1 STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION
} } In re Downing Act 250 Application } Docket No. 225-11-09 Vtec } }

Decision and Order
Appellant-Applicants Richard and Joan Downing appe aled from the District 7 Environmental Commission’s denial of Act 250 perm it amendment #7C0600-10-1, involving the placement and illumination of a twent y-four-foot-high cross on their property in Lyndonville, Vermont. 1 Appellant-Applicants are represented by L. Brooke Dingledine, Esq. The Land Use Panel of th e Vermont Natural Resources Board, represented by Melanie Kehne, Esq., entered an appearance on Question 1 of the Statement of Questions, regarding the merits of the application under Act 250. The State of Vermont, represented by Assistant Atto rney General Robert F. McDougall, Esq., entered an appearance with respect t o the federal and state constitutional issues and the federal statutory iss ues raised by Questions 2 through 5 of the Statement of Questions. Interested parties David A. Gascon, John Irwin, and Barbara Irwin entered appearances representing them selves. An evidentiary hearing was held in this matter bef ore Merideth Wright,

1 The cross has remained in place, but not illumina ted, during the pendency of this litigation. The application before the Court (Exs. 3 & 4) requests to place the cross and to illuminate it for twelve to thirteen weeks p er year: from Ash Wednesday through Easter Sunday (approximately six weeks), du ring a week in early September (commemorating the birth of Mary), and fro m Advent Sunday (four Sundays before Christmas) through Epiphany (January 6) (approximately six weeks).2

Environmental Judge. A site visit was taken at the conclusion of the first day of hearing with the parties and their representatives in daylight into dusk, and the parties requested that Judge Wright return later th at night to repeat the site visit observations later at night. At the conclusion of the hearing, due to testimony about the effect of moonlight on the appearance of the li ghted cross, Applicants requested that the Court’s decision be postponed until an add itional site visit could be scheduled during clear conditions without moonlight . The parties were given the opportunity to submit written memoranda and request s for findings, and to respond to those filings. Weather conditions combined with the parties’ and the court’s schedules made it impossible to hold the requested second sit e visit for several months. Subsequently, Applicants requested that the Court sc hedule a supplementary hearing and site visit, both in the daytime and at n ight, to consider the effect of the newly-installed wind towers on a ridge in Sheffield visible from the project and its neighborhood. The hearing was held and the parties filed supplementary memoranda in late October 2011, with responses being filed on November 21, 2011. The daytime and nighttime site visit to view the Sh effield wind towers was held on the Sunday of the Thanksgiving weekend: November 30 , 2011.

Statement of Questions remaining after summary judg ment order This Court’s summary judgment decision issued on N ovember 29, 2010 (Summary Judgment Decision) resolved the following portions of the five-question Statement of Questions: Question 3 in its entirety, the federal constitutional Establishment Clause issue from Question 2; and the Vermont constitutional Compelled Support Clause issue from Question 5. Th is Court is required to consider the permit amendment application de novo, a pplying the substantive standards that were applicable before the District Commission. 10 V.S.A. § 8504(h).3

The issues remaining for this decision are those fr om Questions 1 and 4 of the Statement of Questions: 1) Whether the proposed project has an undue advers e impact upon the scenic or natural beauty of the area, aesthetics , historic sites, or rare and irreplaceable natural areas under Criterio n 8 of Act 250, [10 V.S.A. § 6086(a)(8)]. . . .
4) Whether the application of Act 250 to the propos ed project substantially burdens the Applicants’ free exercise of religion under the federal Religious Land Use and Institutionalize d Persons Act (“RLUIPA”, 42 U.S.C.A. 2000cc et seq.). and the remaining issues from Questions 2 and 5: Whether the application of Act 250 to the proposed project interferes with the Applicants’ . . . right[s] to . . . [the] free exercise of religion and/or free exercise of speech under the [First Ame ndment to the] U.S. Constitution [or] under the Vermont Constituti on. 2

Permit history/installation of the cross Applicants own more than 800 acres of land off Dar ling Hill Road in the town of Lyndon, Vermont. Darling Hill Road extends in a north-northeasterly direction from Route 114 towards East Burke. Applicants and several related family members reside on portions of the property, and operate the Meadow View Farm, the Wildflower Inn, and the Steppingstone Spa and Wellne ss Center on the property.
The Wildflower Inn is a 24-room bed-and-breakfast i n which Applicants are business partners and which is operated by their da ughter and her husband. The
Wildflower Inn’s restaurant also serves lunch and d inner. The property is subject to
Act 250 Land Use Permit #7C0600 and the various ame ndments that have been

2 The Summary Judgment Decision determined that Act 250, on its face, does not violate the Free Exercise Clause of the First Amend ment to the U.S. Constitution or the free exercise of religion provisions of Chapter I, Article 3 of the Vermont Constitution4

made to the permit since it was originally issued f or the construction of the Wildflower Inn in April 1985. 3 On June 8, 2005, Applicants received approval from the District 7
Environmental Commission for the tenth amendment to their permit. Act 250 Land Use Permit #7C0600-10 (the Chapel Act 250 Permit Am endment), allowed them to construct, on a hill on their property, a 34-foot-by- 50-foot private stone chapel, which is 39 feet in height and has an attached 28-f oot-by-23-foot entry vestibule. The chapel is oriented roughly north-northeast, that is, it is roughly parallel to Darling Hill Road in that location. Its entry vest ibule is located on the southern end of the building and its altar is located on the nor thern end of the building. The chapel building has a basement level accessible by an exterior landscaped path and ramp entering the basement from the west. The base ment level is not visible. The Chapel Act 250 Permit Amendment included condi tions specifying that no significant changes to the design or use of the project could be made without written approval of the District Coordinator or the District 7 Environmental Commission, and that all exterior lighting was to be shielded so that the light sources would be concealed from view beyond the per imeter of the project. Applicants completed construction of the chapel du ring the summer of 2007. They have also installed an outdoor path, with a se ries of fourteen posts with scenes representing the Stations of the Cross, in an arc a round the northern end of the

3 Amendments to the permit unrelated to the present application have included changes to the sewer plan for the property (7C0600- 3), the conversion of a barn into a theater (7C0600-5), the construction of two single family homes with a shared driveway and garage (7C0600-6), the expansion of a m aintenance garage and addition of parking (7C0600-7), the renovation of a barn into short-term rental units (7C0600-8), the conversion of a farm house for bed-a nd-breakfast use (7C0600-9), the construction of a heated 4,500-square-foot pavilion for group functions (7C0600-11), and a seven-lot subdivision of land and constructio n of new single-family homes on four of the lots (7C0600-12).5

chapel building. They have also installed a landsc aped rosary garden on the chapel grounds. On November 28, 2007, Applicants erected a 24-foot-t all, 9-foot-wide cross, which they had acquired from its previous owner who was selling the property in New Hampshire where the cross had previously been i nstalled. Applicants installed the cross outside the northern end of the chapel bu ilding, inside the arc of the Stations of the Cross and visible through the windo w behind the altar. The cross is constructed from a steel I-beam painte d light blue on its sides, and is faced with translucent white plastic panels on the front and back. The back of
the cross is shielded so that it is not illuminated . The front of the cross is equipped with eight four-foot-long, 32-watt fluorescent bulbs 4 to internally illuminate the face of the cross facing to the north, away from the chap el building. Applicants did not initially apply for an amendment to their Act 250 permit for the cross. They did apply in 2007 for municipa l conditional use approval of the cross, requesting in that municipal application to k eep it illuminated from dusk 5

4 The type of bulb is now “color 30,” a so-called so ft white color. Its illumination level was reduced from the type of bulb used when i t was first installed and illuminated, so that, when illuminated, it now appears to be dimmer to the human eye than it did when first installed. However, no e vidence was presented as to any objective measurement of its illumination levels at either time, that is, how much visible light it emits or the concentration of that light over its surface area.

5 No definition of the term “dusk” was offered in e vidence. Three related terms: “sunset,” “civil dusk,” and “nautical dusk” are defin ed on the federal National Oceanographic and Atmospheric Administration (NOAA) website: http://www.weather.gov/glossary/. Sunset is define d in the NOAA glossary as the time at which the last part of the sun drops below the horizon. Civil dusk is defined as “the time at which the sun is 6 degrees below th e horizon in the evening; [a]t this time objects are distinguishable but there is no lo nger enough light to perform any outdoor activities.” Nautical dusk is defined as “ the time at which the sun is 12 degrees below the horizon in the evening; [a]t this time, objects are no longer distinguishable.” The local times for these events are available to the public through6

until dawn 365 days per year. The initial municipa l decision on this application required Applicants to reduce the size of the cross and to keep it unlit. In 2008, Applicants subsequently filed a revised municipal a pplication seeking to keep the 24-foot-high cross, but to leave it unlit; that muni cipal application was granted. In May 2009, Applicants again applied for municipal approval of an illumination schedule for the cross, this time to il luminate the cross from dusk until dawn during approximately 174 days per year: from A sh Wednesday (the beginning of Lent, forty days before Easter) through Pentecost Sunday (fifty days after Easter), during a week in early September commemorating the birth of Mary, during the month of October (dedicated to Mary the Blessed Mot her), and from the first Sunday in Advent (generally in late November, four Sundays before Christmas) through Epiphany (January 6). During the municipal hearings, after the Act 250 ap plication at issue in this matter also had been filed, Applicants offered to il luminate the cross during the dates requested in the present Act 250 application, or, in the alternative, to illuminate the cross until 11 p.m. on 365 days per year. The municipal decision granted conditional use approval allowing the cross to remain in place but only allowing it to be illuminated from dusk until dawn during a portion of the requested time: from the first Sunday in Advent through Epiph any, that is, during approximately six weeks from late November through January 6. 6

the NOAA website or at other publicly accessible we bsites; the local Lyndonville time for sunset, for example, is posted on the websit e of the Fairbanks Museum and Planetarium: http://www.fairbanksmuseum.org/Current Conditions. In Vermont, a little more than an hour elapses between sunset and nautical dusk. (The Court has taken judicial notice of this fact as presented on the U.S. Naval Observatory website, available at http://aa.usno.navy.mil/data/docs/RS_O neYear.php as referenced by the NOAA website.)

6 The Downings’ appeal of that decision is the sub ject of Docket No. 139-7-09 Vtec,7

On June 8, 2009, Applicants applied for Act 250 app roval of the application that is now before the Court. That application pro poses to amend the Act 250 Chapel Permit (#7C0600-10) to allow the placement a nd the illumination of the already-installed cross. In the application, Applic ants propose to illuminate the cross from dusk to dawn during the following specif ic periods totaling approximately twelve to thirteen weeks per year: fr om Ash Wednesday through Easter Sunday (approximately six weeks), during a w eek in early September commemorating the birth of Mary, and from Advent Sun day (four Sundays before Christmas) through Epiphany (January 6) (approximat ely six weeks). The District 7 Environmental Commission denied both the placement and the illumination of the cross; that denial is the subject of the present ap peal, Docket No. 225-11-09 Vtec.

Part I – Application for placement and illumination of cross under Act 250 aesthetics criterion Act 250 Criterion 8 (Aesthetics) requires that the project will not have an
undue adverse effect on the scenic or natural beaut y of the area or on aesthetics. 710 V.S.A. § 6086(a)(8). Harvey & West 65 Unit Campgro und Act 250 Application, No. 110-7-10 (Vt. Super. Ct. Envtl. Div., Nov. 9, 2011) ( Wright, J.). With respect to Criterion 8, the burden of proof is on the party opp osing the applicant to show an unreasonable or adverse effect. 10 V.S.A. § 6088(b ); see In re Denio, 158 Vt. 230, 237 (1992). The so-called Quechee test, named for a 1985 decisio n of the former Environmental Board, In re Quechee Lakes Corp., Nos. 3W0411-EB and 3W0439-EB, Findings of Fact, Conclusions of Law, and Order, at 1 7–20 (Vt. Envtl. Bd. Nov 4,

which has been placed on inactive status pending th e outcome of the Act 250 case.

7 The other aspects of criterion 8, involving histo ric sites or rare and irreplaceable natural areas, are not at issue in the present case.8

1985), provides a two-step methodology for analyzing whether a project will not have an undue adverse effect on aesthetics, that is, whether it will fit its context and be in harmony with its surroundings. See In re McS hinsky, 153 Vt. 586, 591–93 (1990) (adopting the analysis employed by the forme r Environmental Board when determining compliance under Act 250 Criterion 8). As described by the Vermont Supreme Court in In re Times & Seasons, LLC, the Court must take the following two-pronged appro ach to determine if an application complies with Act 250 Criterion 8 as to aesthetics: first, the Court must determine if the project will have an adverse aesth etic impact, and, if so, it must then determine whether the adverse impact will be undue. 2008 VT 7, ¶ 8, 183 Vt. 336. The project has an adverse impact if it is not “in harmony with its surroundings” in other words, if it does not “fit the context within which it will be located.” Quechee Lakes Corp., Nos. 3W0411-EB and 3W0439-EB, at 18. An adverse impact is undue if the project “violates a clear, written community sta ndard intended to preserve the aesthetics or scenic, natural beauty of an area”; or if the project “offend[s] the sensibilities of the average person”; or if the app licant has “failed to take generally available mitigating steps which a reasonable perso n would take to improve the harmony of the proposed project with its surroundin gs.” Times & Seasons, LLC, 2008 VT 7, ¶ 8; In re Rinkers, Inc., 2011 VT 78, ¶ 9; I n re Eastview at Middlebury, 2009 VT 98, ¶ 20, 187 Vt. 208. Darling Hill Road extends in a north-northeasterly direction from Route 114 towards East Burke, proceeding generally uphill fro m the elevation of Route 114. The chapel is located on a hill above the elevation of Darling Hill Road, to the west of the road. The chapel is visible from Darling Hi ll Road from adjacent to the chapel until a point just beyond the Wildflower Inn, a dist ance of about 4000 feet by scale. The Gascon property is located east of the roadway directly across from the chapel, at the elevation of the roadway. North of the Gasc on property, the land east of the9

road within view of the chapel, including the Devere aux property, is generally higher in elevation than the roadway. The land to the west of the road forms a valley of gently rolling open pasture and farm land sloping generally downhill from the elevation of the road, surrounded by forested la nd to the south of the chapel and to the west and north of the open pasture and farm land. The Irwin property is located west of the roadway, north of the chapel and south of the Wildflower Inn, with the existing house located near the roadway. A second potential site for construction of a house on the Irwin property is lo cated farther to the west than the existing Irwin house; that site has a clear view of the chapel from the north. Views looking south and southwest from points uphil l along Darling Hill Road show the chapel against a dark forested backgr ound, and show the cross against the end of the chapel. The cross is propor tional to and smaller than the end of the chapel. The upright and cross pieces of the cross are thin in proportion to their length, 8 so that in daylight the cross does not appear to b e heavy or to dominate the appearance of the northern end of the chapel. In daylight, when seen against the end of the chapel, or in the same field of view as the chapel, the unlit cross is congruent with its context, even though it is light in color. 9 When seen from below, near the Gascon property, against the sky in the daytime, the light-blue-and-

8 The upright segment of the cross is 24 feet in he ight, 141⁄4 inches in width, and 8 inches in depth; the cross piece is 9 feet wide, inclusive of the wid th of the central upright. The significance to Applicants of the dim ensions and appearance of the cross is discussed in more detail below in Part II.

9 Views of the cross from the house on the Devereau x property, and from the potential second house site on the Irwin property, o ccupy a more central portion of the mid-distance visual field than from the public roadway, and the cross is seen against the dark forest background just beyond the chapel. Nevertheless, during the daytime from these vantage points, the unlit cross i s seen in the context of the chapel, which appears in the same visual field.10

white cross is not obtrusive in color, whether the s ky is blue, contains white clouds, or is an overcast gray. Views looking west from Darling Hill Road show for est in the distance beyond the pastures. The very distant scenic views looking west from the
Wildflower Inn and from some locations on the roadw ay, and looking northwest from the chapel grounds, show hillsides and mountain ridges beyond the open rolling farm and pasture land. A group of wind tow ers along the mountain ridge in Sheffield, approximately eight miles away, are visibl e in the very far distance from the chapel grounds and from the Wildflower Inn, as w ell as from some locations along the roadway. In the daytime the towers, which are white, appear to be similar in shape to the cross, but because they are in the far distance they appear to be extremely small and are not obtrusive or even parti cularly noticeable to a casual
observer. 10 From Darling Hill Road, the view of the chapel an d cross does not also contain the distant view of the towers; that is, it is necessary for the observer to turn from looking at the towers in order to see the chap el and the cross, and vice versa. At night, the view of the fields and forest to the west and northwest of Darling Hill Road is completely dark. Locally in t he Darling Hill neighborhood, only relatively dim lights incidental to the reside ntial and inn uses are on in the evening and many or most of these are not left on a ll night. At night some dim lights of residences and institu tions are visible in the very far distance, on the hillsides to the west and north west beyond Route 5. At night, the red warning lights at the tops of the Sheffield wind towers are also visible at the very far distant ridgeline; they appear to blink in termittently, probably due to their blades obscuring the light source intermittently as they turn. At the distance from

10 The photographs in evidence as Exs. 201, 202, and 204 from the supplemental hearing in this matter foreshorten the middle dista nce valley, making the wind towers appear to be closer and more prominent than they appear to the human eye.11

which they are seen from the Darling Hill neighborh ood, the apparently blinking, red lights of the Sheffield wind towers are not bri ght or obtrusive, and do not draw the eye. The Darling Hill Road neighborhood is rural in cha racter. It contains a few residences and farmhouses near the roadway, as well as the Wildflower Inn and restaurant, and the Steppingstones Spa businesses. An historic mansion and another inn are located farther north on Darling Hill Road; however, they are beyond the area from which the cross and chapel are visible. From a vehicle driving north and uphill along Darling Hill Road, it is necessary to t urn to look to the left and behind in order to see the cross. From a vehicle driving south down Darling Hill Road, the
cross is visible in the observer’s direct field of vision. It is visible during the day against the chapel or against the forest adjacent t o the chapel. After the surroundings have become dark, the illumi nated cross is visible as the brightest object in the field of vision, and is devoid of context. At night, when the cross is illuminated, it is the most noticeable feature in the field of vision of an observer traveling down Darling Hill Road from the Wildflower Inn to near the chapel. Even though its illumination has been redu ced so that it is not as bright as it was when first installed, it is large and appears br ight. It draws the eye and is incongruous in its dark rural setting. Its appeara nce is startling to an observer, especially to one traveling south on Darling Hill R oad, when it appears suddenly in
the middle distance. However, for approximately an hour commencing at su nset, during dusk or twilight, while the surrounding landscape and nearby chapel remain visible but are becoming dark, the illuminated cross does not appear to be so startlingly bright. When observed during early twilight conditions, as o bserved during the site visit, it first appears to the eye to be dimly glowing; it ma kes a slow transition and does not appear to be startling or obtrusive in its setting until the surrounding darkness has12

increased to the point at which objects are no long er distinguishable, that is, by
about an hour after sunset.
Because the aesthetic effect of the cross’ illumin ation is distinct from that of the cross as a structure in the daytime landscape, t his decision considers Applicants’ request for the illumination of the cross under Cri terion 8 of Act 250 separately from their request for approval to leave the cross in pl ace as installed.

Placement, size, dimensions, and color Although the cross is large, it is relatively slend er in its construction. It is smaller than and proportional in scale and shape to the north end of the chapel building. It is placed so that it is seen from the public roadway and from the neighbors’ properties either against the northern e nd of the chapel, or against the nearby forested background, not against the distant scenic views. Some observers, to whom the cross is a positive and meaningful symbol, do not perceive it to have any adverse effect on the s cenic beauty or aesthetics of the area. Seen only as a large man-made object in an o therwise rural residential and agricultural area, others perceive the cross as havi ng an adverse effect on the scenic beauty or aesthetics of the area in their viewshed. In daylight, that is, when the cross can be seen tog ether with and in the context of the chapel, it fits its context and is in harmony with its surroundings. Its eight-inch-wide sides are sufficiently narrow so th at the light blue color is not obtrusive when it is seen against the sky. The app roximately one-foot-wide translucent white panels on the front of the cross make it somewhat more noticeable
than a wood or earth-toned cross would be when seen against the stone of the chapel or the forest background, but in daylight, the panels are narrow enough so
that the non-illuminated cross as a whole is not ob trusive or incongruous in the context of the large stone chapel in its rural surr oundings. The non-illuminated13

cross fits the context of the rural chapel, and is in harmony with its surroundings of the chapel, forested background, and sky. Accordingly, the placement, size, dimensions, and colo r of the cross, in daylight, will not have an adverse effect on the sce nic beauty or aesthetics of the

area.

Illumination
The illumination of the cross from dusk to dawn wi ll, however, have an adverse effect on the scenic beauty of the area’s t wilight and nighttime rural landscape and on the aesthetics of the area. In da rkness, it does not fit in its context and is not in harmony with its dark rural surroundi ngs. The illuminated cross can be seen from a distance up the valley, both from Dar ling Hill Road and from the Devereaux and Irwin properties, as well as from the Wildflower Inn. It draws the eye and is obtrusive in the field of vision. The i lluminated cross is especially
noticeable when it comes into view of an observer t raveling towards the south along Darling Hill Road. The intermittent red blinking l ights on top of the Sheffield wind towers in the very far distance are barely noticeab le and do not draw the eye when observed at night from the Darling Hill neighborhoo d. The towers do not constitute a visual context for the illuminated cross, both for this reason and because the cross and the wind tower lights are not simultaneously in the field of vision of an observer from Darling Hill Road. Therefore the Court must p roceed to determine whether the adverse effect is undue by applying the Quechee criteria. If any one of the three factors is found, the Court must conclude that the a dverse effect of the cross’
illumination is undue. Illumination - Clear, written community standard Neither the municipal plan nor the zoning ordinanc e, nor any other written community standard was provided in evidence from wh ich the Court could14

determine whether there is a clear, written communi ty standard regulating nighttime illumination in the Town of Lyndon genera lly, or aimed at preserving the scenic beauty or aesthetics of the Darling Hill nei ghborhood in general.

Illumination - Reasonable mitigating steps As stated in In re Rinkers, Inc., When a project is found to have an adverse impact o n aesthetics, the applicant must “take generally available mitigating steps to reduce the negative aesthetic impact of a particular project,” otherwise, “[f]ailure to take advantage of available alternatives may ren der an aesthetic impact unduly adverse.” In re Stokes Commc’ns Corp ., 164 Vt. 30, 39 . . . (1995). Ordinarily “a generally available miti gating step is one that is reasonably feasible and does not frustrate [eith er] the project’s purpose or Act 250’s goals.” Id. at 39 . . . .
2011 VT 78, ¶ 12. The current apparent illumination level of the cro ss represents a reduction from its brightness when originally installed, altho ugh, as discussed in footnote 4, above, no objective measurement of its brightness or illumination level has been provided to the Court. The illumination schedule p roposed in the present application from Ash Wednesday through Easter Sunda y, during a week in early September commemorating the birth of Mary, and from Advent Sunday (four Sundays before Christmas) through Epiphany (January 6), that is, during a total of twelve to thirteen weeks per year, also represents a mitigating step, as Mr. Downing testified at trial that he would prefer the cross t o be lit every night from dusk to dawn, year round, and that he would prefer the illumi nation to be so bright that it
could be seen in Canada. Despite these mitigating steps, Applicants have fai led to take all the generally available mitigating steps to improve the harmony o f the proposed project with its surroundings. It is reasonably feasible to limit t he daily illumination schedule of the cross (during the periods proposed by Applicants) t o the hour commencing at15

sunset, when the illuminated cross does not appear t o be so startlingly bright as during the nighttime. Such a limitation would allow reasonable illumination of the cross, and would reduce the adverse effect of the cr oss’ illumination on the scenic beauty and aesthetics of the area’s twilight and ni ghttime rural landscape so that the
adverse effect would not be undue. See In re Hanna ford Brothers Co. and Southland Enters., Inc., No. 4C0238-5-EB, Findings of Fact, Conclusions of Law, and Order (Altered), at 13, 18, 28 (Vt. Envtl. Bd. Nov. 27, 2002) (concluding that allowing the internal illumination of a sign for a large sto re would create an unduly adverse aesthetic impact because its orientation would crea te bright light “against the dark background of trees” and “contribute to an increase in ambient nighttime light” but that prohibiting its internal illuminate would cons titute reasonable mitigation). For this reason, the dusk-to-dawn illumination of th e cross during the periods proposed by Applicants would create an undue advers e effect on the scenic beauty
and aesthetics of the area. Illumination – Sensibilities of average person In addition, the illumination of the cross from dus k to dawn during the three periods proposed by Applicants totaling twelve to t hirteen weeks per year (or its illumination from dusk to dawn during any longer pe riod), offends the aesthetic sensibilities of the average person because this ru ral area is dark and is not otherwise illuminated all night long. The illumina ted cross is particularly shocking
and out of character with its dark rural surroundin gs when it first appears to an observer who is traveling south on Darling Hill Roa d in full darkness. On the other hand, the illumination of the cross fo r one hour beginning at sunset, during the three periods proposed by Applica nts, which total twelve to thirteen weeks per year, would not offend the sensib ilities of the average person in this rural area. Although the context of the chapel building gradually becomes dim and indistinguishable over the course of that hour, it remains sufficiently visible to16

provide a harmonious setting for the cross. Moreov er, other lights are on in the area in the early evening, and the cross does not appear to be unduly bright or shocking in the twilight conditions.

Accordingly, the illumination of the cross for one h our beginning at sunset during each day of the three periods proposed by Ap plicants—from Ash Wednesday through Easter Sunday, during a week in e arly September commemorating the birth of Mary, and from Advent Sun day (four Sundays before Christmas) through Epiphany (January 6)—at the curr ent illumination level and
color value will not have an undue adverse effect o n the scenic beauty or aesthetics of the area and is therefore approved. The illumin ation of the cross later into the evening and at night would have an undue adverse ef fect on the scenic beauty and aesthetics of the area, and cannot be approved under Criterion 8 of Act 250.

Part II – Question 4 and remaining constitutional i ssues from Questions 2 & 5:
All that remains for the Court to consider is whet her the limitation imposed
in this decision on the internal illumination of th e cross violates either the federal statute raised by Question 4, or the remaining const itutional considerations as to religious exercise or freedom of speech raised by Q uestions 2 and 5. Applicants are life-long, devout Roman Catholics. They built the chapel in thanks to the Virgin Mary. They regularly and sinc erely attend mass and undertake the essential sacraments of their faith. They also regularly and sincerely express and increase their faith through prayer and private dev otional practices such as saying the rosary or praying at the stations of the cross. Certain private devotional practices such as these have long been officially recognized or sanctioned by the Catholic Church. Other devotions may be allowed to be practiced while they are under investigation by the Catholic authorities,17

although they are not or not yet officially recogni zed. The cross at issue in the present case is the focus of one such devotion that the Church allows to be practiced although it remains under investigation and has not been officially recognized. The cross at issue in the present case is a cross of a particular type, color, size,
and dimensions known as a “Cross of Love of Dozulé. ” It is constructed at 1/100 scale of a cross reportedly first seen in a series of visions in the 1970s by a woman in the town of Dozulé, France. The larger scale cross seen in the visions is known as the “Glorious Cross” of Dozulé to distinguish it fr om the smaller “Cross of Love.” Applicants believe that, in these visions, Jesus Chr ist directed that the Glorious Cross, measuring 738 meters (2421 feet) in height, 11 with arms each extending for 123 meters (403.5 feet), be constructed to serve as a be acon to all people, heralding the return of Jesus Christ. See Exs. 15 and 16. Appli cants also believe that, after people
failed to construct a cross of those enormous dimen sions, later visions directed that thousands of “Crosses of Love” at 1/100 the scale o f the Glorious Cross be constructed all over the world. They believe that the devotion requires the cross to
be oriented with its arms in an east-west direction , to be blue and white in color, associated with the Virgin Mary, and to be a particu lar size and scale (7.38 meters or 24.21 feet in height, with each arm of the cross ext ending outwards from the upright for 1.23 meters or 4.035 feet). They believe that a particular prayer must be said in connection with the Dozulé devotion and regularly a nd sincerely pray the Dozulé prayer. They believe that the visions directed tha t each Cross of Love be illuminated, but also that the Lord can work around human obstacles. Applicants believe that they have been chosen to b e guardians of one of these thousands of “Crosses of Love” of Dozulé. With reg ard to the abbreviated

11 According to other messages reported in the 1990s , see Ex. 16, the height represents the elevation of Calvary, in Jerusalem, th e location of the Crucifixion.18

illumination schedule requested in the application, Applicant Joan Downing
testified that “I believe that the Lord knows that we’re doing all we can and that He is okay with the limited illumination.” Many such crosses have been constructed world wide; seven or eight of which are located els ewhere in Vermont. Applicants also have a 1/1000 scale indoor Dozulé cross, about 30 inches in height, meant to be used for indoor or home devotions, which is located downstairs in the chapel.

Question 4 of the Statement of Questions: RLUIPA Question 4 of the Statement of Questions asks wheth er Act 250 as applied to the proposed cross substantially burdens Appellant- Applicants’ free exercise of religion under the federal Religious Land Use and I nstitutionalized Persons Act of 2000 (RLUIPA). RLUIPA prohibits the state from imp osing or implementing a land use regulation in a way that “imposes a substantial burden” on “the religious exercise of a person” or group, unless the regulatio n is the least restrictive means of furthering a compelling governmental interest. 42 U.S.C.A § 2000cc(a)(1). 12 RLUIPA “does not provide religious institutions wit h immunity from land use regulation, nor does it relieve religious instit utions from applying for variances, special permits or exceptions, hardship approval, or other relief provisions in land use regulations, where available without discriminat ion and unfair delay.” 146 Cong. Rec. S. 7774, 7776 (2000) (Joint Statement of Senator Hatch and Senator

12 Applicants have the initial burden of demonstrat ing that Act 250, as applied to this application, imposes a substantial burden on th eir exercise of religion. 42 U.S.C.A. § 2000cc-2(b). If Applicants produce of p rima facie evidence to support their claim, the burden shifts to the State to persu ade the Court that regulation of the cross’ illumination under Act 250 does not violate RLUIPA. Id. If the Court determines that Applicants’ religious exercise is s ubstantially burdened, the State must then prove that Act 250 is the least restricti ve means of furthering a compelling governmental interest. 42 U.S.C.A. § 2000cc(a)(1).19

Kennedy). Because the present decision allows the current pla cement, size, dimensions, and color of the cross, and allows it to be interna lly illuminated for one hour a day, beginning at sunset, during the three periods reques ted by Applicants (which total twelve to thirteen weeks per year), all that remains to be analyzed under RLUIPA is
whether the limitation of the cross’ internal illum ination to an hour in the early evening imposes a substantial burden on Applicants’ religious exercise. RLUIPA defines a religious exercise as “any exercis e of religion, whether or not compelled by, or central to, a system of religiou s belief.” 42 U.S.C.A. § 2000cc5(7)(a). Religious exercise includes the use, conve rsion, or construction of property for the purposes of religious activity. 42 U.S.C.A . § 2000cc-5(7)(b); see also Westchester Day School v. Village of Mamaroneck, 504 F.3d 338, 347–48 (2d Cir. 2007). There is no question that Applicants are en tirely sincere in their religious beliefs, and that their construction and use of the chapel, the Stations of the Cross, and the rosary garden are sincere religious exercis es or devotions to express and strengthen their faith. Equally, their proposed pla cement of the cross, including its size, relative dimensions, orientation, color, and prop osed illumination, is a sincere religious exercise, even though it is a private devo tion and is not mandated or required officially by the Catholic Church. 13

13 The State argues that Applicants did not present evidence that the illumination of the cross during particular hours, dates, or seasons of the year is essential to their religious practices or mandated by their religion. However, such an analysis is precluded under RLUIPA’s definition of religious ex ercise as “whether or not compelled by, or central to” Applicants’ system of r eligious belief. 42 U.S.C.A. § 2000cc-5(7)(a). A court may inquire into the sin cerity of an applicant’s religious exercise, but not into whether the exercise is a “co re religious belief[].” See, Int’l Church of Foursquare Gospel v. City of San Leandro, 673 F.3d 1059, 1069 (9th Cir. 2011)

.20 Federal courts have interpreted a “substantial burd en” on individuals’ exercise of religion to be a burden that puts subst antial pressure on religious adherents to modify their religious behavior and vi olate their religious beliefs, or to choose between forgoing either a precept of their r eligion or a generally available governmental right. See Lovelace v. Lee, 472 F.3d 1 74, 187 (4th Cir., 2006) (citing to decisions from other circuits articulating a simila r understanding of the term “substantial burden” in RLUIPA); see also Westchest er Day School v. Village of Mamaroneck, 504 F.3d 338, 349 (2d. Cir., 2007) (conclu ding that the formulation of
the “substantial burden” definition that is the mos t applicable to zoning applications for the expansion of a religious institution’s faci lities is whether the government is coercing the institution to c hange religious behavior). To constitute a substantial burden, the regulation m ust do more than merely inconvenience the applicant’s religious beliefs. S ee Westchester Day School, 504 F.3d at 349; Shepherd Montessori Ctr. Milan v. Ann Arbor Charter Tp., 675 N.W.2d 271, 281 (Mich. Ct. App. 2003); see generally Bram A lden, Reconsidering RLUIPA: Do Religious Land Use Protections Really Benefit Re ligious Land Uses, 67 UCLA L. Rev. 1779 (2010); 3 Am. Law. Zoning § 28.5 (5th ed. 2012) (“[N]umerous courts have explained that the fact that compliance with land u se regulations may be costly, time consuming or inconvenient does not automatically re nder those land use regulations substantial burdens.”). The availability of reason able alternatives to what a zoning permit applicant is proposing, even if those alterna tives are more expensive or less desirable, may prevent a regulatory decision that r estricts the proposal from being a substantial burden on the applicant’s exercise of r eligion. See, e.g., Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003) (concluding that the city’s regulations restricting the location of churches did not create a substantial burden on the plaintiff churches’ religious exercis e); Vision Church v. Vill. of Long Grove, 468 F.3d 975, 984, 999–1000 (7th Cir., 2006) (c oncluding that a facially neutral21

zoning ordinance that effectively restricted the si ze of a church facility proposed by applicant did not substantially burden the applican t’s religious exercise even though the applicant applied to construct a much larger fa cility than allowed under the regulations). In Trinity Assembly of God of Baltim ore City, Inc. v. People’s Counsel for Baltimore County, the court ruled that the deni al of a variance for a proposed sign that was significantly larger than allowed und er the zoning regulations did not substantially burden a church’s religious exercise, concluding that [i]n sum, the Church has not been denied any use of a sign as a means of evangelism, but only the non-conforming use of a sign that cannot be as large and eye-catching as the Church might de sire. Denial of its variance request burdens the Church’s religious exe rcise, but not substantially, so as to make any use of a sign for u plift and recruitment “effectively impracticable” or to compel the congre gants to “violate [their religious] beliefs.”
941 A.2d 560, 574–75 (Md. Ct. Spec. App. 2008). In the present case, the Court has applied Criterio n 8 of Act 250 to approve the location, size, dimensions, color, and appearance of the cross, as well as to approve the illumination of the cross for one hour a day, beginning at sunset, during the three periods requested by Applicants. The Cou rt has disapproved the remainder of the requested nighttime hours of illum ination, that is, after an hour
after sunset to dawn. This limitation is not a sub stantial burden on Applicants’ religious exercise. The cross remains in place at the size, orientation, dimensions, and color which Applicants believe renders it a Cro ss of Love of Dozulé. They are able to practice their devotion and to pray the Doz ulé prayer in conjunction with the cross. The cross can be observed by travelers in t he context of the chapel during daylight hours, and Applicants are able to illuminat e the cross for an hour commencing at sunset so that it can be observed as illuminated, during the three periods for which they requested its illumination.22

Because the Court concludes that allowing a single hour of early evening illumination of the cross on the requested dates, ra ther than its illumination all night long, does not substantially burden Applicants’ reli gious exercise, it is not necessary to analyze whether the restriction is nevertheless justified by a compelling governmental interest.

Questions 2 and 5 of the Statement of Questions: F ree Exercise of Religion
The Free Exercise Clause of the First Amendment to the U.S. Constitution “guarantees the freedom to hold religious beliefs a nd the freedom to act in accordance with those beliefs,” but that freedom may be limited by appropriate regulation. Turner v. Roman Catholic Diocese of Bu rlington, 2009 VT 101, ¶ 27, 186 Vt. 396 (2009) (citing Cantwell v. Connecticut, 310 U.S. 296, 303–04 (1940)). The Vermont Constitution does not offer any more protec tion to the free exercise of religion than does the federal Constitution. See S tate v. DeLaBruere, 154 Vt. 237, 265 (1990). As the Vermont Supreme Court explained in Turner, Laws that are neutral and of general applicability do not violate the Free Exercise Clause. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (“[A] law that i s neutral and of general applicability need not be justified by a co mpelling governmental interest even if the law has the incid ental effect of burdening a particular religious practice.”); Emplo yment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 878-82 (199 0) (stating that, unless the state attempts to regulate religious bel iefs, the communication of religious beliefs, or the raising o f one’s children in those beliefs, the Free Exercise Clause does not bar neutral, generally applicable laws).
2009 VT 101, ¶ 27. In the Summary Judgment Decision, the Court determin ed that Act 250 was a neutral law of general applicability that does not violate the Free Exercise Clause or its Vermont equivalent. In the present case, Act 25 0 has been neutrally applied to23

Applicants’ cross, and has only an incidental effect of burdening their religious practice with respect to the cross. Its regulation is not related to whether it is a religious symbol or structure, but rather is related to the aesthetic effect of the internal illumination of any similarly sized object in that location. The cross is allowed to remain in place and in use by Applicants as a devotion; the location, size, orientation, relative dimensions, and color of the cr oss are approved. Its internal illumination is allowed for one hour a day, beginni ng at sunset, during the three periods requested by Applicants, when its illuminati on will not have an undue adverse effect on the scenic beauty or aesthetics o f the area. As applied, Act 250
does not violate the Free Exercise Clause of the U. S. Constitution or the equivalent
section of the Vermont Constitution.

Questions 2 and 5 of the Statement of Questions: F reedom of Speech The Summary Judgment Decision determined that Act 250 is a contentneutral law and is narrowly tailored to serve the S tate’s interest in protecting the lands and environment of Vermont. The only issue r emaining for decision with respect to the free speech provisions of the state or federal constitutions is whether Act 250, as applied to the cross, leaves open alterna tive channels of communication. Although it appears in their Statement of Questio ns, Applicants did not argue in their memoranda that the regulation of the cross under Act 250 violates Applicants’ freedom of speech. Nevertheless, to the extent that the existence of the
cross in its location and its illumination constitu tes “speech” under the federal or state constitutions, the decision the Court issues t oday allows the visibility of the cross during the daylight hours year round, as well as its illumination for one hour a day, beginning at sunset, during the three periods re quested by Applicants. During the hours of darkness, Applicants can hold events i nside the chapel, including the illumination indoors of the 1/1000 size cross, as al ternative channels of24

communication. As applied to the regulation of the cross by this decision, Act 250
does not violate either the federal or the state co nstitutional protections of Applicants’ freedom of speech.

Accordingly, based on the foregoing, it is hereby OR DERED and ADJUDGED that the cross as installed is approved to remain i n place, and that it is approved to be illuminated at its current or any lesser level o f illumination, for one hour commencing at sunset, 14 during each day of the three periods proposed by Applicants: from Ash Wednesday through Easter Sunda y, during a week in early September commemorating the birth of Mary, and from Advent Sunday (four Sundays before Christmas) through Epiphany (January 6). Because no evidence was presented in the application or at trial providing an objective measurement of the cross’ illumination level, the Court hereby requires Applicants to submit to the District Commission an objective measurement of the cross’ current illumination level and color value to be approved by the Distric t Commission for incorporation into the permit. Applicants shall submit this meas urement no later than June 15, 2012. Thereafter, the Land Use Panel shall direct t he District Commission to perform the ministerial task of issuing Act 250 Lan d Use Permit #7C0600-10-1 consistent with this decision, including the objecti ve measurement of the allowed

14 Local sunset may be determined from the website of the Fairbanks Museum and Planetarium, which gives the time of sunset in Lynd onville on its website at http://www.fairbanksmuseum.org/CurrentConditions.25

illumination level and color value, and incorporati ng any elements of the District Commission decision that were not appealed.

Done at Berlin, Vermont, this 10th day of May, 2012.

_______________________________________________ Merideth Wright Environmental Judge