1 

 STATE OF VERMONT 

 ENVIRONMENTAL COURT 

} 

Village of Essex Junction, } 

Plaintiff, } 

} 

v. } Docket No. 107-7-99 Vtec 

} 

Hauke Building Supply, Inc., } 

Defendant. } 

} 

} 

In re: Appeals of } Docket Nos. 119-7-99 Vtec, 120-7-99 Vtec, 

 Brooks Pharmacy } and 176-9-99 Vtec 

} 

} 

 Decision and Order on Motion for Summary Judgment

These four consolidated cases all involve the size of the signs on the Brooks 

Pharmacy facade in the shopping center owned by Hauke Building Supply, Inc. at 77 Pearl 

Street in the Village of Essex Junction. In Docket No. 107-7-99 Vtec, the Village took 

enforcement action against the property owner, asserting both that the ABrooks@ facade 

sign was too large, and that the additional signs in the windows also violate the sign 

ordinance. In Docket No. 119-7-99 Vtec, Brooks Pharmacy appealed from a decision of 

the Zoning Board of Adjustment (ZBA) of the Village of Essex Junction, upholding the 

Notice of Violation which formed the basis of that enforcement action. In Docket No. 120-

7-99 Vtec, Brooks Pharmacy appealed from the ZBA=s denial of a variance for the sign as 

installed. In Docket No. 176-9-99 Vtec, Appellants appealed from a decision of the ZBA 

upholding the Zoning Administrator=s denial of a permit for an alternative sign. Defendant 

Hauke Building Supply, Inc. and Appellant Brooks Pharmacy are represented by Daniel P. 

O=Rourke, Esq.; the Village is represented by David A. Barra, Esq. Defendant-Appellants 

have moved for summary judgment. The undisputed facts referred to in this decision are 

found in the parties= stipulation or in the agreed exhibits. 
2 

On October 23, 1998, ABrooks Drug@ as Applicant and AHauke Building Supply@ as 

Owner of Record, applied for a sign for the facade of the Brooks portion of the shopping 

center. The length of the facade attributable to Brooks Pharmacy equals 88 feet, of which 

44 feet is attributable to the central portico portion of the building where the ABrooks@ sign 

is located, and 44 feet is attributable to the end portion of the building where the 

APharmacy@ sign is located. The height of the apparent eave line in front is 10 feet, 

although a green metal facade is raised above that line on the side portion of the building 

to a vertical height of 21 feet, 11 inches. The central portico portion of the building has a 

peaked roof extending approximately 14 feet deep from the front of the facade. Measured 

by scale from the plan attached to Exhibit A, the peak of that roof is 32 feet above the 

finished grade, and the eaves of that roof are approximately 21 feet above the finished 

grade. 

The application shows the facade area calculation in the permit application filled in 

with the number A88@ for the facade length, the number A10@ for the Aheight of wall to the 

eave,@ and the number A880@ filled in for the facade area, and the calculation of the 

maximum size of wall sign allowed filled in as A44@ square feet. The parties have not 

presented as either an agreed or a disputed fact the identity of the person who filled in 

these numbers on the application, and in particular whether it was a representative of 

either Brooks Pharmacy or Hauke Building Supply. The application form does not mention 

the term Aparapet@; neither is that term defined in the zoning or sign regulations. The term 

Apeak@ is not used in the calculation of facade area; the regulations do not appear to have 

contemplated that the gable end of a building could face the street and hence require a 

facade area calculation. 

The portion of the application showing the width and length of the proposed sign 

was not filled in, but a drawing to scale was provided with the application showing two 

alternatives for the facade of the building, plus a side elevation. The first alternative 

showed ABrooks Pharmacy@ in a unified sign on the central portico segment of the building 

and a AConvenience Foods@ sign on the side portion of the building. The second 

alternative showed a larger ABrooks@ sign on the central portico segment of the building 

and a APharmacy@ sign on the side portion of the building. We may assume that it was the 
3 

second alternative, showing two widely separated signs: a ABrooks@ sign and a APharmacy@

sign, which was installed and is at issue in this litigation, but the parties have not presented 

this as an agreed fact. The ABrooks@ sign as installed has an area of approximately 130

square feet. The APharmacy@ sign as installed has an area of approximately 30 square 

feet. 

Two copies of the second page of the application were provided as part of agreed 

Exhibit A. On one copy, a signature shows on each signature line, one for the applicant, 

dated A9/19/98,@ and one for the landowner, dated A10/13/98.@ No evidence was presented 

as to whose signatures so appear, although the landowner=s signature appears to be 

ADavid G. Hauke,@ and the first name on the applicant=s line appears to be AKeith.@ The 

copy signed by both applicant and landowner does not have the Astaff action@ section filled 

in. On the other copy of the second page of the application, the applicant=s signature line 

is blank, the landowner=s signature line appears to be identical to the other copy, and the 

Astaff action@ section is filled in as Aapproved@ on 10/23/98. It is this copy which contains 

the additional handwritten information, in what appears to be a different handwriting and 

pen line thickness than the remainder of the application: ABrooks sign is 44@ and 

APharmacy sign is 30.@ This copy also shows, in handwriting, a check mark next to the 

number A44@ for the calculated maximum size of wall sign allowed, and, directly below that 

number, the underlined number A30@ next to which is written the word APharmacy.@

Under '714(D)(2), only one wall sign per business establishment is allowed. If both 

segments of the building were to be combined for the calculation of the sign area, then it 

appears from '714(C)(2) that the area between the ABrooks@ sign and the APharmacy@ sign 

must be included in the area computation. No evidence was presented as to why or how 

the two calculations were made separately for the two signs in the Permit. If the two 

segments of the building are treated separately, then the facade area must be calculated 

separately for each sign. 

If the term Aparapet@ is defined as something such as a wall raised above the roof 

line at the edge of a roof, and if the term Aeave@ is defined as something such as the line 

at which a roof meets a wall, then it appears that the calculation for the available sign area 

should be made using a length of 44 feet for each segment of the building, an eave height 
4 

of 21 feet1

 for the central portico segment, and a parapet height of 21 feet, 11 inches 

(21.917 feet) for the side segment. Using those numbers, the available sign area for the 

central portico segment would be five percent of 924 square feet, or a total of 46.2 square 

feet. The available sign area for the side segment would be five percent of 964.35 square 

feet, or a total of 48.2 square feet. However, the Court cannot reach that conclusion on the 

present motions for summary judgment, as necessary material facts are in dispute. 

Material facts are in dispute which are necessary to determine each of the four 

cases. The size and duration of the signs in the windows has not been established, 

necessary to show a violation of the temporary sign requirement of '714(A)(1)(c). No 

evidence has been presented to establish the definition or usage of the term Aparapet@ or 

the term Aeave@ in the field of architecture or shopping center development or building 

regulation. Without such evidence, it is not possible finally to determine how to calculate 

the facade area under the regulations, either to determine if the sign which was the subject 

of the enforcement action violates the ordinance, or to determine whether the more recent 

application should be approved or modified. 

 

1Nothing in the regulations supports using the peak height to calculate the 

facade area for the central portico segment, much less for the overall building, unless 

the term Aparapet@ is used to mean Aroof peak@ as a term of art in this field. 

Further, no evidence has been presented as to who filled in or signed the 

application, without which it is not possible to determine whether or which of the parties 

should be bound by the assertions in the application (which is a separate question from 

whether they should be bound by the permit as issued). While the applicant is bound by 

the permit as issued, as it was not appealed, the Court cannot determine which document 

is the permit as issued. That is, without evidence as to who wrote ABrooks sign is 44@ and 

APharmacy sign is 30@ on the second page of the permit, without evidence as to whether it 

is apparent that either or both of those numbers refers to the square footage of the 

respective signs, and without evidence as to whether a copy of the permit with that writing 

was ever posted or provided either to Brooks Pharmacy or to Hauke Building Supply, the 
5 

Court cannot determine whether they should be bound by that added writing on the permit. 

 Further, no agreed facts or affidavits were submitted addressing the criteria relevant to 

determining whether a variance should be issued. 

Accordingly, based on the foregoing, Defendant-Appellants= Motion for Summary 

Judgment is DENIED. This matter will be set for a hearing on the merits of the remaining 

facts, unless the parties prefer to supplement their motions for summary judgment, or to 

enter into discussions towards resolving this dispute along the lines suggested by this 

decision. The parties shall confer and state to the Court in writing on or before May 18, 

2000 whether they agree on how they wish to proceed. If they wish a hearing, they should 

state their estimates of the amount of time necessary, and any unavailable dates in June, 

July or August. If they do not agree on how they wish to proceed, we will hold a 

conference in person at the Costello Courthouse in Burlington on Thursday, May 25 at 

12:45 p.m. to discuss any unresolved procedural issues. 

Done at Barre, Vermont, this 8th day of May, 2000. 

_________________________________________________ 

Merideth Wright 

Environmental Judge