National Advertising Company v. Cooley

227 A.2d 406, 126 Vt. 263, 1967 Vt. LEXIS 182
CourtSupreme Court of Vermont
DecidedFebruary 27, 1967
Docket229
StatusPublished
Cited by4 cases

This text of 227 A.2d 406 (National Advertising Company v. Cooley) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Advertising Company v. Cooley, 227 A.2d 406, 126 Vt. 263, 1967 Vt. LEXIS 182 (Vt. 1967).

Opinions

Barney, J.

In March, 1965, the plaintiff company sought to erect billboards in the town of Shaftsbury. The Secretary of State, as 9 V.S.A. §3628 then required, refused to issue the necessary permits, because the proposed signs were in conflict with a billboard zoning ordinance of the town of Shaftsbury, on file in his office. (Effective in July, 1965, the prohibition was transferred to 9 V.S.A. §3626, which was amended to require written permission from the appropriate local official as a prerequisite to the granting of a permit.) The company sought relief from this prohibition by bringing this declaratory judgment proceeding to challenge the existence and validity of the ordinance. The lower court heard the matter on an agreed statement of facts, and dismissed the petition. The plaintiff brought the matter here.

In March, 1951, Shaftsbury adopted an ordinance regulating outdoor advertising. The regularity of its adoption is not questioned in this action, which necessarily includes the requisite preliminary hearing, posting, publication and adoption at town meeting of the pro[265]*265posed ordinance as provided in 24 V.S.A. §3003 and 3011. In accordance with law, a certified copy was duly and timely filed in the Secretary of State’s office. In 1952, the selectmen, as they are empowered to do, adopted an amendment to this ordinance and properly filed a copy of the amendment with the Secretary of State.

In 1953, the following article appeared on the warning for the annual meeting.

To vote by ballot on the following: Will the Town repeal the ordinance regulating outdoor advertising structures which was voted at the 1951 town meeting?

The vote was heavily in the affirmative. The result of the vote was also certified to the Secretary of State. No public hearings were held in connection with this article, either before or after the town meeting. At no time has the board of selectmen taken any action in their legislative capacity to repeal the billboard ordinance. In 1961, and again in 1964; the board adopted amendments to this ordinance and filed them with the Secretary of State. On this state of facts the Secretary of State refused the billboard permits.

The plaintiff raises two issues. First, it contends that the Shafts-bury ordinance has been repealed by,popular vote. Second, it claims that the ordinance, even if still in force, is invalid because it is not comprehensive, since it regulates only outdoor advertising in the town.

A procedure for repeal of a zoning ordinance by a town is now set out in 24 V.S.A. §3027, requiring a favorable vote of two-thirds of the qualified voters present at a duly warned town meeting. It was not part of the law in 1953. In this case we are not engaged in a search for the appropriate or best procedure for repeal in 1953, our concern is only whether the action of the town meeting was sufficient then to repeal the ordinance. The answer to this question can be found by determining whether, under the statutes then in force, authorization to accomplish repeal, by that means alone, had been assigned to the townspeople in town meeting.

The plaintiff analogizes the power of a town meeting to a right of initiative or referendum. Local governments in this state have no such inherent or constitutionally-granted authority. The power to zone is a grant from the legislature. The municipality, there[266]*266fore, has zoning authority only in accordance with, and subject to, the terms and conditions imposed by the state in making the power grant. Thompson v. Smith, 119 Vt. 488, 498, 129 A.2d 638. The townspeople have no independent power to exercise any authority in connection with the granted power not encompassed by the legislative enactments.

The statutes involved do not give the voters any direct power to zone, or to repeal zoning. The legislative grant was restricted. It permitted the voters to grant or withhold from the legislative body of the town, in this case the selectmen, the authority to make zoning regulations. 24 V.S.A. §3002, Thompson v. Smith, supra, 119 Vt. 488, 500. If granted, the voters, in town meeting, had the further right to approve or disapprove the proposed original zoning ordinance. 24 V.S.A. §3003. Once that ordinance took effect, the selectmen had the power to amend, alter or add to the ordinance without the approval of the voters, although they were allowed to solicit any advisory, vote, if they chose. 24 V.S.A. §3004.

Both the original ordinance and all later changes had to be brought to public hearing, with notice to parties in interest and local citizens, before the ordinance or change could become effective. 24 V.S.A. §3011. The only statute then in effect which mentions “repeal” was 24 V.S.A. §3012. It required a two-thirds vote of the selectmen to amend, repeal or alter zoning regulations, restrictions, or the boundaries of zoning districts, if protests from affected and adjacent landowners reached a certain level.

From this statutory pattern a policy clearly emerges to require participation, at least, of the legislative body of the municipality in any alteration or repeal of zoning regulations, as the law stood in 1953. Preliminary public hearings were also a prerequisite. They are lacking in this case.

Nor can it be argued that any inherent power to repeal necessarily resides in the town, merely because it enacted zoning. In other areas the legislature has delegated the power to municipal voters to embrace a governing plan, without giving any authority to disengage. For example, this was true of entrance to the village form of government, up to the passage of No. 184 of the Acts of 1965. Until that time, the legislature kept to itself the power to determine, in individual cases, the manner by which villages might give up this, form of government.

[267]*267The action of the voters of Shaftsbury at town meeting in 1953 was not effective to repeal the existing zoning ordinance. The Secretary of State and the lower court were correct in treating the ordinance as presently in force.

In 24 V.S.A. §3009, the legislature has said, “Such regulations shall be made in accordance with a comprehensive plan . . . .” Since the Shaftsbury ordinance deals only with billboards, the plaintiff argues that it is fatally lacking in comprehensiveness. It points to the provisions of 24 V.S.A. §3002, which then, and now, authorized the regulation of, “the size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes.” The contention is that a comprehensive ordinance must deal with these areas, and, if it confines itself to one type of structure, it is discriminatory.

Statutes are entitled to reasonable construction. Herbert v. Layman and Braun, 125 Vt. 481, 486, 218 A.2d 706. This zoning statute is intended to reach communities ranging in size and complexity from larger than Bennington to smaller than Brunswick. The meaning assigned to “comprehensive” must not produce ridiculous results at either extreme. In same small towns building size, lot size, population density, trade or business use or location, or some of these, may require no attention now, or in the foreseeable future.

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National Advertising Company v. Cooley
227 A.2d 406 (Supreme Court of Vermont, 1967)

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Bluebook (online)
227 A.2d 406, 126 Vt. 263, 1967 Vt. LEXIS 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-advertising-company-v-cooley-vt-1967.