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nbsp; STATE
OF VERMONT
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ENVIRONMENTAL
COURT
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Appe=
al of
Wesco, Inc. &=
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(Warning=
Notice
re: Sign Ordinance Violation) =
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Docket
No: 208-10-05 Vtec
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nbsp; Decision
and Order on Cross-Motions for Summary Judgment
Appellant Wesco, Inc., filed an appeal in this Court fr=
om a
decision of the Development Review Board (DRB) of the City of South Burlin=
gton,
taken under the City=3Ds Sign Ordinance.
Appellant is represented by Marc B. Heath, Esq., and William E.
Simendinger, Esq.; the City is represented by Amanda S.E. Lafferty, Esq.
The City of South Burlington adopted a Sign Ordinance u=
nder
24 V.S.A. Chapter 59 and '2291, not as a zoning ordinance under 24 V.S.A. Chapter=
117,
and repealed any inconsistent zoning ordinances. The Sign Ordinance was adopted ef=
fective
June 3, 2002, and amended on=
April
8, 2003, and March 8, 2005. =
Section
24 of the Sign Ordinance pertains to Non-Conforming Signs.
On December 5, 2003, under the City=3Ds Land Development Regulations, the Development Review =
Board
(DRB) approved a site plan for 1118 Williston Road, which showed a
free-standing sign in a location in which such a sign had existed for many
years.
On September 2, 2004, the Issuing Municipal Official un=
der
the Sign Ordinance, who is also the Zoning Administrator, issued a sign pe=
rmit
allowing replacement of the previously existing sign. Evidence as to the course of deal=
ings
between Appellant=3Ds representatives and City officials regarding the issu=
ance
of the sign permit is not relevant in the present appeal, although it may
relate to any estoppel argument made in any subsequent appeal or action.
On July 15, 2005, the Code Enforcement Officer (the same
individual
Appellant filed an appeal of the Warning Notice with the
Development Review Board, which is the body designated under the Sign Ordi=
nance
to hear municipal appeals under that ordinance. In the present action Appellant s=
ought
to appeal to this Court the DRB=3Ds denial of its appeal under the Sign Ordinance.
Appeals of actions of municipal officials or boards tak=
en
under ordinances adopted under 24 V.S.A. Chapter 59, if appealable, must be
filed in Superior Court under V.R.C.P. 75 (or 74). They are not appealable to this C=
ourt
unless they are taken under 24 V.S.A. Chapter 117 or Chapter 61, subchapter
12. 4 V.S.A. '1001(b). =
This is
the case despite the fact that a single individual may carry out municipal
responsibilities under both ordinances, or, indeed, despite the fact that a
single municipal panel, the DRB, is the municipal appeals board under both
ordinances. Accordingly, the=
City=3Ds Motion for Summary Judgment must be granted and this
appeal must be dismissed in this Court, without prejudice to any filings t=
hat
may be made in Superior Court.
Nevertheless, if 24 V.S.A. '4472 acts=
as a
bar to enforcement of a contrary provision in the Sign Ordinance, that arg=
ument
may be made in Superior Court in any such appeal, or before the Judicial B=
ureau
in any action to enforce the Sign Ordinance. Similarly, if the criteria for fi=
nding
estoppel are present in the scenario described in the present motions, that
argument may be made in Superior Court in any such appeal, or before the
Judicial Bureau in any action to enforce the Sign Ordinance. Indeed, if estoppel is found, but=
the
sign nevertheless must be relocated due to safety or other public interest
concerns, it is only the Superior Court that could address a claim for
damages. See My Sister=3Ds Place v. City of Burlington, 139 Vt. 602, 608-610 (1981).
Accordingly, based on the foregoing, it is hereby ORDER=
ED
and ADJUDGED that the City=3Ds Motion for Summary Judgment is GRANTED, without preju=
dice
to Appellant=3Ds seeking to file the appeal in any other forum, and
Appellant=3Ds Motion for Summary Judgment is DENIED, without prejud=
ice
to raising the same arguments in any appropriate forum. This decision and order concludes=
the
above-captioned appeal.
Done at Berlin, Vermont, this 28th day of
December, 2005.
_________________________________________________
Merideth Wright
Environmental Judge
[1] The part=
ies
have not presented evidence to determine whether the sign qualifies as
non-conforming due to the widening of Williston Road, under '24(c) of the Sign Ordinance.
[2] Cf., the
multiplicity of offices held by the character Pooh-Bah, in W.S. Gilbert,
(1885); Act I, dialogue followin=
g No.
3, available at
http://math.boisestate.edu/gas/mikado/webopera.
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