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## S TATE OF 

## V ERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION Vermont Unit Docket No. 126-9-13 Vtec

Mt. Mansfield UHS Event Board Permit 

### DECISION ON MOTION

**Decision on Motion for Summary Judgment** On May 30, 2013, the Town of Jericho Zoning Admini strator (ZA) issued permit #BT211x to the Mount Mansfield Union High School (MMUHS) al lowing MMUHS to replace an existing message board with a LED (light emitting diode) eve nt board sign. The ZA concluded that under 24 V.S.A. § 4413 and the provisions in the Jericho Land Use and Development Regulations (the Regulations) incorporating § 4413, the Town of Jeri cho (the Town) had no authority to regulate the sign. Richard Kemmer (Appellant), who owns and occupies property across the street from the proposed sign, appealed that decision to the To wn of Jericho Development Review Board (DRB). The DRB agreed with the determination of th e ZA and upheld the permit on the grounds that the application to replace the sign was exempt from the requirements of the Regulations because of § 4413. Appellant appeals the DRB decis ion and moves for summary judgment that as a matter of law the DRB erred in determining tha t the LED sign application was exempt from municipal regulation. In his motion, Appellant ask s the Court to remand the application to the DRB. Appellant is self-represented in this appeal, the Town has designated Jennifer Murray, the Town of Jericho Planning and Development Coordinato r, as its representative, and MMUHS has designated Michael Weston, MMUHS Principal, as its representative. The Court will grant summary judgment where the mov ant (here, Appellant) shows that “there is no genuine dispute as to any material fac t and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a); V.R.E.C.P. 5(a)(2) . The Court is directed to “accept as true the [factual] allegations made in opposition to the mot ion for summary judgment,” as long as they are supported by admissible evidentiary material, a nd to give the non-moving party (here, the Town) the benefit of all reasonable doubts and infe rences. Robertson v. Mylan Labs., Inc., 20042

VT 15, ¶ 15, 176 Vt. 356; see V.R.C.P. 56(c). The issue before us is purely legal: whether the Town of Jericho is without the authority to regulat e an LED event board at MMUHS based on 24

V.S.A. § 4413. Title 24 Section 4413(a) provides that municipaliti es may regulate “State- or communityowned and operated institutions and facilities” and “public and private schools and other educational institutions certified by the state dep artment of education” only with respect to enumerated issues and “only to the extent that regu lations do not have the effect of interfering

with the intended functional use.” Those enumerate d regulable issues are: “location, size, height, building bulk, yards, courts, setbacks, den sity of buildings, off-street parking, loading facilities, traffic, noise, lighting, landscaping, and screening requirements.” 24 V.S.A. § 4413(a). Appellant contends in his motion for summary judgme nt that the replacement of a nonilluminated event board with a LED message board mu st comply with any of the Regulations related to lighting because, contrary to the DRB’s holding, the municipality does have authority to regulate development at MMUHS with regard to lig hting. We agree. Section 4413 does not exempt development at a community-owned and operate d facility or a public school from all municipal regulation; rather, it limits the scope o f that regulation to a list of enumerated topics. Thus, the DRB must find that an application for dev elopment complies with those regulations for which review is not limited by § 4413. Under § 4413, the Town can also regulate the size and height of the sign, and any landscaping require ments related to the new sign. For these reasons, we agree with Appellant that the DRB incor rectly found that the application should be granted because it is exempt from all municipal reg ulation. We therefore **GRANT** Appellant’s motion for summary judgment. Appellant asks that the Court remand the matter to the DRB to conduct the necessary review. The DRB did not, in its written findings o f fact and decision, make any findings relative to whether the proposed sign complies with any of t he Regulations. Rule 1 of the Vermont Rules for Environmental Court Proceedings requires that our rules “be construed and administered to ensure summary and expedited procee dings consistent with a full and fair determination in every matter coming before the cou rt.” The Court is thus concerned about remanding this matter for further consideration by the DRB given the possibility that this appeal3

may come before the Court again after the DRB’s det ermination is made. Nonetheless, given that the DRB did not consider the merits of the app lication and Appellant specifically requests such consideration, we conclude that we must remand this matter to the DRB so that it can decide the question of whether the application for the proposed LED event board sign complies with any applicable regulations. We, therefore, **REMAND** this matter to the Town of Jericho Development Review Board for consideration of wheth er the proposed replacement of the

current event board at MMUHS with a LED event board complies with any applicable municipal regulations related to size, height, lighting, land scaping, or any other topic enumerated in

§ 4413. This concludes the pending appeal before the Court.

Electronically signed on April 29, 2014 at 03:45 PM pursuant to V.R.E.F. 7(d).

_________________________________________ Thomas G. Walsh, Judge Superior Court, Environmental Division