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

Gibson, J.,

dissenting. I concur in Part II of the Court’s opinion, but I do not agree with Part I. Simply put, an advertising banner is a sign within the meaning of the 9 and 9A permits, and Handy Family Enterprises (HFE) violated the conditions of both permits when it installed the first banner in February 1991. I therefore respectfully dissent.

I agree with the Court that we must accord some deference to an Environmental Law Division (ELD) conclusion that a permit condition is vague. The ELD in this case, however, made no such conclusion. Here, the ELD concluded that Taft Corners Associates (TCA) and HFE had not violated their permits prior to May 17,1991, *488reasoning that the 9 and 9A permits did not specifically address temporary banners and that some area businesses had been using temporary banners without apparent challenge. It found, however, that, by May 16, when the District Commission denied the parties’ request for approval of the banners, the parties knew the District Commission interpreted the 9A permit to prohibit the banners, and that banners placed or remaining on the building thereafter constituted violations of the 9A permit. I do not believe that these findings are tantamount to concluding that the 9 and 9A permits were vague or ambiguous. If that were the case, the ELD would riot have found a violation of the 9A permit at all, regardless of the Notice of Alleged Violation.

Moreover, in her discussion of mitigating factors relevant to the penalty, the ELD stated that the terms of the 9 and 9A permits “may have been” too unclear to put HFE and TCA on notice that the temporary advertising banners were prohibited.1 (Emphasis added.) The ELD’s decision falls far short of concluding that the 9 and 9A permits were ambiguous or vague.

The 9 and 9A permits obligated HFE and TCA to maintain their project according to conditions contained in the permit. The 9 permit prohibited the installation of “any exterior signs” without written approval. (Emphasis added.) The 9A permit provided that “[t]he installation of exterior signs [is] limited to those approved,” specifically, an egress sign and two awning signs, and required the parties to obtain written approval from the District Environmental Commission if they wished to change any of the conditions contained in the permit. The banners were not among the exterior signs approved by the District 4 Commission in the 9A permit. The permit emphasized its prohibition on additional signs in condition 8: “The installation of any other signage or change to that signage approved herein is strictly prohibited without the issuance of an amendment to this Land Use Permit or without the prior written approval of the District IV Environmental Commission.” (Emphasis added.)

The 9 and 9A permits thus clearly stated that HFE and TCA needed written approval from the District Commission should they desire to install exterior signs different from those approved.

*489HFE argues that because the banners were temporary, they were not proscribed until the 9B permit was issued. The majority goes even further and finds that the word “sign” is ambiguous and connotes something with a structure that must be installed.2 I am unaware of the rule of construction that permits a court to interpret a term based on the images the term conjures up in the minds of the court’s members. I would examine the word “sign” according to the principle that words not specifically defined in a statute are to be given their plain and commonly accepted meaning. Vincent v. Vermont State Retirement Bd., 148 Vt. 531, 535-36, 536 A.2d 925, 928 (1987). “Sign” is commonly defined as “a lettered board or other display used to identify or advertise a place of business.” Webster’s Ninth New Collegiate Dictionary 1096 (1991) (emphasis added). The common thread running through this definition and each of the definitions the majority cites is the requirement that the sign “advertise,” provide “notice” or “identify” something. Under all the dictionary definitions in the majority opinion, a “structure” is not a sign unless it contains a “notice, bearing a name, direction, wording or advertisement,” or bears letters or symbols “used to identify or advertise a place of business,” or bears an “advertisement” and is “displayed for public view.”

Further, I would view Act 250 in conjunction with the statutory scheme that regulates outdoor advertising generally, adopted two years prior to Act 250, see 10 V.S.A. §§ 481-506, because both acts serve the same purposes and policies. Compare 10 V.S.A. § 482 (legislative findings recognizing great value of Vermont’s scenic resources and detrimental impact on those resources by outdoor advertising) and id. § 483 (prohibiting indiscriminate use of outdoor advertising promotes public health and welfare) with id., chapter 151, Findings and Declaration of Intent (declaring it necessary to control land use to insure that such use will not be unduly detrimental to environment and will promote general welfare through orderly growth and development) and id. § 6086(a)(8) (before issuing land use permit, district commission must find that proposed use will not *490adversely affect area’s scenic or natural beauty and aesthetics). Section 481(6), as it existed at the time of the events herein, defined “sign” as “any structure, display, device or representation which is designed or used to advertise or call attention to any . . . business . . . and is visible from any highway.”

In this case, the banners advertised that the budding contained a restaurant that was open for business. The banners also advertised lunch and dinner specials, and were visible from Routes 2 and 2A. The banners, therefore, plainly came within the common meaning of the term “sign.”

The fact that HFE did not intend to affix the advertising banners permanently to the restaurant does not alter the plain meaning of the word “signs” in the 9 and 9A permits. The permit applications did not request approval for “permanent” signs, nor were the 9 and 9A permits limited to apply to “permanent” signs only. Rather, the 9 permit stated clearly that the parties were not authorized to install any exterior signs without District Commission approval. Similarly, the 9A permit unambiguously stated that the parties could install only those signs approved in the permit, and that they needed permission from the District Commission to install “any other signage.” (Emphasis added.) In light of HFE’s continued use of the banners despite explicit warnings from the District Commission not to do so, it is not surprising that the 9B permit contained language expressly prohibiting temporary signs. That language does not, however, change the plain and unambiguous conditions set forth in the 9 and 9A permits that the parties must obtain approval from the District Commission before installing any unauthorized signs. In sum, nothing in the common meaning of the word “sign” or in the context of the 9 and 9A permits excludes a “sign” intended to be temporary.

To exclude temporary signs from the permit approval process would subvert the purposes of Act 250 and negate the Commission’s ability to preserve an area’s scenic or natural beauty under § 6086(a)(8). Both permanent and temporary signs have the capacity to affect an area’s aesthetics adversely. In fact, the permittees needed approval to change the color of the two permitted awning signs. In approving the color change, the District Commission concluded that “the change in color from a burgundy maroon to a dark green. . . will reduce the overpowering appearance” of the signs, and it cited its efforts to preserve the area’s scenic and natural beauty. I am unpersuaded that the temporary nature of the banners converted them from “signs” to unregulated displays.

*491Because I believe the banners violated the terms of the 9 and 9A permits, I respectfully dissent. I am authorized to say that Justice Johnson joins in this dissent.

The evidence relating to the existence of banners on other area businesses was offered and admitted for the purpose of establishing mitigating circumstances for the permittees’ failure to comply with their permits. It was not offered or accepted by the ELD to demonstrate that the word “signs” in the 9 and 9A permits was ambiguous.

The majority also finds ambiguity in the permits because they refer to the “installation” of signs, a word the majority states “would not be used to describe the act of hanging or tieing a banner.” The parties themselves, however, used this term to describe the very act for which the majority claims this word would not be used. For example, HFE wrote to the District Coordinator requesting “temporary approval of the non-permanent banners now installed at the Ponderosa.” (Emphasis added.) In addition, in the stipulated facts submitted to the ELD, the parties listed the dates each banner had been “installed” on the restaurant.