Outdoors in Motion

FILED
Environmental Court of Vermont DEC 26, 2006
State of Vermont
V E R M O N T ENV. E C O U R T
E N T R Y R E G A R D I N G M O T I O N
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Outdoors in Motion, Inc A250 Amendment Docket No. 208-9-06 Vtec
Project: Outdoors in Motion, Inc.
Applicant: Outdoors in Motion, Inc.
(Appeal from Act 250 District Commission)
Title: Motion for Summary Judgment, No. 1
Filed: October 23, 2006
Filed By: Goss, James P.W., Attorney for:
Appellant Outdoors in Motion, Inc.
Appellant Downing Properties LLC
X Granted Denied Other
This appeal is from a denial of the application filed on behalf of Appellants Outdoors in Motion, Inc.
and Downing Properties, LLC ("Appellants") to amend their pre-existing Act 250 Permit (#1R0082, as
amended) to allow for increases and relocations of signs at Appellants' recreational vehicle sales and service
store on the southeast side of U. S. Route 4 in Rutland Town. The District Environmental Commission #1
(District Commission) concluded that Appellants' proposed sign additions and alterations would cause an undue
adverse impact upon the aesthetics of the neighboring area and would therefore not be in compliance with 10
V.S.A. § 6086(a)(8), commonly referred to as Act 250 Criterion 8. This is the sole determination that
Appellants preserved for this Court to review on a de novo basis in this appeal, pursuant to 10 V.S.A. §§ 6089
and 8504 and V.R.E.C.P. 5(a)(1). See also V.R.E.C.P. 5(f).
Appellants filed a motion, requesting that this Court enter summary judgment and dispose of the need
for a trial in this appeal. No other party has appeared in this proceeding and no party has filed an objection to
Appellants' pending motion. Nonetheless, we must review the material facts and may only grant Appellants'
motion if we determine that the applicable law directs that Appellants are entitled to judgment. In re Appeal of
Jolley Associates, 2006 VT 132, 11 9, quoting In re Garen, 174 Vt. 151, 156 (2002).
In that light, we note that Appellants' property is situated amongst a number of retail and commercial
facilities, some smaller and some much larger than Appellants' store. Some examples include a Home Depot,
Nationwide Insurance office, Best Western hotel, Premier Homes real estate office, Allen Pools and Spas and
the Mendon Country Store. See Appellants' Exhibit 6. All these facilities have at least one on-site sign for
advertisement; some have several. Some properties have several separate businesses on each site; some have
one business on site. Appellants have one business on their property, from which they offer for sale to the
general public several different types of recreational vehicles, including ATVs, cruiser-type motorcycles and
mobile residence-type recreational vehicles. Of the 64 examples of businesses Appellants list in Exhibit 6
within an approximate 2-mile span of either side of Route 4, Appellants' property is in the middle. Thus, we
conclude that Appellants' commercial use of their property, including signage, is in character with the
neighboring area.
While Appellants currently use multiple signs on their property, such signs are not in violation of their
current permit. Thus, our present review is limited to the changes that Appellants' amendment application
suggests. See In re Taft Corners Assoc., 160 Vt. 583, 593 (1993) and Walker Construction, Inc., Docket No.
5W0816-1-EB, Findings of Fact, Conclusions of Law and Order at 8 (Vt. Envtl Bd., Jan. 14, 1987). Applicants
propose four changes to their signage:
(1) relocate the existing "Outdoors In Motion" sign from the center of the building's front to the left
edge of the building's front;
December 26, 2006 Entry Order in Outdoors in Motion Act 250 Appeal, Docket .,. 208-9-06 Vtec. (Page 2 of 2.)
(2) replace a smaller "Polaris" snowmobile sign, currently on the right side of the building's front,
with a much larger "Polaris" sign (30" by 21') that would be mounted on the building's front roof,
just above the eaves and centered on the front doorway;
(3) install a new "Victory" motorcycles sign, measuring 4' x 8', in between two ground-mounted
pylons in front of the building; and
(4) periodically install (a) temporary signs, measuring up to 3' x 4', on the building's front to advertise
open houses and special promotions, and (b) erect an outside tent during four open houses to be
held for two weeks at the beginning of the four principal selling seasons during each calendar year.
In determining compliance with Criterion 8, we receive guidance from both our Supreme Court and the
former Environmental Board in their respective decisions: In re Quechee Lakes Corporation, 154 Vt. 543 (1990)
and In re Quechee Lakes Corporation, Docket No. 3W0411-A-EB, Findings of Fact, Conclusions of Law and
Order (Vt. Envtl Bd., Nov. 4, 1985). This precedent has come to be commonly known as the Quechee Lakes test
and contains a two-step analysis. The district commission in the first instance, and this Court on appeal, must
first determine whether the proposed project is "adverse," that is, whether it is in harmony with its surroundings,
from an aesthetic perspective. If the determination is made that the project would be aesthetically adverse, a
determination must then be made as to whether the anticipated adverse aesthetic impacts are "undue."
We conclude that we need not go through the full Quechee Lakes analysis here because the undisputed
material facts presented to us show that while Appellants intend to add large signs to their property, such is not
inharmonious to the aesthetic character of this section of Route 4. The proposed new "Polaris" sign will be 2'/z'
x 21', but is replacing a smaller "Polaris" sign, of similar color, also presently located on the front of Appellants'
building. The Court is familiar with this section of Route 4, having frequently traveled this area. The Court's
familiarity helps put in context the uncontested evidence Appellants submitted. The sign additions Appellants
propose for their property do not represent a significant departure from the signs already permitted and installed
on Appellants' property and in evidence at neighboring properties. We conclude that Appellants' additions and
alterations of signs and periodic addition of a display tent is in character with this commercial section of West
Rutland.
For all these reasons, we do hereby GRANT Appellants' summary judgment motion. This Entry Order
shall also serve as the Judgment Order, pursuant to V.R.C.P. 58. In light of the sole issued raised in this appeal,
we decline to remand this matter to the District Commission, but rather issue the Amended Permit that
accompanies this Entry Order, all within the discretion afforded this Court by V.R.E.C.P. 5(j). This Order
concludes the current proceedings before this Court.
_____ December 26, 2006 ___
Thomas S. Durkin, Environmental Judge Date
Date copies sent: 12/26/06 Clerk's initials: DCC .
Copies sent to:
Attorney James P.W. Goss for Appellants Outdoors in Motion, Inc. and Dowling Properties, LLC
Vermont Natural Resources Board (FYI purposes only)