Secretary, Vermont Agency of Natural Resources v. Handy Family Enterprises

• Decision Date: 14 April 1995
• Docket Number: No. 93-367,93-367
• Citation: 660 A.2d 309,163 Vt. 476
• Court: Vermont Supreme Court
• Parties: SECRETARY, VERMONT AGENCY OF NATURAL RESOURCES v. HANDY FAMILY ENTERPRISES and Taft Corners Associates, Inc.

Page 309

660 A.2d 309

163 Vt. 476

SECRETARY, VERMONT AGENCY OF NATURAL RESOURCES v. HANDY FAMILY ENTERPRISES and Taft Corners Associates, Inc.

No. 93-367.

Supreme Court of Vermont.

April 14, 1995.

Christine Melicharek, Waterbury, for plaintiff-appellant.

Carl H. Lisman of Lisman & Lisman, P.C., Burlington, for defendant-appellee Handy Family Enterprises.

Robert F. O'Neill of Gravel and Shea, Burlington, for defendant-appellee Taft Corners Assocs.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

The Secretary of the Agency of Natural Resources (Secretary) appeals a decision of the Environmental Law Division (ELD) assessing penalties against Handy Family Enterprises (HFE) and Taft Corners Associates, Inc. (TCA) for violations of their Act 250 land use permits. The Secretary challenges the ELD's calculation of penalties, its conclusion that the permit violations caused only slight environmental harm, and its finding that the violations did not predate May 17, 1991. HFE cross-appeals, claiming that the ELD incorrectly imposed penalties for HFE's use of temporary banners and its failure to remove light fixtures prohibited by the permits. HFE also claims the penalty amount is unsupported by the record. TCA, also a cross-appellant, challenges the ELD's calculation and imposition of penalties against TCA and HFE jointly, as though they were a single entity, rather than considering TCA separately. We reverse the ELD's determination imposing penalties for the placement of banners prior to October 8 1991, reverse and remand the calculation of remaining penalties, and affirm the conclusion that the violations caused only slight environmental harm.

TCA owns a thirty-seven lot industrial park located in Williston. HFE is under affiliated ownership with Seven Maples Corporation, which owns and operates the Ponderosa Restaurant on Lot 30 of the TCA industrial park. Under the operating arrangement between HFE and Seven Maples, permits for Lot 30 are in the name of HFE. On April 27, 1990, HFE and TCA applied for an Act 250 land use permit, 10 V.S.A. § 6081, to allow the construction and operation of the restaurant. Included in the permit application was a plan to install signs for the restaurant. In August 1990, the District 4 Commission issued HFE and TCA Land Use Permit 4C0696-9 (the 9 permit) approving the construction and operation of the restaurant, but it did not approve the parties' proposal for four internally illuminated signs previously sanctioned by the Williston Planning Commission. Condition 23 of the 9 permit required the applicants to obtain written approval from the District 4 Commission for an alternative sign plan prior to the installation of any exterior signs. The parties did not appeal the 9 permit.

HFE and TCA thereafter discussed the restaurant signs with the Williston Planning Commission. The Planning Commission wrote the District 4 Commission, stating that it favored internally illuminated signs over other types of signs. On December 27, 1990, HFE and TCA applied to the District Commission for a permit amendment to allow four internally illuminated signs.

On February 4, 1991, the District 4 Commission issued an amended permit (the 9A permit) approving two internally illuminated awning signs and a freestanding parking lot directional sign. Condition 7 of the 9A permit stated "the installation of signs are limited to those approved," and condition 8 stated "any other signage or change to the signage herein approved is strictly prohibited" without prior written approval from the District 4 Commission.

HFE placed two banners (banners 1 and 2) on the restaurant's exterior on February 27, 1991. Both banners were two feet by ten feet in size, and read "Ponderosa Steak House Now Open." Banner 1 remained on the restaurant for eleven months.

HFE placed two additional banners (banners 3 and 4) on the building on May 1, 1991. Banner 3 was two feet by twenty feet, with lettering stating "Sirloin Tips Special $5.99" and "U.S.D.A. Choice." Banner 3 was displayed on the building on May 15 and 20, June 17 and July 5, 1991. Banner 4, which remained on the building for twenty days, was two feet by thirty feet, and advertised "3 Super Sandwich Specials $3.99, includes fries and beverage--lunch only."

On May 15, 1991, the District Coordinator informed HFE and TCA that the Commission believed the banners violated the 9A permit. HFE and TCA immediately requested written approval from the Commission for the banners. The Commission denied the request on May 16, informing HFE and TCA that they should submit their request in the form of a permit amendment application. Neither HFE nor TCA submitted an amendment application.

On May 20, 1991, the District Coordinator issued a Notice of Alleged Violation to HFE and TCA. The notice stated that the restaurant's banners violated both the 9 and the 9A permits. Nevertheless, HFE installed banner 5 on May 25, 1991. Banner 5 was similar in size to banner 3 and stated, "New Charbroiled Chicken Dinners $6.99." Banner 5 remained on the building for approximately forty days.

In July 1991, HFE and TCA filed a permit amendment application requesting approval for an internally illuminated, building-mounted sign. On October 8, 1991, the District 4 Commission issued a permit approving the installation of an internally illuminated, building-mounted sign (the 9B permit), and requiring HFE to remove interior light fixtures that hung above the dining tables immediately adjacent to the first-floor windows. This permit prohibited the installation of any "temporary signs, banners, posters, or flags ... without the prior written approval of the District Commission"; HFE did not remove the banners, however, nor did TCA take any action to have the banners removed, following the issuance of the 9B permit.

On December 10, 1991, the installation of the internally illuminated, building-mounted sign was completed. On February 24, 1992, HFE placed banner 6 on the exterior of the building. Banner 6 was similar in size and location to banner 5 and stated, "New! New York Strip, Porterhouse, Filet Mignon--So good they're guaranteed!" Banner 6 remained on the building until March 3, 1992.

In March 1992, the Secretary issued an administrative order pursuant to 10 V.S.A. § 8008, requiring the parties to remove all signs not allowed by the 9A permit and assessing a penalty of $25,000. HFE and TCA requested a hearing before the ELD, as authorized by 10 V.S.A. § 8012(a).

Following a hearing, the ELD issued findings, conclusions and an order on June 13, 1993. In considering the banners, it decided to look at three separate periods. During the last period, between the time the 9B permit was issued (October 9, 1991) and the time the last banner was removed (March 3, 1992), the ELD concluded there was a clear violation of condition 8 of the 9B permit. As to the second period, from the date the District Commission denied permission to put up the banners (May 17, 1991) to the date of issuance of the 9B permit (October 9, 1991), the ELD concluded HFE and TCA violated the permit conditions because they kept the banners up knowing of the District Commission's permit interpretation. As to the first period, from the date the first banner was placed on the building (February 27, 1991) to the date of the District Commission denial of permission to put up the banners (May 17, 1991), the ELD found no permit condition violation because the permits "did not specifically address temporary banners" and other businesses covered by TCA's umbrella permit were using "temporary banners and flags without apparent challenge." The ELD imposed penalties against HFE and TCA, jointly and severally, for the second and third periods, as well as for failure to remove the interior light fixtures as required by the 9B permit, in the amount of $14,463. This appeal followed.

I.

All parties contest the ELD's decision to treat the first and second periods differently. The Secretary argues that notification by the District Coordinator does not trigger a violation of the permit and that, if there was a violation during the second period, there also had to be a violation during the first period. HFE and TCA agree with the first part of the Secretary's argument but claim that if there was no violation for the first period, there could not have been one for the second period.

Before we address the specific arguments, we must first consider the principles controlling our construction of permit conditions and the standard of review. We see no reason to depart from normal statutory construction techniques in interpreting permit conditions. We strive to implement the intent of the draftspersons. See Conn v. Middlebury Union High School, 162 Vt. 498, ----, 648 A.2d 1385, 1387 (1994). Ordinarily, we rely on the plain meaning of words because we presume they show the underlying intent. See id.

Some principles are specifically related to the task before us. We have held with respect to Act 250 that "in construing land use regulations any uncertainty must be decided in favor of the property owner." In re Vitale, 151 Vt. 580, 584, 563 A.2d 613, 616 (1989); see also Committee to Save the Bishop's House, Inc. v. Medical Center Hosp. of Vt., 137 Vt. 142, 152, 400 A.2d 1015, 1020 (1979). These holdings are based on our zoning decisions that have emphasized that ambiguity must be resolved for the property owner. See Murphy Motor Sales, Inc. v. First Nat'l Bank, 122 Vt. 121, 123-24, 165 A.2d 341, 342-43 (1960). We have also held that zoning permit conditions "must be expressed with sufficient clarity to give notice of the limitations on the use of the land." In re Farrell & Desautels, Inc., 135 Vt. 614, 617, 383 A.2d 619, 621 (1978); see also In re Kostenblatt, 161 Vt. 292, 299, 640 A.2d 39, 44 (1994) (reaffirming In re Farrell & Desautels, Inc.); In re Robinson, 156 Vt. 199, 202, 591 A.2d 61, 62 (1991) (conditions...