STATE OF VERMONT

ENVIRONMENTAL COURT

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Appeal of TCSC, LLC } Docket No. 177-10-04 Vtec

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Decision and Order on Cross-Motions for Summary Judgment

 Appellant TCSC, LLC appeals from the decision of the Town of Williston Development 

Review Board (DRB) that upheld an alleged notice of violation issued on June 21, 2004 by the 

Town’s Zoning Administrator for Appellant’s property at 11 Taft Corners Shopping Center. The 

formal notice of violation charges that “a series of new lighting fixtures have been installed 

under the canopy along frontage of the Taft Corners Shopping Center without [DRB] approval.”

Appellant is represented by Eric M. Knudsen, Esq.; the Town is represented by Paul S. Gillies, 

Esq.

 Both parties have filed motions for summary judgment on all the issues raised by 

Appellant’s Statement of Questions, stated in their entirety below:

(a) Did the replacement of lighting fixtures of a different design under the canopy of the 

Taft Corners Shopping Center constitute “development” under the Zoning Ordinance 

(Ordinance);

(b) Did the replacement of lighting fixtures of a different design under the canopy of the 

Taft Corners Shopping Center require DRB approval under the conditions of the permit 

for the “Ninety-Nine Restaurant and Pub”; and

(c) Did lighting fixture replacement of a different design without a permit violate the 

Ordinance?

All of these questions are addressed in this Decision.

Factual Background

 The following material facts are undisputed unless otherwise noted:

 1. Appellant is the owner of a shopping center, known as Taft Corners Shopping 

Center, at the intersection of U.S. Routes 2 & Vermont Route 2A that provides a mix of retail, 

service, and restaurant uses, including the “Ninety-Nine Restaurant and Pub” (Ninety-Nine), 

which is the portion of the property at issue in this appeal. The Taft Corners Shopping Center is 
in the Taft Corners zoning district, Ordinance § 2.3.8, and is subject to design review pursuant to 

Ordinance § 4.21.

 2. A roof canopy covers the walkway in front of all leased premises in the shopping 

center, including the Ninety-Nine. Appellant’s Statement of Undisputed Facts, Ex. A, E.

 3. The Ninety-Nine facade and walkway are lit by overhead pendant light fixtures 

that hang from underneath the roof canopy. These light fixtures were originally Trimblehouse 

175-watt metal halide fixtures, that resemble a white sphere hanging from a wire. Those fixtures 

were installed in 1985. Appellant maintains that these fixtures had deteriorated to the point that 

they were falling from the canopy onto the walkway, thus posing a risk of injury to Appellant’s 

and the Ninety-Nine’s patrons. See Appellant’s Statement of Undisputed Facts, at 1; Judge 

Affidavit ¶ 6.

4. Sometime in December of 2003, Appellant replaced the Trimblehouse fixtures 

with 70-watt metal halide pendant fixtures manufactured by Abolite, which have a cylindrical 

bulb, the top half of which is covered by a bell-shaped shield. Appellant’s Statement of 

Undisputed Facts, Ex. B, C, D.

 5. The lighting fixtures (both old and new) cannot be seen from outside of the 

shopping center; they are only visible from beneath the roof canopy. The Court understands that 

the illumination from the fixtures (both old and new) can be seen at night from outside of the 

roof canopy.

 6. On July 22, 2003, the DRB issued a zoning permit approving the conversion of 

Appellant’s property for lease as a Ninety-Nine restaurant. The DRB determined that while no 

site plan was needed, the Design Advisory Committee had to review the proposed changes 

pursuant to § 4.21 of the Zoning Ordinance because the property was in the Taft Corners Design 

Review Overlay zoning district (Taft Corners District).

7. In accordance with the Committee’s recommendations, the DRB included a 

condition in its zoning permit approval that stated, “3.) No new lighting fixtures are to be 

installed over the awnings under the canopy without prior approval by the Town. The existing 

fixtures may be repaired or replaced with identical fixtures.” A subsequent condition stated, “6.)

No substantial or material changes shall be made in the project without the prior issuance of a 

permit amendment from the [DRB]. The Zoning Administrator may approve in writing minor, 
insubstantial changes to the project.” See Attach. to the Town’s Cross Mot. for Summ. J., Ex. A, 

at 17.

8. The zoning permit for the Ninety-Nine, issued on August 13, 2003, did not list the 

DRB’s conditions of approval from its July 22, 2003 meeting; however, the permit does state 

that, “The applicant is responsible for meeting all conditions in this permit and in the DRB 

approval dated 7/22/03.” See Attach. to Appellant’s Resp. to the Town of Williston’s Mot for 

Summ. J., Ex. B, at 2. The application for the zoning/building permit was hand-written and lists 

the “Applicant/Lessee” as “Ninety-Nine Restaurant + Pub,” while Appellant is listed as the 

“Owner.” Id. at 1.

9. On June 21, 2004, the Zoning Administrator mailed a “formal notice of a zoning 

violation” letter to Appellant for “[u]npermitted outdoor lighting,” citing Ordinance § 4.16.2.

See (Letter from Scott Gustin to Peter Judge of 6/21/04, at 1).

10. Ordinance § 4.16.2(A) states: “No outdoor lighting fixtures may be installed in 

the . . . TC [Taft Corners] . . . District[] without first obtaining approval from the [DRB].”

Ordinance § 4.16.2.

11. A requirement of the Taft Corners District―Section 4.21.3(A)(6)(a)―states that 

“Outdoor lighting should comply with the standards set forth in Sub-Section 4.16 of the 

[Ordinance],” which requires DRB approval for outdoor lighting.

12. Lastly, because only a zoning permit was required for the Ninety-Nine when it 

was approved by the DRB, Ordinance § 4.21.8 requires any design review recommendations to 

be incorporated “into the conditions of approval for the zoning permit.”

Discussion

In this appeal from a formal notice of violation, Appellant alleges that DRB approval is 

unnecessary to replace the lighting fixtures under the roof canopy because the replacement is a 

“normal redecoration, maintenance or repair[],” which is excluded from the definition of 

“development,” for which a permit is required. Ordinance § 6.2.23. The Ordinance provides 

that “No land development may be commenced . . . without a zoning permit being issued by the 

Zoning Administrator.” Ordinance § 5.3.1.

If the Ordinance were devoid of requirements for outdoor lighting in the Taft Corners 

District, then Appellant’s argument may have merit. However, because the Ordinance contains 

provisions specifically applicable to the installation of outdoor lighting in that District, we do not 
need to address whether the replacement of outdoor lighting constitutes “development” or 

“normal redecoration, maintenance, or repair.” “Zoning ordinances are construed according to 

the general principals of statutory construction,” In re Weeks, 167 Vt. 551, 554 (1998). Our 

Supreme Court has directed that when “construing conflicting statutes that deal with the same 

subject matter, the more specific provision controls over the more general one,” Stevenson v. 

Capital Fire Mut. Aid Sys., 163 Vt. 623, 625 (1995) (citing State v. Jarvis, 146 Vt. 636, 638 

(1986)). We therefore find that a permit is required under § 4.16.2 when new and not “identical” 

outdoor lighting fixtures are installed under the roof canopy of Appellant’s shopping center in 

front of the Ninety-Nine.

Furthermore, this appeal does not involve uncertainty in construing the zoning ordinance, 

so there is no need to advance the construction of the regulations urged by the landowner. The 

regulations are clear that § 4.16.2 requires DRB approval for the installation of outdoor lighting 

fixtures in the Taft Corners District.

In addition to the approval required by § 4.16.2, the Ordinance’s provisions relating to 

the Taft Corners District also require any outdoor lighting to comply with § 4.16, including DRB 

approval of outdoor lighting fixtures. Thus, because we apply the more specific provision of the 

Ordinance relating to outdoor lighting over the broader provision relating to “development” 

generally, we find that Appellant violated the Ordinance by not first obtaining DRB approval to 

install new outdoor lighting fixtures in front of the Ninety-Nine.

Appellant, the property’s owner, also argues that the requirements of the Ninety-Nine’s 

building/zoning permit and its conditions of approval are inapplicable, as they only apply to the 

permit’s “Applicant,” who is listed as “Ninety Nine Restaurant + Pub.” See Attach. to 

Appellant’s Resp. to the Town of Williston’s Mot for Summ. J., Ex. B, at 1. Appellant relies on 

a single sentence in the last paragraph of the permit to argue that the DRB’s conditions of 

approval do not apply to the landowner. The permit states, “The applicant is responsible for 

meeting all conditions in this permit and in the DRB approval dated 7/22/03.” Id. at 2 (emphasis 

added).

“In construing permit conditions, we rely upon the normal rules of statutory 

construction.” Agency of Natural Res. v. Weston, 2003 VT 58, ¶ 16 (citing Sec’y, Vt. Agency of 

Natural Res. v. Handy Family Enters., 163 Vt. 476, 481 (1995)). “Ordinarily, we do so by 
accepting the plain meaning of the words because we presume that they express the underlying 

intent.” Id.

First and foremost, the zoning permit issued for the Ninety-Nine (#BP-04-56) states, 

“The undersigned applies for permission to make certain building and/or site improvements as 

described below.” The permit application is signed by Peter Judge, the President of Judge 

Development Corp., which is a member of Appellant limited liability company. The permit 

application is not signed by a representative of the “Lessee,” Ninety-Nine. See Attach. to 

Appellant’s Resp. to the Town of Williston’s Mot. for Summ. J., Ex. B, at 1; Judge Aff. at ¶ 1, 

2. Although Appellant is listed as “Owner” on the permit, its agent―Mr. Judge―filled out and 

submitted the permit application. Therefore, Appellant must also be considered an applicant for 

the zoning permit. Furthermore, the DRB treated Appellant as the applicant, as evidenced by the 

DRB’s uncontested and unappealed decision on July 22, 2003, which states that the application 

was filed “by TCSC and 99 Restaurant & Pub to renovate a portion of the exiting [sic] TCSC 

shopping center . . . .” See Attach. to the Town’s Cross-Mot. for Summ. J., at 16 (July 22, 2003).

Appellant was therefore an applicant in this proceeding and is bound by the DRB’s 

conditions, issued on July 22, 2003. One such condition requires that “[n]o new lighting 

fixtures . . . be installed over the awnings under the canopy without prior approval by the 

Town.” Id. at 17, ¶ 3. Appellant could have repaired or replaced the Trimblehouse fixtures with 

identical fixtures without approval from the DRB. However, Appellant’s choice to install new, 

non-identical fixtures necessitated prior review by the DRB, which the Applicant did not seek or 

obtain. Therefore, the formal notice of violation was proper.

Accordingly, based on the foregoing, it is hereby ordered and adjudged that Appellant’s 

motion for summary judgment is DENIED, and the Town’s motion for summary judgment is 

GRANTED, concluding this appeal.

Done at Berlin, Vermont, this 1st day of July, 2005

 

Thomas S. Durkin, Environmental Judge