ANR v. Handy Family Enterprises

Annotate this Case

ANR_V_HANDY_FAMILY_ENTERPRISES.93-367; 163 Vt 476; 660 A.2d 309

[Filed 14-Apr-1995]

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.

No. 93-367

Secretary, Vermont Agency Supreme Court
of Natural Resources
On Appeal from
v. Environmental Law Division

Handy Family Enterprises and November Term, 1994
Taft Corners Associates, Inc.

Merideth Wright, J.

Christine Melicharek, Waterbury, for plaintiff-appellant

Carl H. Lisman of Lisman & Lisman, P.C., Burlington, for defendant-appellee,
Handy Family Enterprises

Robert F. O'Neill of Gravel and Shea, Burlington, for defendant-appellee Taft
Corners Assocs.

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

DOOLEY, J. The Secretary of the Agency of Natural Resources
(Secretary) appeals a decision of the Environmental Law Division (ELD)
assessing penalties against Handy Family Enterprises (HFE) and Taft Corners
Associates, Inc. (TCA) for violations of their Act 250 Land Use Permits. The
Secretary challenges the ELD's calculation of penalties, its conclusion that
the permit violations caused only slight environmental harm, and its finding
that the violations did not predate May 17, 1991. HFE cross-appeals,
claiming that the ELD incorrectly imposed penalties for HFE's use of
temporary banners and its failure to remove light fixtures prohibited by the
permits. HFE also claims the penalty amount is unsupported by the record.
TCA, also a cross-appellant, challenges the ELD's calculation and imposition
of penalties against TCA and HFE jointly, as though they were a single
entity, rather than considering TCA separately. We

reverse the ELD's determination imposing penalties for the placement of
banners prior to October 8, 1991, reverse and remand the calculation of
remaining penalties, and affirm the conclusion that the violations caused
only slight environmental harm.

TCA owns a thirty-seven lot industrial park located in Williston. HFE
is under affiliated ownership with Seven Maples Corporation, which owns and
operates the Ponderosa Restaurant on Lot 30 of the TCA industrial park.
Under the operating arrangement between HFE and Seven Maples, permits for Lot
30 are in the name of HFE. On April 27, 1990, HFE and TCA applied for an Act
250 land use permit, 10 V.S.A. 6081, to allow the construction and
operation of the restaurant. Included in the permit application was a plan
to install signs for the restaurant. In August 1990, the District 4
Commission issued HFE and TCA Land Use Permit 4C0696-9 (the 9 permit)
approving the construction and operation of the restaurant, but it did not
approve the parties' proposal for four internally illuminated signs
previously sanctioned by the Williston Planning Commission. Condition 23 of
the 9 permit required the applicants to obtain written approval from the
District 4 Commission for an alternative sign plan prior to the installation
of any exterior signs. The parties did not appeal the 9 permit.

HFE and TCA thereafter discussed the restaurant signs with the Williston
Planning Commission. The Planning Commission wrote the District 4
Commission, stating that it favored internally illuminated signs over other
types of signs. On December 27, 1990, HFE and TCA applied to the District
Commission for a permit amendment to allow four internally illuminated signs.

On February 4, 1991, the District 4 Commission issued an amended permit
(the 9A permit) approving two internally illuminated awning signs and a
freestanding parking lot directional sign. Condition 7 of the 9A permit
stated "the installation of signs are limited to those approved," and
condition 8 stated "any other signage or change to the signage herein
approved is strictly prohibited" without prior written approval from the
District 4 Commission.

HFE placed two banners (banners 1 and 2) on the restaurant's exterior on
February 27, 1991. Both banners were two feet by ten feet in size, and read
"Ponderosa Steak House Now Open." Banner 1 remained on the restaurant for
eleven months.

HFE placed two additional banners (banners 3 and 4) on the building on
May 1, 1991. Banner 3 was two feet by twenty feet, with lettering stating
"Sirloin Tips Special $5.99" and "U.S.D.A. Choice." Banner 3 was displayed
on the building on May 15 and 20, June 17 and July 5, 1991. Banner 4, which
remained on the building for twenty days, was two feet by thirty feet, and
advertised "3 Super Sandwich Specials $3.99, includes fries and beverage -
lunch only."

On May 15, 1991, the District Coordinator informed HFE and TCA that the
Commission believed the banners violated the 9A permit. HFE and TCA
immediately requested written approval from the Commission for the banners.
The Commission denied the request on May 16, informing HFE and TCA that they
should submit their request in the form of a permit amendment application.
Neither HFE nor TCA submitted an amendment application.

On May 20, 1991, the District Coordinator issued a Notice of Alleged
Violation to HFE and TCA. The notice stated that the restaurant's banners
violated both the 9 and the 9A permits. Nevertheless, HFE installed banner 5
on May 25, 1991. Banner 5 was similar in size to banner 3 and stated, "New
Charbroiled Chicken Dinners $6.99." Banner 5 remained on the building for
approximately forty days.

In July 1991, HFE and TCA filed a permit amendment application
requesting approval for an internally illuminated, building-mounted sign. On
October 8, 1991, the District 4 Commission issued a permit approving the
installation of an internally illuminated, building- mounted sign (the 9B
permit), and requiring HFE to remove interior light fixtures that hung above
the dining tables immediately adjacent to the first-floor windows. This
permit prohibited the installation of any "temporary signs, banners, posters,
or flags . . . without the prior written

approval of the District Commission"; HFE did not remove the banners,
however, nor did TCA take any action to have the banners removed, following
the issuance of the 9B permit.

On December 10, 1991, the installation of the internally illuminated,
building-mounted sign was completed. On February 24, 1992, HFE placed banner
6 on the exterior of the building. Banner 6 was similar in size and location
to banner 5 and stated, "New! New York Strip, Porterhouse, Filet Mignon -- So
good they're guaranteed!" Banner 6 remained on the building until March 3,
1992.

In March 1992, the Secretary issued an administrative order pursuant to
10 V.S.A. 8008, requiring the parties to remove all signs not allowed by
the 9A permit and assessing a penalty of $25,000. HFE and TCA requested a
hearing before the ELD, as authorized by 10 V.S.A. 8012(a).

Following a hearing, the ELD issued findings, conclusions and an order
on June 13, 1993. In considering the banners, it decided to look at three
separate periods. During the last period, between the time the 9B permit was
issued (October 9, 1991) and the time the last banner was removed (March 3,
1992), the ELD concluded there was a clear violation of condition 8 of the 9B
permit. As to the second period, from the date the District Commission
denied permission to put up the banners (May 17, 1991) to the date of
issuance of the 9B permit (October 9, 1991), the ELD concluded HFE and TCA
violated the permit conditions because they kept the banners up knowing of
the District Commission's permit interpretation. As to the first period,
from the date the first banner was placed on the building (February 27, 1991)
to the date of the District Commission denial of permission to put up the
banners (May 17, 1991), the ELD found no permit condition violation because
the permits "did not specifically address temporary banners" and other
businesses covered by TCA's umbrella permit were using "temporary banners and
flags without apparent challenge." The ELD imposed penalties against HFE and
TCA, jointly and severally, for the second and third periods, as well as for
failure to

remove the interior light fixtures as required by the 9B permit, in the
amount of $14,463. This appeal followed.

All parties contest the ELD's decision to treat the first and second
periods differently. The Secretary argues that notification by the District
Coordinator does not trigger a violation of the permit and that, if there was
a violation during the second period, there also had to be a violation during
the first period. HFE and TCA agree with the first part of the Secretary's
argument but claim that if there was no violation for the first period, there
could not have been one for the second period.

Before we address the specific arguments, we must first consider the
principles controlling our construction of permit conditions and the standard
of review. We see no reason to depart from normal statutory construction
techniques in interpreting permit conditions. We strive to implement the
intent of the draftspersons. See Conn v. Middlebury Union High School, ___
Vt. ___, ___ 648 A.2d 1385, 1387 (1994). Ordinarily, we rely on the plain
meaning of words because we presume they show the underlying intent. See id.

Some principles are specifically related to the task before us. We have
held with respect to Act 250 that "in construing land use regulations any
uncertainty must be decided in favor of the property owner." In re Vitale,
151 Vt. 580, 584, 563 A.2d 613, 616 (1989); see also Committee to Save the
Bishop's House, Inc. v. Medical Center Hosp. of Vt., 137 Vt. 142, 152, 400 A.2d 1015, 1020 (1979). These holdings are based on our zoning decisions
that have emphasized that ambiguity must be resolved for the property owner.
See Murphy Motor Sales, Inc. v. First Nat'l Bank, 122 Vt. 121, 123-24, 165 A.2d 341, 342-43 (1960). We have also held that zoning permit conditions
"must be expressed with sufficient clarity to give notice of the limitations
on the use of the land." In re Farrell & Desautels, Inc., 135 Vt. 614, 617,
383 A.2d 619, 621 (1978); see also In re Kostenblatt, 161 Vt. 292, 299, 640 A.2d 39, 44 (1994)

(reaffirming In re Farrell & Desautels, Inc.); In re Robinson, 156 Vt. 199,
202, 591 A.2d 61, 62 (1991) (conditions valid if "unqualified and definite").
This limitation should apply to Act 250 conditions. See 10 V.S.A.
6086(c) (Act 250 permit may contain conditions "within the proper exercise of
the police power").

These limitations on our interpretation of Act 250 and permit
requirements are particularly important in a proceeding that seeks to
penalize the landowner for a violation. See Ciaffone v. Community Shopping
Corp., 77 S.E.2d 817, 821 (Va. 1953) (a stricter construction of zoning
ordinance is required in the case of prosecutions to enforce penal provisions
of the ordinance). We should be particularly careful that the conduct found
by the ELD falls within the clear prohibition of a permit condition before
requiring the landowner to pay a large monetary penalty intended, in part, to
deter such violations in the future.

We also must accord some deference to the conclusion of the ELD that a
permit condition is vague. Such conclusions necessarily involve mixed
questions of fact and law. See Vitale, 151 Vt. at 583, 563 A.2d at 615
(meaning of word "control" in Environmental Board rule is question of fact
for Board). The division was created to place all environmental enforcement
actions, and the appeal of certain environmental orders, before one judge.
See 4 V.S.A. 1001(b) (creating one environmental judge). Part of the
purpose was to "provide for more even-handed enforcement of environmental
laws." 10 V.S.A. 8001(3). The Legislature expected that the
environmental judge would develop expertise in environmental enforcement and
ensure consistent interpretations of the law. She was using that expertise
in this case.

A consultation of popular dictionaries points out the ambiguity in the
word "sign." The Random House Unabridged Dictionary (2d ed. 1993) at p. 1778
has the broadest relevant definition of the word: "a notice, bearing a name,
direction, warnings or advertisement, that is displayed or posted for public
view." On the other hand, the American Heritage Dictionary of the English
Language (3d ed. 1992), at p. 1678 has a much narrower definition: "A
displayed structure bearing lettering or symbols, used to identify or
advertise a place of business."

Definitions in other dictionaries fall in between. See Webster's College
Dictionary 1245 (Random House ed. 1991) ("an inscribed board, placard or the
like bearing an ... advertisement ... and displayed for public view"). The
banners involved here appear to be signs for purposes of the Random House
Unabridged Dictionary but not for purposes of the American Heritage
Dictionary, because they lack a structure.

The American Heritage Dictionary use of the word "structure" goes
exactly to the ambiguity. The word "sign" commonly refers not only to the
message (advertisement) but also to the medium and connotes something more
substantial and permanent than a banner. On this point, we should view the
word in the context used in the permits. See Veterans of Foreign Wars v.
Steamboat Springs, 575 P.2d 835, 839 (Colo. 1978) (construe meaning of sign
to exclude free-standing picketing signs in light of requirement that the
sign be "situated" on the premises). The permits refer to the "installation"
of a sign. This word would not be used to describe the act of hanging or
tieing a banner. It connotes that the sign is a "structure" as one
dictionary defined it.

The Secretary argues from two other sources of law in support of her
interpretation of the word "sign" as including the temporary banners hung on
the restaurant by HFE. She points to case law, but a close reading of the
appellate decisions she cites do not support her position.(FN1)

The second source of a definition is the Vermont statute regulating
outdoor advertising, which provided at the time of this dispute:

481. Definitions

As used in this chapter, the following terms are defined as
follows:

. . . .
(6) A "sign" is any structure, display, device or representation
which is designed or used to advertise or call attention to any
thing, person, business, activity or place and is visible from any
highway or other right-of-way. It does not include the flag,
pennant, or insignia of any nation, state or town.

10 V.S.A. 481.(FN2) The Secretary argues that the banners should be held
to be signs using this definition because they were used to call attention to
a business and were visible from a highway. The definition is specifically
limited to Chapter 21 of Title 10, which does not include Act 250. The
secretary's argument reveals the problems connected with borrowing
definitions from inapplicable statutes. The definition is tailored to the
regulatory purpose involved and is more limited than any "plain meaning" or
dictionary definition. The Secretary argues here that HFE's banners should
be called signs because they were visible from the roadway, but is free in
another case to argue that visibility from a roadway is not an element of a
definition of a sign. Facing the risk of the imposition of a major penalty,
the permit-holder cannot know what definition will ultimately be adopted.

The Secretary's reliance on the Chapter 21 definition of "sign" shows
how easy it is for the District Commission to provide an adequate definition
of sign by referring to the statutory language. It could also have
referenced a specific dictionary to resolve questions of interpretation. See
Route 4 Assocs. v. Town of Sherburne Planning Comm., 154 Vt. 461, 462, 578 A.2d 112, 113 (1990).

We conclude that the ELD's finding that conditions of the 9 and 9A
permits did not prohibit temporary banners, in sufficiently specific terms,
is supported by the record. Thus, the

ELD was required to resolve the ambiguity in favor of HFE and TCA, and we
affirm its decision doing so initially.

We cannot, however, affirm the ELD conclusion that a violation of permit
conditions occurred on May 17, 1991 when the District Commission refused to
approve hanging of banners after the District Coordinator ruled that the
permit conditions applied to the banners. The ELD has authority to
"determine whether a violation has occurred." 10 V.S.A. 8012(b)(1).
However, a violation is defined as "noncompliance with one or more of the
statutes specified in section 8003 of this title, or any related rules,
permits, assurances, or orders." 10 V.S.A. 8002(9). Nothing in the
language covers legal opinions of the District Coordinator or a Notice of
Alleged Violation of the Commission, which in turn are valid only when
supported by the statute or permit language. It was improper to assess any
penalty for the second period, up until the 9B permit was issued with its
specific language.

II.

The parties appeal several conclusions made by the ELD regarding the
calculation of penalties. These issues relate to penalties for the third
period, as well as those for the second period, and thus remain live.

This Court will set aside the conclusions of the ELD only if they are
not supported by the factual findings. See Cameron v. Double A. Services,
Inc., 156 Vt. 577, 581, 595 A.2d 259, 261-62 (1991). The ELD is authorized
"to review and determine anew the amount of [any] penalty." 10 V.S.A.
8012(b)(4). In so doing, it must consider eight factors, id. 8010(b), but
it is not required to impose separate penalty amounts under each one. See
Vermont Agency of Natural Resources v. Duranleau, 159 Vt. 233, 239, 617 A.2d 143, 147 (1992).

The Secretary argues that the ELD's conclusion that the banners caused
only a slight impact on the public health, safety, and welfare is unsupported
by the findings, and that its findings on the aesthetic effect of the banners
are clearly erroneous. See 10 V.S.A. 8010(b)(1) (degree of actual or
potential impact on public health, safety, welfare and environment resulting

from violation shall be considered in determining penalty amount). The ELD
found that the banners were visible from Routes 2 and 2A, and marginally
visible from Interstate 89. The ELD also found that other area businesses
had been using temporary banners during the time HFE's banners were
displayed. Considering the appearance of the surrounding buildings and
signs, the ELD determined that HFE's banners posed a negligible additional
adverse aesthetic effect on the area. These findings are adequately
supported by the evidence and are not clearly erroneous. The conclusion that
the banners slightly impacted the public health, safety and welfare is
supported in turn by the findings. The ELD's decision not to consider
environmental impact in calculating the penalty is therefore sustainable.

Next, both the Secretary and HFE challenge the ELD's penalty
calculation. In assessing the penalty, the ELD focused on the economic
benefit of the violation to HFE and TCA, id. 8010(b)(5), the deterrent
effect of the penalty, id. 8010(b)(6), and the presence of mitigating
factors, id. 8010(b)(2). The Secretary claims that the penalty was too
small; HFE argues that there was no evidence of economic gain. Both parties
contend that the penalty was arbitrary and without support in the record. We
agree.

The ELD considered deterring future violations the primary reason for
imposing the penalty. In calculating the penalty for unauthorized use of the
banners, the ELD used percentages of the restaurant's gross receipts. The
penalty for the banner violation was calculated for the period from October
9, 1991 through March 3, 1992 at 2 1/2% of the gross receipts. None of the
findings support the use of this percentage, however, or demonstrate how the
restaurant's gross receipts benefitted from the use of the banners. Cf.
Agency of Natural Resources v. Godnick, ___ Vt. ___, ___, 652 A.2d 988, 994
(1994) (evidence showed that respondent's use of warehouse in violation of
Act 250 conferred benefit of rental income and use of monies that should have
been spent on complying with permit requirements). Because

of the inadequate justification for the penalty imposed, we remand to the ELD
for further consideration.

HFE also argues that the ELD had no basis under any of the eight factors
to impose a penalty for HFE's failure to remove the interior light fixtures.
The ELD assessed a penalty of $10 per day of violation, rounded to $300 per
month for eleven months. In reaching this penalty amount, the ELD found that
although HFE obtained no economic benefit from the violation and there was no
evidence relating to the cost of removing the fixtures, HFE failed to explain
or justify its eleven-month delay in removing them. In light of the
deterrent purposes for which the ELD imposed the penalty, see 10 V.S.A.
8010(b)(6), we are unable to say that the $10-per-day assessment was
unreasonable. See id. 8010(c) (if violation is continuing, penalty of not
more than $10,000 per day may be assessed).

III.

TCA appeals the ELD's assessment of penalties for both HFE and TCA as
co-applicants without considering their individual circumstances. TCA argues
that when imposing the penalty, the ELD should have considered mitigating
circumstances unique to TCA, such as TCA's attempt to persuade HFE to comply
with the permits. The Secretary claims that to consider the co-applicants
individually would weaken the permit's enforceability.

Co-permittees under Act 250 do not always share equal responsibility for
permit violations. The 8010(b) factors may well be different for each
party, and that was indeed the case here, where economic benefits and
mitigating circumstances clearly differed, thus necessitating individual
treatment for each party. Further, 10 V.S.A 8002 defines "[r]espondent"
as "a person who has committed or is alleged to have committed a violation,"
id. 8002(b), and "[p]erson" as "any individual, partnership, company,
corporation . . . or any other legal or commercial entity," id. 8002(4).
Nothing in the statutes provides that co- applicants are to be treated as one
person.

TCA and HFE as co-permittees are both responsible for complying with the
permits and share fault for the violations. Nevertheless, by lumping them
together in calculating the penalties, the ELD put HFE and TCA in an
untenable position when it required them to allocate between themselves the
responsibility for payment. The determination of individual liability is the
responsibility of the ELD. See id. 8012(b)(4). Thus, the ELD must
analyze the circumstances of each party individually when assessing penalties
for permit violations.

The ELD's conclusion that the banners caused only slight environmental
harm is affirmed; its imposition of penalties for violation of conditions of
permits before October 9, 1991 is reversed; with respect to other violations,
its order assessing penalties is reversed, and the cause is remanded for
further proceedings not inconsistent with this opinion.

FOR THE COURT:

__________________________
Associate Justice

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Footnotes

FN1. She cited State v. Gargiulo, 246 A.2d 738, 741-42 (N.J. Super. Ct. App.
Div. 1968). The case does involve enforcement of sign restrictions against a
service station which was displaying a banner. However, the decision does
not contain the ordinance definition of "sign," probably because the owner
conceded the banner was a sign under the ordinance and the definition
question here was not before the court. See id. at 741.

She also cited Webb v. City of Raleigh, 363 S.E.2d 681, 682 (N.C. Ct.
App. 1988), but there is nothing in that very short decision that suggests
that the court decided that a banner was a sign.

FN2. Ironically, 481(6) was amended in 1994 to state specifically that it
included signs which are "temporary or permanent, portable or
ground-mounted." 1994, No. 121 (Adj. Sess.), 1. Apparently, the
legislature was concerned that something temporary would not be found to be a
sign under the earlier definition.

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Dissenting

No. 93-367

Secretary, Vermont Agency Supreme Court
of Natural Resources
On Appeal from
v. Environmental Law Division

Handy Family Enterprises and November Term, 1994
Taft Corners Associates, Inc.

Merideth Wright, J.

Christine Melicharek, Waterbury, for plaintiff-appellant

Carl H. Lisman of Lisman & Lisman, P.C., Burlington, for defendant-appellee,
Handy Family Enterprises

Robert F. O'Neill of Gravel and Shea, Burlington, for defendant-appellee Taft
Corners Assocs.

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

GIBSON, J. dissenting. I concur in Part II of the Court's opinion, but
I do not agree with Part I. Simply put, an advertising banner is a sign
within the meaning of the 9 and 9A permits, and Handy Family Enterprises
(HFE) violated the conditions of both permits when it installed the first
banner in February 1991. I therefore respectfully dissent.

I agree with the Court that we must accord some deference to an
Environmental Law Division (ELD) conclusion that a permit condition is vague.
The ELD in this case, however, made no such conclusion. Here, the ELD
concluded that Taft Corners Associates (TCA) and HFE had not violated their
permits prior to May 17, 1991, reasoning that the 9 and 9A permits did not
specifically address temporary banners and that some area businesses had been
using temporary banners without apparent challenge. It found, however, that,
by May 16, when the

District Commission denied the parties' request for approval of the banners,
the parties knew the District Commission interpreted the 9A permit to
prohibit the banners, and that banners placed or remaining on the building
thereafter constituted violations of the 9A permit. I do not believe that
these findings are tantamount to concluding that the 9 and 9A permits were
vague or ambiguous. If that were the case, the ELD would not have found a
violation of the 9A permit at all, regardless of the Notice of Alleged
Violation.

Moreover, in her discussion of mitigating factors relevant to the
penalty, the ELD stated that the terms of the 9 and 9A permits "may have
been" too unclear to put HFE and TCA on notice that the temporary advertising
banners were prohibited.(FN1) (Emphasis added.) The ELD's decision falls
far short of concluding that the 9 and 9A permits were ambiguous or vague.

The 9 and 9A permits obligated HFE and TCA to maintain their project
according to conditions contained in the permit. The 9 permit prohibited the
installation of "any exterior signs" without written approval. (Emphasis
added.) The 9A permit provided that "[t]he installation of exterior signs
[is] limited to those approved," specifically, an egress sign and two awning
signs, and required the parties to obtain written approval from the District
Environmental Commission if they wished to change any of the conditions
contained in the permit. The banners were not among the exterior signs
approved by the District 4 Commission in the 9A permit. The permit
emphasized its prohibition on additional signs in condition 8: "The
installation of any other signage or change to that signage approved herein
is strictly prohibited without the issuance of an amendment to this Land Use
Permit or without the prior written approval of the District IV Environmental
Commission." (Emphasis added.)

The 9 and 9A permits thus clearly stated that HFE and TCA needed written
approval from the District Commission should they desire to install exterior
signs different from those approved.

HFE argues that because the banners were temporary, they were not
proscribed until the 9B permit was issued. The majority goes even further
and finds that the word "sign" is ambiguous and connotes something with a
structure that must be installed.(FN2) I am unaware of the rule of
construction that permits a court to interpret a term based on the images the
term conjures up in the minds of the court's members. I would examine the
word "sign" according to the principle that words not specifically defined in
a statute are to be given their plain and commonly accepted meaning. Vincent
v. Vermont State Retirement Bd., 148 Vt. 531, 535-36, 536 A.2d 925, 928
(1987). "Sign" is commonly defined as "a lettered board or other display
used to identify or advertise a place of business." Webster's Ninth New
Collegiate Dictionary 1096 (1991) (emphasis added). The common thread
running through this definition and each of the definitions the majority
cites is the requirement that the sign "advertise," provide "notice" or
"identify" something. Under all the dictionary definitions in the majority
opinion, a "structure" is not a sign unless it contains a "notice, bearing a
name, direction, wording or advertisement," or bears letters or symbols "used
to identify or advertise a place of business," or bears an "advertisement"
and is "displayed for public view."

Further, I would view Act 250 in conjunction with the statutory scheme
that regulates outdoor advertising generally, adopted two years prior to Act
250, see 10 V.S.A. 481-506, because both acts serve the same purposes
and policies. Compare 10 V.S.A. 482 (legislative

findings recognizing great value of Vermont's scenic resources and
detrimental impact on those resources by outdoor advertising) and id. 483
(prohibiting indiscriminate use of outdoor advertising promotes public health
and welfare) with id., Chapter 151, Findings and Declaration of Intent
(declaring it necessary to control land use to insure that such use will not
be unduly detrimental to environment and will promote general welfare through
orderly growth and development) and id. 6086(a)(8) (before issuing land
use permit, district commission must find that proposed use will not
adversely affect area's scenic or natural beauty and aesthetics). Section
481(6), as it existed at the time of the events herein, defined "sign" as
"any structure, display, device or representation which is designed or used
to advertise or call attention to any . . . business . . . and is visible
from any highway."

In this case, the banners advertised that the building contained a
restaurant that was open for business. The banners also advertised lunch and
dinner specials, and were visible from Routes 2 and 2A. The banners,
therefore, plainly came within the common meaning of the term "sign."

The fact that HFE did not intend to affix the advertising banners
permanently to the restaurant does not alter the plain meaning of the word
"signs" in the 9 and 9A permits. The permit applications did not request
approval for "permanent" signs, nor were the 9 and 9A permits limited to
apply to "permanent" signs only. Rather, the 9 permit stated clearly that
the parties were not authorized to install any exterior signs without
District Commission approval. Similarly, the 9A permit unambiguously stated
that the parties could install only those signs approved in the permit, and
that they needed permission from the District Commission to install "any
other signage." (Emphasis added.) In light of HFE's continued use of the
banners despite explicit warnings from the District Commission not to do so,
it is not surprising that the 9B permit contained language expressly
prohibiting temporary signs. That language does not, however, change the
plain and unambiguous conditions set forth in the 9 and 9A permits that the
parties must obtain approval from the District Commission before installing
any unauthorized

signs. In sum, nothing in the common meaning of the word "sign" or in the
context of the 9 and 9A permits excludes a "sign" intended to be temporary.

To exclude temporary signs from the permit approval process would
subvert the purposes of Act 250 and negate the Commission's ability to
preserve an area's scenic or natural beauty under 6086(a)(8). Both
permanent and temporary signs have the capacity to affect an area's
aesthetics adversely. In fact, the permittees needed approval to change the
color of the two permitted awning signs. In approving the color change, the
District Commission concluded that "the change in color from a burgundy
maroon to a dark green . . . will reduce the overpowering appearance" of the
signs, and it cited its efforts to preserve the area's scenic and natural
beauty. I am unpersuaded that the temporary nature of the banners converted
them from "signs" to unregulated displays.

Because I believe the banners violated the terms of the 9 and 9A
permits, I respectfully dissent. I am authorized to say that Justice Johnson
joins in this dissent.

__________________________
Associate Justice

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Footnotes

FN1. The evidence relating to the existence of banners on other area
businesses was offered and admitted for the purpose of establishing
mitigating circumstances for the permittees' failure to comply with their
permits. It was not offered or accepted by the ELD to demonstrate that the
word "signs" in the 9 and 9A permits was ambiguous.

FN2. The majority also finds ambiguity in the permits because they refer to
the "installation" of signs, a word the majority states "would not be used to
describe the act of hanging or tieing a banner." The parties themselves,
however, used this term to describe the very act for which the majority
claims this word would not be used. For example, HFE wrote to the District
Coordinator requesting "temporary approval of the non-permanent banners now
installed at the Ponderosa." (Emphasis added.) In addition, in the
stipulated facts submitted to the ELD, the parties listed the dates each
banner had been "installed" on the restaurant.

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