 2 of Appellant=s September
21, 1998 statement of questions, relating to the location of the dumpster, was not
addressed in the motion for summary judgment it is hereby DISMISSED for lack of
prosecution. The remaining issues were raised in the motion for summary judgment and
will be addressed by this decision and order.


      Appellant-Defendant conducts a retail business which includes gasoline sales at its


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store located on a corner lot at the intersection of U.S. Route 2 and Bridge Street in
Richmond. The property is located in the Village Commercial zoning district. The Town=s
Zoning Regulations adopted in 1971 were amended generally effective November 5, 1996
and again effective August 2, 1999.
       The former gasoline service station at this location was constructed pursuant to a
conditional use approval and a variance from the rear setback requirements granted by the
ZBA in late 1983. The associated site plan shows a three-foot setback on the west and a
two-foot setback on the south. In June, 1985, Appellant-Defendant obtained conditional
use approval to convert the service station to a convenience store with gasoline sales, and
to erect a canopy. The 1985 approval required Appellant-Defendant to submit a new site
plan showing the three-foot setback on the west and the two-foot setback on the south,
and showing that the convenience store was to have a brick exterior on all sides.        In
October 1985, Appellant-Defendant received a building permit to erect a food/fuel
convenience store with brick exterior. Neither the ZBA approval nor the building permit
was appealed.
       Appellant-Defendant filed the required site plan in May of 1986. With respect to
signage it showed a freestanding double pole sign with a 4' x 6' sign area plus a 4' x 6'
price sign, and also showed a facade-mounted sign over the building=s main door
approximately 4' x 10' in size. It did not show any signage on or color scheme for the
proposed canopy. Considering the surface area on both sides of the pole-mounted sign
together with the facade-mounted sign, the signage totaled approximately 136 square feet
in area. The site plan showed the building facade to be brick, and showed a sloping visible
portion of the roof, about 4' 10" in height, as Ahand-split wood shakes.@ The site plan was
accepted as the approved site plan in connection with the 1985 ZBA approval. Thus, the
pole-mounted signs plus the 4' x 10' sign area centered over the front door of the building
mounted on the sloping roof were approved by the 1985 permit. Because that permit was
not appealed, that amount of signage is allowed although it exceeded that allowed under
the then-applicable regulations.
       As originally constructed by mid-1986, the building facade was brick. However, the
building roof was constructed as a flat roof with a visible dark-brown vertical edge

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approximately the same width as the visible canopy edge. The parties did not provide the
canopy width; it appears from the photographs to be approximately 22 feet in width, by
comparison with the known clearance of 122 feet under the canopy and by comparison
with the known 4-foot height of the ACumberland Farms@ portion of the free-standing sign.
An approximately 10' long ACumberland Farms@ sign was placed over the door of the
building within the roof edging.    The canopy over the gas pumps had a solid blue
background with white trim. Large white lettering stating ACF@ and ASelf Serve@ was placed
within the canopy edging on both the east and the west sides. No enforcement action
seems to have been taken at that time regarding the signage placed within the canopy
edging or the construction of the flat roof edge of canopy width rather than the wider
sloping roof edge with wood shakes.
       As of December 20, 1992, Appellant-Defendant had modified the entire roof edging
of the building and the entire edging of the canopy, without applying for or receiving zoning
approval to make the change. This change modified the canopy edging to its current blue,
orange, and white color configuration, changed the ACF@ lettering to the word AGulf,@ and
changed the building roof edging so that it was covered on at least the north, east and west
sides with the same blue, orange, and white color configuration as the canopy. Appellant-
Defendant uses this or a similar color combination at approximately 97% of its 1004 retail
locations.


Outdoor display of retail goods for sale
       Neither the motion for summary judgment nor its attached affidavits and documents
presents sufficient evidence for the Court to conclude that any specific violation has
occurred of the zoning requirements relating to the outdoor display of retail goods for sale.
However, the Court finds that Appellee-Defendant does not hold a permit authorizing the
outdoor display of retail goods for sale. Any outdoor display of retail goods for sale would
constitute a permit violation until or unless authorization for such outdoor display were
obtained through an amendment to the conditional use permit. Accordingly, the relief
requested in the motion, that Defendant-Appellant be ordered to locate all retail display
with the building, is DENIED as MOOT.

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Areas constituting signs for the purposes of calculating the signage area
       The 1971, 1996 and 1999 zoning regulations define Asign@ as
       any words, lettering, figures, numerals, phrases, sentences, devices,
       designs, pictures, symbols or trademarks by which anything is made known
       such as are used to designate a firm, an association, a corporation, a
       business, a service or a commodity or product, or any type of publicity
       whether placed on natural objects or on a building, fence or other manmade
       structure, which are visible from any public road.

       Based on this definition, the word AGulf@ on the canopy meets the definition of
Asign.@ The words ASelf Serve@ on the canopy meet the definition of Asign.@ The area
encompassed by those words does not appear to have received approval in the 1985
permit, and exceeds the area allowed by the 1971 regulations in effect when they were
installed. The fact that no enforcement action was sought when the words on the canopy
were ACF@ and ASelf Serve@ is not before the Court in the present case.
       Similarly, the words ACumberland Farms@ on the building roof edging meet the
definition of Asign.@ They appear to occupy a smaller surface area than that approved in
the 1985 permit, and therefore to fall within the approval in that permit.
       On the other hand, we do not find that the color scheme employed on the canopy
edge and building roof edge falls within the definition of sign. Although it is distinctive, it is
not restricted in any way to this corporation. That is, the paint scheme itself, without more,
is not a design, picture, symbol or trademark. As with any paint scheme or other facade
decoration, it may be regulated under the standards for site plan approval or conditional
use approval, but not as constituting a portion of the sign area. As such, we note that the
building roof edge was approved in the 1985 permit as a 4' 10" -wide area covered by
wood shakes, but that it was installed as a narrower flat roof edge with a vertical band, first
dark brown in appearance and now with the blue, orange and white striped surface. If that
color scheme and roof edge appearance is a violation of the 1985 approval, however, that
violation is not before the Court in either of the present cases.


       Based on the foregoing, it is hereby ORDERED and ADJUDGED that the Town=s


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motion for summary judgment is GRANTED in PART as follows. The areas on the canopy
marked with the word AGulf@ constitute signs under all applicable bylaws, and were installed
without required permits and approvals in violation of the applicable zoning bylaws. Those
signs shall be removed until or unless Defendant-Appellant applies for and receives an
amendment to the conditional use permit allowing such signs. Except that Appellant-
Defendant may instead cover those areas of the canopy with an opaque cover while such
application is pending before the ZBA. The motion for summary judgment is otherwise
DENIED, in particular in that the color scheme alone does not constitute a sign.
       This Order concludes Docket No. 59-4-98 Vtec. There is no just reason for delay in
the entry of judgment in Docket No. 59-4-98 Vtec; therefore final judgment is hereby
entered under V.R.C.P. 54(b) with respect to all issues in Docket No. 59-4-98 Vtec.
       The Town also sought certain monetary relief in its enforcement case, Docket No.
32-2-00 Vtec: a penalty award of $100 per day, and attorney=s fees. Because only a minor
portion of the signage was found to be noncomplying, because no enforcement had been
sought of that signage when it was first installed on the canopy until the color scheme
change was installed, because the Town did not supply the notice of violation for the Court
to determine the compliance date ordered in that notice, and because no party supplied the
date at which the available penalty amount changed from $50 per day to $100 per day in
the state statute, the Court cannot rule on the remaining relief requested in the
enforcement case at this time. Accordingly, on or before October 16, 2000, the parties
may file memoranda addressing the monetary requests for relief requested in the
enforcement case or stating whether an evidentiary hearing is necessary as to those
requests for relief. They may file responsive memoranda on or before October 30, 2000;
the Court will hold a telephone conference on November 3, 2000.

       Dated at Barre, Vermont, this 2nd day of October, 2000.




                                                        ____________________________
                                                        Merideth Wright


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    Environmental Judge




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