Contributed Column

Legal Brief

Changes to the Chittenden County Regional Plan

November 1999
by Jon Anderson, Michael Burak & Brian Sullivan,
Burak Anderson & Melloni PLC, Burlington

Those of us interested in the continuation of a thriving and vibrant business community in Chittenden County have good reason to be alarmed by the recently proposed changes in the Chittenden County Regional Plan. The numerous mandatory provisions contained in the proposed Regional Plan-- when viewed through the lens of Act 250 -- are likely to have the effect of strangling future economic development in Chittenden County.

The proposed Regional Plan creates enforceable boundaries to industrial and commercial growth through the designation of "Growth Centers." Those growth centers comprise a minuscule portion of Chittenden County. While the Proposed Plan purports to allow a limited amount of development in Mixed Use areas, it uses arbitrary percentages of "future growth" to limit such development. The manner in which those percentages are calculated and future growth is determined will presumably be left to the lawyers participating in the Act 250 process.

Moreover, the Proposed Plan contains a number of statements which, while seeming inoffensive to most, will have significant implications in the Act 250 process. Consider the following statements contained in the Proposed Plan:

• Working environments shall allow employees to sustain an active, diverse lifestyle (§ 2.3)

• Affordable housing units shall be integrated within buildings and along streets (§ 2.4)

• Promoting and providing these alternatives [public transportation and other alternative modes to the single occupancy vehicle] shall become the focus for use of federal and state transportation moneys (§ 2.5)

• Growth in the Region shall be managed to maintain or improve the quality of air, water and land resources, and the health of ecosystems and wildlife (§ 4.1.2)

• The quantity, type, and cost of new housing shall correspond to the Region s needs, and its location shall be in accordance with other land use policies contained in this plan.. [N]o one shall be excluded from a suitable living environment due to.. income. (§ 4.3)

• All new retail development shall include residential space as part of the development, preferably on upper stories, or shall be located in the Regional Growth Center. (Id.)

Creative lawyers will be able to use the foregoing mandatory statements in the Act 250 process to debate questions such as whether a company s employment practices allow employees to sustain active, diverse lifestyles. Highway construction may proceed only if enough money remains after spending enough on public transportation for it to be the "focus." Commercial and housing projects will likely be required to include an affordable housing component with the Act 250 process determining the location and provision of "affordable" units in all housing projects. Presumably, any subsidy required for the construction of such units would be added to the price of housing in each such development in Chittenden County.

Calling documents -- such as the one under consideration by the Chittenden County Regional Planning Commission -- "plans" is a misnomer that often lulls the average citizen into the assumption that they are intended for guidance and have little or no legal import. After all, "plans" are not "laws" or "ordinances" passed by duly elected public officials. Rather, plans are often written and reviewed by a few overworked individuals with limited time and technical support and without extensive public input. Often groups with narrow, special interests are the most active participants in the development of these plans.

The "plans" -- both at the municipal and regional level -- frequently contain recommendations regarding the direction of future development. On the municipal level, zoning ordinances implement the plan s recommendations. For this reason, most citizens do not really focus on the recommendations contained in municipal plans until zoning ordinances are proposed. Even less attention is paid to regional plans.

Such complacency is unwarranted. Municipal and Regional Plans can play a critical role in determining whether a project receives a permit under Act 250. Projects subject to Act 250 jurisdiction cannot be approved unless they are in conformance with local and regional plans. Additionally, a project will not receive an Act 250 permit if that project is determined to violate a clearly written, community aesthetics standard. That written statement may be found in Municipal and Regional Plans.

A recent Environmental Board case (August 19, 1999) involving the John A. Russell Corporation and Crushed Rock, Inc. (Application #1R0489-6-EB) illustrates the significance of the Municipal Plan. In that proceeding, the applicants sought to construct an asphalt plant at the site of an operating rock quarry. The Environmental Board had previously approved the quarry for dolomite quarrying and processing, including grinding and screening. The proposed asphalt plant, though not invisible, was reasonably well sited "so that it would be effectively screened", as the Environmental Board found, "with minimal visual or auditory impact". Moreover, the Board found that "no open space would be lost as a result of the Project."

The project had received the approval of the town s zoning board of adjustment. Nevertheless, the Environmental Board denied the application as inconsistent with the town s plan. Findings 42 and 43 from the Board s decision describe the problem as follows:

42. The Asphalt Plant would be located in the residential district as shown on the Future Land Use Map and as described at page 73 of the Town Plan. The land uses in the residential district are described as follows:

The purpose of the residential district is to provide for residential and other compatible uses at densities appropriate with the physical capability of the land and the availability of community facilities and services. Planned residential developments, open space preservation, and other techniques for preserving the rural character of these areas are encouraged. Development should take place in such a way that any irreplaceable, unique, scarce resources and natural areas are not harmed.

43. The "Industrial" district narrative ends with the sentence: "Other uses incompatible with industrial uses, such as residential, will be discouraged for the health, safety and welfare of the community."

The Environmental Board concluded that this language was sufficiently clear to exclude an otherwise inoffensive industrial project from the areas labeled as residential on a future land use map. And it did so in the face of approval by the town s own zoning authority.

A key question in Act 250 proceedings, such as the one discussed above, is whether the relevant language in a plan is sufficiently clear and specific as to be legally enforceable. This question can turn upon whether the plan uses the word "shall" or the word "should." A plan provision saying what developers "shall" do is enforceable while a plan provision saying what they "should" do may not be. Hence, the passages from the Proposed Plan quoted above have the potential to become enforceable, legal standards that could cause a project to fail Act 250 review.

The Proposed Plan could also be used to assert that no development should be permitted if it has any adverse impact, even when such impact would be otherwise acceptable under traditional standards. Where Act 250 normally restricts only "undue" impacts on land resources, ecosystems and wildlife, the proposed Plan appears to restrict development having any adverse impact.

As demonstrated above, the Proposed Plan contains a number of mandatory provisions that may become enforceable legal standards. If that occurs, the Act 250 process will include such non-environmental factors as workplace conditions, affordability of housing, and other issues normally left to others. Hence, while the Proposed Regional Plan may be viewed by some as the answer to "sprawl," the price tag for that answer is the future economic growth in Chittenden County.

You must submit your comments on the proposed Regional Plan to the Chittenden County Regional Planning office by November 15, 1999. We encourage all who are concerned with the continuing economic viability of the County to express their position with respect to the provisions discussed above.

Legal Brief

The Internet and the Law

September 1999
by Lawrence H. Meier, Esq. & Walter E. Judge Jr. Esq.,
Downs Rachlin & Martin PLLC

The law has hit the Internet. Do you "surf" or "browse" the World Wide Web? Do you own a Web site? Are you a Web site developer or builder? If so, you need to know how to avoid being sued, and how to avoid copyright and trademark infringement.

As a basic principle, you must understand that when you "visit" a Web site, what you are actually doing is "downloading" the contents of that site onto your computer and temporarily storing that information in the computer's random access memory (RAM). For example, if you click on www.drm.com, your computer screen will show the home page of Downs Rachlin & Martin PLLC. The reason for this is that your computer has pulled information from the law firm's Web site and put it in RAM.

With that understanding in mind, here is a list of the "dos" and "don'ts" in this evolving area of the law.

1. Can you store Internet information on your computer and then use it later?
   It depends. Normally, when you "visit" a Web site, you temporarily store the site's information in RAM and then that information disappears when you leave the site, leave the Internet, or turn your computer off. There are no copyright implications. However, when you save information from the Internet on your computer, copyright law comes into play. Under the copyright "fair use" doctrine, some use of copyrighted works is permitted, and storing and later using information from the Internet is not automatically a copyright violation. Various factors are considered in determining if "fair use" exists, the most important being the commercial impact of such use on the copyright owner. For instance, printing out online operating instructions from the Web site of a vacuum cleaner manufacturer for your own use is not a copyright violation. On the other hand, reproducing those instructions nearly verbatim in a printed operating manual for your company's vacuum cleaner would probably constitute copyright infringement.

2. Can you create hypertext links to any Web site?
   Probably not. Until recently, there were no legal restrictions on the ability to hypertext a link from one Web site to a second site (assuming a copyright or trademark of the linked site's owner was not used as an icon for initiating the link). However, with the recognition that money can be made from link licenses, the days of unrestricted hypertext linking may be drawing to a close. Efforts to license links have increased dramatically over the last few months. It appears trademark law (and software link blocks), rather than copyright law, will be used to prevent linking where link fees are not paid.

3. Can you use another company's trademark to sell or advertise your goods or services on the Internet?
   Definitely not. As use of the Internet as a means of commerce has exploded, established principles of trademark law have been held to apply to the Internet. First, in Internet commerce (e-commerce), just as with traditional channels of commerce, you cannot use another person's trademark to sell your goods. Second, it is generally not permissible to use another company's trademark as part of your domain name. Thus, for example, you cannot call your Web site "pepsiworld.com" or "disneytime.com." These domain names would violate clearly established trademark rights.

4. Can you "mirror" portions of another Web site in your Web site?
   Probably not. New Web technology allows links to specific portions of one Web site by "mirroring" the portion seamlessly into a second Web site. For example, a graphic image from one Web site can be inserted (mirrored) into the middle of a page of a second site so that the image appears to be an original part of the second site. This may be a copyright violation of the original Web site. The owner of the original Web site, by placing the information on his or her site, authorizes users to view the information in the specific context of his or her Web page. This authorization does not necessarily extend to portions of a Web site when mirrored in another person's Web site. Also, trademark law prohibits mirroring where the mirrored information is the trademark of another and the mirroring site is using the trademark to sell its own products.

5. Can you be sued in far-flung places if someone accesses your Web site there?
   Probably. Suppose your company is based in Vermont, but you sell a product or service through your Web site to someone in California. Under those circumstances, you could probably be sued in California. Under traditional principles of jurisdiction, you can be sued in any state where you "do business," particularly if you know, or have reason to know, that your product will end up there. If you accept orders for your product or service over the Internet from people in California, then you probably are subjecting yourself to the jurisdiction of the California courts.

The law applicable to the Internet is in flux. The World Wide Web is a brave new world. Posting a Web site may subject you to liability you never dreamed of. Be sure to obtain competent legal advice before making important decisions involving use of the Internet. Seemingly minor technical issues can affect whether use of Internet information is acceptable under copyright and trademark law, and whether you will be unexpectedly defending lawsuits in California or elsewhere.

Lawrence H. Meier and Walter E. Judge Jr. are directors with the law firm of Downs Rachlin & Martin PLLC, with offices in Burlington, St. Johnsbury, Brattleboro and Littleton, N.H. Meier is chair of the firm's intellectual property practice group, and practices exclusively in the area of patent, trademark, copyright and trade secret law. Judge is a litigator and member of the firm's commercial and business litigation and intellectual property practice groups.

Office Talk

Essence of Good Office Design

June 1999
by Mitra Samimi-Urich, ISP Allied Member, ASID Mitra Designs Architectural Interior Designs & Space Planning

Business interiors are constantly changing environments. Maintaining a corporate image and creating an innovative, productive interior environment amid the ever-changing requirements of a facility can be a complex task for a facility manager or business owner.

The essence of good design is the ability to combine all the critical design elements from function to form, meet tight construction and renovation deadlines, and stay within budget. There are several key considerations to keep in mind:

Understanding a business needs
This is the essence of good design. What is the nature of the business, who does the business cater to and what kind of service or product does it provide? It is only once a thorough understanding of the business is established that the design concept can be developed a design concept that sets the business apart from its competitors.

Consider the basic elements of interior design
Design approaches should harmonize the relations between shapes, angles, textures, sizes, positions, and their relations to space, natural light, artificial light, colors and furnishings.

Flexible working environments
Offices must be designed to meet a facilitys current needs and technical requirements but must be able to adjust for changes in facility composition and growth.

Friendly environments
Friendly and inviting interiors reward those who work in the office as well as those who visit the facility. They also promote productivity and subsequently increase business profitability.

Healthy work environments and ergonomics
The principle of ergonomics is the science of how people interact with their physical environment. Good ergonomic concepts are key to the success of interior design. They should include the correct arrangement of work stations, selecting good task chairs, appropriate height of keyboards, appropriate lighting, reduction of glare and eye strain, flexible and adjustable furniture.

Provide accessible designs
Spaces must be designed so they are accessible to people with walking, speaking, seeing, and hearing disabilities. Critical areas include restrooms, public areas, lunch rooms and meeting rooms.

Develop effective color schemes
Perhaps no other aspect of an interior is as expressive as colors. By understanding the psychological effects of colors we can create the mood we desire within a space. For example, warm and vivid colors are exciting and create elements of energy, attract attention and have advancing character. Cool, pale colors are restful, calming, subtle and have receding character. Warm neutral colors, if used in the right kind of concentration, can be effective background colors, seem quite sedate, be lasting and elegant. No matter which color scheme is chosen the basic element of design in plane, lines, points, textures and surfaces must be considered.

Lighting
Proper lighting requires special consideration from the initial architectural planning through the selection of accessories. Creating effective lighting involves the selection of the three main types of lighting: ambient or general, task, and accent. In some cases a fourth is used: mood lighting, which can fall within the category of accent or ambient lighting.

Furniture
Work environment furniture must be as intimate to us as our clothing. All design elements style, aesthetics, function, construction, budget and availability must be carefully evaluated. Fortunately there are many high-quality contract furniture lines available. This helps create a competitive pricing edge.

One final note: The average person spends as much as 70 percent of his or her time indoors, which means interior environments can have a powerful hold on human behavior. Interior design must be treated as an integral piece of any renovation or new construction project. To ensure design continuity the process of interior design must begin at the same time as architectural and mechanical processes. Planning ahead can eliminate costly, last-minute changes, create harmony with all design elements and build a corporate office image that is welcoming, effective, productive, interactive, stylish and profitable.

For more than 16 years Mitra Samimi-Urich has been a professional interior architectural designer as well as an artist. She has created designs for a wide range of building types as well as private residences. Some of her recent commercial projects include the Northwestern Medical Center, St. Albans; Vermont National Bank and Chittenden Banks corporate offices, Burlington; the Vermont State Craft Center at Frog Hollow, Burlington; and award-winning designs for the National Bank of Middlebury Beckwith Block Historic renovation, Middlebury.

Builders' Brief

The Importance of Construction in Our Vermont Society

May 1999
by Phil Scott, past president Associated General Contractors of Vermont

Vermont and construction. Some might say this is a contradiction considering the commonly held belief that Vermont is generally anti-development and pro-environment. The image of construction in our state is the antithesis to the wholesome Vermont culture the world has come to know and Vermonters have long cherished. Is there really a contradiction? The environment we seek to protect, the lifestyle we live, is based in many ways on the construction of Vermont in past decades. The covered bridges, the quaint villages found along rural roadsides of Vermonts mountain terrain, the small towns with historic facades from eras past this is the Vermont that we all share and want to protect. Without the necessary capital spending needed to maintain these historic structures as well as the upkeep of other infrastructure needs, Vermont as we know it will be dramatically changed.

As a society we have a responsibility to maintain our infrastructure, as we would maintain our own homes from the deterioration that occurs with age and use. Our schools, public buildings, water treatment facilities, roads, bridges and recreation facilities are a part of the way we live our daily lives. The future of Vermont in many ways depends on preserving and maintaining what we have. That is where the construction industry comes in. As they have in past decades, Vermont contractors are there to build and rebuild, repair and rehabilitate Vermont in the way Vermonters designate through our democratic processes. Like James Cashman, a Burlington contractor and one of the founders of The Associated General Contractors of Vermont (1934) who built the Burlington City Hall, the Winooski bridge and other historic treasures we still use today, contractors are a vital part of our history and our future.

In a state with limited resources and without the appetite to develop the economy like other states, Vermont must make some tough decisions when it comes to capital spending. The need to fix or repair what already exists in Vermonts infrastructure inventory is mind-boggling. With 1,000 dams statewide, more than 324 public school buildings, 15 technical centers, 2,700 bridges 20 or more feet in length, 14,000 miles of roadway, 320 miles of Interstate, 2,370 miles of state highway, 11,210 miles of municipal roads and 16 public use airports, it is easy to understand the extent of maintenance and repair required. Add to that list new initiatives of recent years in public transportation, recreation paths, rail freight and commuter rail and the enormity of the problem is compounded.

Vermont faces a major decision today and for the foreseeable future: Bite the bullet and make the costly repairs and rehabilitation of the existing infrastructure or continue to neglect the issue, causing replacement of the system at a much greater cost in the years to come. Our future depends on how we respond.

Public investment spurs private investment, so when it comes time to decide where the tax dollars are spent what is the most prudent investment to make? If the dam gives way will the businesses in the lakeside community that tourists visit each year lose their livelihood? If the bridge collapses or is shut down to traffic because of weight restrictions will the fire truck get to the other side to fight the fire on time? Will the ambulance reach the patient within the critical time period between life and death or the fuel truck deliver the home heating oil on a sub-zero Vermont winter day? In many ways all of us have all too often taken our infrastructure for granted. We need not go far for reminders of how important it really is. Ask the residents of Montgomery, Waitsfield or Bristol who in recent years had their way of life changed. We depend on a sound infrastructure in the public and private sectors to maintain our way of life. Its important we maintain that investment.

Not only is it wise to maintain our overall infrastructure for pure economic and cost saving reasons; but as the U.S. Department of Labor contends for every dollar spent on construction activity there will be a $2.75 return to the economy. The Council of State Governments states that every dollar invested in the highway system yields $2.60 in economic benefits, with every billion invested producing 42,000 jobs. In short, this means we can maintain what we have and fuel the economy so resources are available for other non-construction related programs to benefit the society.

Franklin Roosevelt recognized this economic reality when in the depth of the depression he created the Works Projects Administration (WPA) and the Civilian Conservation Corps (CCC), putting millions of unemployed Americans to work on public projects nationwide. He knew construction drives the economy, and whether it is new construction in the fastest growing states of America or reconstruction and rehabilitation in less populated states like Vermont the result is the same. People are put to work, construction businesses are able to stay in business and both are able to pay their taxes necessary for government to provide for other needs in society. Construction is truly an economic engine that needs to be primed every so often to insure our continued way of life.

In Vermont, the construction industry can fuel the economy, preserve the past and provide for the future. Vermont needs to understand this and set its public policy accordingly.

Phil Scott is a Montpelier businessman and contractor whose family-owned and -operated construction business, Dubois Construction Inc., has been in Vermont for more than 50 years.