1 

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Vermont Unit Docket No. 169-12-13 Vtec

Marble Dealership Realty LLC Site Plan 

Approval DECISION ON THE MERITS 

 In this on-the-record appeal, Marble Dealership Realty, LLC (Applicant) challenges the 

60-foot height limitation placed on its proposal to install an 80-foot-tall flagpole at its motor 

vehicle sales business at 800 Putney Road in Brattleboro, Vermont. Prior to the application at 

issue here, the Town of Brattleboro Development Review Board (DRB) permitted substantial 

redevelopment at Applicant’s property, including a new 20- to 25-foot-tall building for 

Applicant’s business.1 On September 24, 2013, Applicant applied for a zoning permit to install 

an 80-foot-tall flagpole for a 600-square-foot American flag at its business. On October 21, 

2013, the DRB held a hearing on the flagpole application and voted to approve it with the 

condition that the flagpole be no more than 60 feet in height. The DRB issued its written 

Decision, including Findings of Fact and Conclusions of Law, on November 12, 2013. Applicant 

filed a timely appeal. 

 Applicant is represented by Sarah Biolsi Vangel, Esq.; the Town of Brattleboro (the 

Town) is represented by Robert M. Fisher, Esq. 

Discussion 

 Applicant argues that the DRB exceeded its authority in restricting the flagpole height 

through its site plan review of the proposed flagpole. Specifically, Applicant argues (1) that the 

flagpole is excluded from the definition of “land development” which requires a zoning permit 

 

1

 The prior redevelopment permit is not before us. The DRB’s November 12, 2013 decision on the flagpole notes 

that on June 13, 2013, the DRB authorized substantial redevelopment (permit #2012-114) and that the permit was 

amended on March 29, 2013 (permit #2013-031). Marble Dealership Realty, LLC, No. 2013-184, Findings of Fact, 

Conclusions of Law, and Decision, at 2 (Town of Brattleboro Dev. Review Bd. Nov. 12, 2013). The permit and/or 

amendment date(s) may be in error; otherwise the amendment date would have been prior to the original permit 

date. In any event, these dates do not impact our decision here. 
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under the Town of Brattleboro Zoning Ordinance; (2) that even if a permit is required for the 

flagpole, site plan approval is not required; and (3) that even if site plan approval is required, 

the DRB’s decision was clearly erroneous, arbitrary, and capricious. (Applicant’s Brief at 5–9, 

filed Apr. 15, 2014.) The Town argues that the DRB properly considered and decided the 

flagpole application under its authority to conduct site plan review for “land development.” 

(Town’s Brief at 8, filed May 16, 2014.) In its review, the DRB “considered the flagpole as an 

element of the landscaping, reviewing the aesthetics of the pole, its architectural compatibility 

and its harmonious relationship to the townscape.” Marble Dealership Realty, LLC, No. 2013-

184, Findings of Fact, Conclusions of Law, and Decision, at 3 (Town of Brattleboro Dev. Review 

Bd. Nov. 12, 2013). Noting that an 80-foot flagpole would be a “significant departure” from the 

existing townscape, the DRB concluded that the flagpole could be “no taller than the maximum 

height permitted for buildings in the district” and conditioned approval of the flagpole on it 

being a maximum of 60 feet tall. Id. 

I. Standard of Review 

 In an on-the-record appeal, we review only the municipal panel’s decision, the record 

made before the municipal panel, and the briefs submitted by the parties. In re Saman ROW 

Approval, No. 176-10-10 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Sept. 2, 2011) (Durkin, J.). 

We do not take new evidence or complete our own determination of the facts. Instead, this 

Court will uphold the DRB’s factual findings if they are supported by substantial evidence in the 

record. See In re Stowe Highlands Resort PUD to PRD Application, 2009 VT 76, ¶ 7, 186 Vt. 568. 

We review the DRB’s legal conclusions without deference unless such conclusions are within 

the DRB’s area of expertise. Id. 

 We interpret a zoning ordinance using the familiar rules of statutory construction. In re 

Appeal of Trahan, 2008 VT 90, ¶ 19, 184 Vt. 262. We will “construe words according to their 

plain and ordinary meaning, giving effect to the whole and every part of the ordinance.” Id. 

Where the plain meaning of the ordinance is clear it must be enforced and no further 

interpretation is necessary. Vermont Alliance of Nonprofit Orgs. v. City of Burlington, 2004 VT 

57, ¶ 6, 177 Vt. 47 (citing Hill v. Conway, 143 Vt. 91, 93 (1983)). 
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II. Review of Proposed Flagpole 

 Applicant’s Statement of Questions asks whether the DRB had the authority to impose 

the height limitation on the flagpole pursuant to various provisions of the Town of Brattleboro 

Zoning Ordinance (BZO). In answering Applicant’s questions, we first consider whether the 

flagpole was subject to the general permitting requirement of the BZO. We then consider the 

DRB’s authority to impose the height limitation through site plan review. 

 Applicant’s property is located in the Commercial District and contains a motor vehicle 

sales business, a permitted use in that district. BZO § 2350(b)(i). The height limitation for 

buildings in the Commercial District is 60 feet.2

 BZO § 2350(d)(i). 

a. Land Development 

Applicant’s Question 2 asks: 

2. Whether installation of a flag pole is “land development” subject to the 

permitting requirements of the Town of Brattleboro Zoning Ordinance?” 

The BZO requires a zoning permit and site plan review and approval for any “Land 

Development” or any change in or extension of the use of any land or structure. BZO §§ 1320, 

1552. “Land Development” is: 

The division of a parcel into two (2) or more parcels; the construction, 

reconstruction, conversion, structural alteration, relocation or enlargement of 

any building or other structure, or of any mining, excavation, or landfill, and any 

change in the use of any building or structure or land, or extension of use of 

land. 

BZO § 6100 (emphasis added). 

 

2

 We note that the BZO’s provisions for height limitations use inconsistent terminology, arguably requiring differing 

applications to buildings, structures, or other items, depending on the applicable height provision for the district at 

issue. In the Commercial District, for example, the height limitation expressly applies to buildings only, whereas 

the height limitation provision for the Urban Center District provides: 

Building Height 

(a) The maximum height of any new structure in this district is sixty (60) feet. 

(b) The minimum height of any new building in this district shall be as follows . . . 

BZO § 2348(d)(i) (emphasis added). 

The provision for “exceptions to height limitations” provides that “[u]nless this Bylaw specifically provides to the 

contrary, limitations on permissible heights of structures shall not apply to [an enumerated list of items]. BZO § 

4170. Because we conclude that the flagpole is neither a “building” nor a “structure,” our analysis is the same 

whether the Commercial District height limitation was meant to apply to structures generally or only to buildings. 
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 We first note that the definition of “structure” specifically excludes “retaining walls, 

fences, poles and lamp posts . . . .” BZO § 6100 (emphasis added). Because a flagpole is a type 

of pole, it is not a structure under the BZO’s definition. A building is a structure with a roof that

is intended for shelter; the flagpole is therefore not a building. BZO § 6100. 

 We also note that shortly before Applicant’s flagpole application, the DRB approved 

building reconstruction at Applicant’s property for its continued use as a motor vehicle sales 

business. Applicant’s proposed flagpole is part of its motor vehicle sales use and does not 

enlarge the size of Applicant’s building or its business operation. We therefore conclude that 

the proposed flagpole is not a change in or extension of Applicant’s permitted motor vehicle 

sales use. 

 The Town argues that because the flagpole must be placed approximately eight feet 

deep in the ground, along with nine to ten yards of cement to stabilize it, the flagpole 

installation is “excavation” and “landfill” falling under the “land development” permit 

requirement of the BZO. (Town’s Brief at 8, filed May 16, 2014.) “Landfill” is defined as “[a]n 

area where solid waste is disposed of in a controlled, managed manner; the filling of an area 

with clean fill or other suitable materials.” BZO § 6100. The placement of a flagpole in the 

ground with an adequate concrete footing is therefore not “landfill.” While the BZO does not 

define “excavation,” it defines “Excavation/Quarry” as “[t]he activity and location of extraction 

of soil, sand, or other materials . . . [which] usually involve heavy equipment and may cause 

high levels of noise and dust.” BZO § 6100 (emphasis added). The BZO also provides specific 

standards for “Excavation/Quarry,” requiring the DRB to make positive findings on 10 criteria 

prior to issuance of a permit for “the removal of stone, sand or gravel from banks or quarries 

and the processing of said materials.” BZO § 5120. The DRB made no findings or conclusions 

regarding any “excavation” or “landfill” associated with the proposed flagpole.3 Although the 

flagpole will require an adequate in-ground footing, we conclude on the limited evidence in the 

 

3

 Decisions afforded on-the-record review must include complete findings of fact in order “to make a clear 

statement to the parties and the court in the event of an appeal on what was decided and how the decision was 

reached.” In re Appeal of Leikert, No. 2004-213, slip op. at 1–2 (Vt. Nov. 2004 term) (unpublished mem.), available 

at https://www.vermontjudiciary.org/UPEO2001-2005/eo04-213.pdf (discussing the important functions served by 

findings of fact). This Court has been cautioned against “fill[ing] in the gaps” left by incomplete decisions. Id. at 2. 
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record4 that the digging and filling for this footing does not fit the plain meaning of 

“excavation” or “landfill” as used in the “Land Development” definition. 

 Because the proposed flagpole is neither a structure, nor excavation, nor landfill, nor a 

change in or extension of use, we conclude that the proposed flagpole is not “land 

development” or a change in the use of land requiring a zoning permit under BZO § 1320. 

 As discussed below, however, a proposed item that is not itself “land development” may 

be considered as an element of a proposed site plan. Thus, we next consider the flagpole under 

the BZO’s site plan review provisions. 

 b. Site Plan Review

Several of Applicant’s questions, taken together, ask whether the DRB had authority to 

consider the flagpole under site plan review and, if so, whether the DRB appropriately 

considered and conditioned the height of the flagpole as part of its site plan approval. 

The Site Plan Review Bylaw (bylaw) within the BZO provides: 

Application. Prior to issuance of a zoning permit for any land development, such 

proposed land development shall receive site plan review and approval as set 

forth herein, unless specifically exempted under Section 1553, below. Any 

proposal to eliminate, create new or alter existing structures, parking, 

circulation, landscaping, lighting, drainage, screening, or any other site plan 

element or standard, shall be subject to site plan review and approval. 

BZO § 1552 (emphasis added). The flagpole is a “site plan element” that should have been 

considered as an amendment to Applicant’s site plan approval for redevelopment. Indeed, the 

site plan submission requirements are quite broad, including “[i]dentification of all work to be 

done, including detailed changes that are proposed to the physical features of the site or 

existing structures.” See BZO § 1556(a)(9), (b)(2) (setting forth submission requirements for 

minor and major site plan review). Thus, we consider whether the DRB had authority to 

regulate the height of the flagpole in considering the flagpole as an amendment to Applicant’s 

site plan for the redevelopment. 

 The purpose of site plan review is to “protect the health, safety, convenience and general 

welfare of the inhabitants of the Town.” BZO § 1551. The bylaw “regulates the development of 

 

4

 The application before the DRB included a diagram depicting an 80-foot-tall flag with an in-ground footing 

approximately eight feet deep and six feet wide. (Exhibit 1 at 3.) 
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structures and sites in a manner which considers the following concerns and, where necessary, 

requires modification of development proposals to eliminate or minimize potential problems 

and nuisances.” Id. The “principal areas of concern,” as may be applicable here, include: 

 a. The balancing of landowners’ rights to use their land, with the corresponding 

rights of abutting and neighboring landowners to live without undue 

disturbances (e.g. noise, smoke, fumes, dust, odor, glare, stormwater runoff, 

etc.); 

 b. . . . 

 c. . . . 

 d. The protection of historic and natural environmental features on the site 

under review, and in adjacent areas. 

Id. 

 Under the Site Plan Standards for Review, “the Board shall take into consideration, and 

may impose appropriate conditions and safeguards with respect to [a list of criteria].” BZO § 

1557. The criteria are broken up into four categories: (a) traffic and pedestrian access; (b) 

circulation and parking; (c) landscaping and screening; and (d) protection of the utilization of 

renewable energy resources. Id. Subsection (c), the landscaping and screening category, directs 

the DRB to consider: 

 3. The building setbacks, area and location of parking, architectural 

compatibility, signage, and landscaping of the development, and how these 

features harmonize with the surrounding townscape and natural landscape. 

 5. Proper design for drainage, fire protection, outdoor lighting, aesthetics, and 

similar site factors that are related to the above aspects of landscaping and 

screening. 

BZO § 1557(c). 

 The DRB made findings of fact related to subsection (c). Specifically, the DRB found that 

“[t]he proposal will impact lighting, landscaping and how the property harmonizes with the 

surrounding townscape.” Marble Dealership Realty, LLC, No. 2013-184, Findings of Fact, 

Conclusions of Law, and Decision, at 2 (Town of Brattleboro Dev. Review Bd. Nov. 12, 2013). 

While this statement rests in part on evidence in the record, it also incorporates an 

interpretation of the Site Plan Standards for Review, which, along with other legal conclusions, 

we review without deference. See Stowe Highlands Resort PUD to PRD Application, 2009 VT 

76, ¶ 7, 186 Vt. 568. 
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 We read the requirements of subsection (c) to address the adequacy and design of 

landscaping, such as existing and proposed trees and other vegetation, as well as design aspects 

related to such landscaping, including drainage and lighting. Although the BZO does not define 

“landscaping,” we conclude that the proposed flagpole does not fit the ordinary meaning and 

use of “landscaping.” The BZO expressly addresses landscaping-related elements, such as 

drainage and lighting5

, but it makes no mention of other items to be placed on a site, such as 

flagpoles or other decorative items. 

 The BZO’s General Standards support this interpretation. Within the General Standards, 

the purpose section of “Landscaping and Screening; Drainage and Lighting” states, 

“[l]andscaping can play a major role in the reduction of noise, glare and other nuisances from 

one use to another.” BZO § 4310. The section further states, “[l]andscaping, as referred to in 

this Bylaw, shall include provisions for adequate on-site and off-site drainage, as well as lighting 

of the entire site and its structures.” Id. The General Standards for landscaping include 

requirements for vegetative plantings, fences, berms, screening of service areas, drainage, and 

lighting. BZO §§ 4340–4350. In viewing the BZO as a whole, we conclude that the proposed 

flagpole, though likely to be a prominent feature of Applicant’s property, will not itself be an 

element of landscaping such as those items discussed in the General Standards. 

 Moreover, we find no ground for a height limitation among any of the considerations 

outlined for landscaping in site plan review or the other site plan review criteria (traffic and 

pedestrian access, circulation and parking, and protection of the utilization of renewable energy 

resources). While the DRB has authority to review and impose conditions related to Applicant’s 

landscaping, screening, and setbacks, such as requiring plantings of a certain height or in certain 

locations, the site plan review bylaw makes no reference to limiting the height of other 

proposed items at the site. Other than the 60-foot height limitation for buildings in the 

Commercial District, we find no applicable height limitations in the Site Plan Review bylaw or 

any other provisions of the BZO. 

 Therefore, considering the flagpole as an amendment to Applicant’s site plan for 

redevelopment, we find no authority for imposing the 60-foot height restriction. 

 

5

 The Court notes that the DRB also addressed the lighting component of the flagpole proposal. The parties do not 

appear to dispute the issue of lighting, and we therefore do not address it here. 
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Conclusion

 For the reasons stated above, we conclude that the flagpole is not “land development.” 

Assuming that the flagpole may be considered as a site plan element subject to review, we also 

conclude that the flagpole does not fit the common meaning of landscaping or the meaning of 

landscaping within the BZO. We therefore ultimately conclude that neither the Site Plan 

Review Bylaw nor any other part of the BZO provides the DRB with authority to impose the 60-

foot height limitation on the flagpole.6

 

 Accordingly, condition number 4 of the DRB’s November 12, 2013 decision limiting the 

height of the flagpole to 60 feet is STRICKEN. 

A judgment order accompanies this decision. This completes the current proceedings 

before this Court. 

Electronically signed on August 13, 2014 at 10:51 AM pursuant to V.R.E.F. 7(d). 

_________________________________________ 

Thomas G. Walsh, Judge 

Superior Court, Environmental Division 

 

6

 We do not suggest that the Town is prohibited from regulating the height flagpoles such as the one proposed; 

rather, we conclude that the BZO, as written, does not provide the DRB authority to impose the height limitation at 

issue.