Bowman v. Wintergreen Property Owners Assoc. , 250 Va. 177 ( 1995 )

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Friday, the 15th day of
September, 1995.
Norton Bowman, Appellant,
against Record No. 941911
Circuit Court No. 125CH93003286-00
Wintergreen Property Owners Association, Inc., Appellee.
Upon an appeal from a judgment rendered by the
Circuit Court of Nelson County on the 12th day of
August, 1994.
Upon consideration of the record, briefs, and argument of
counsel, the Court is of opinion that there is no error in the
judgment appealed from. Accordingly, the judgment is affirmed.
The appellant shall pay to the appellee thirty dollars damages.
JUSTICE WHITING, with whom JUSTICE LACY and JUSTICE KEENAN join,
concurring in part, and dissenting in part.
Unlike the majority, which decides this case without stating
the facts or giving a reason for its decision, I think there was
error in the chancellor's judgment and I believe that some
explanation should be given to the litigants. Accordingly, I find
it necessary to state the facts in order to explain my reasons for
dissenting to a part of the majority's order.
This appeal arises from Norton Bowman's display of certain
articles of personal property outside his house in the Wintergreen
Resort residential subdivision (Wintergreen) in Nelson County.
The display in question included three cow skulls, two pairs of
cow horns, three neon signs reading "Aspen," "Key West," and
"Margaritaville," and a bar and murals attached to the outside of
Bowman's residence. Also, either on the outside deck of his house
or in his yard, Bowman displayed a lighted Christmas tree
silhouette, the statues of two deer, five pastel, beach-style
umbrellas, eight lighted wicker deer structures, seven lighted
artificial cactus and palm plants, eight wooden figures
representing cowboys and Indians, two lighted pink flamingos, and
two wooden owls.
Wintergreen Property Owners Association, Inc. (the
association) sued Bowman to enjoin his display of these and other
articles without its permission or approval as violations of the
following Wintergreen restrictive covenants: 1
1. No building, fence or other structure shall be
erected, placed or altered nor shall a building permit
for such improvement be applied for on any property in
Wintergreen until the proposed building plans and
specifications, showing floor plans, the front
elevation, exterior color or finish, a plot plan
detailing the proposed location of such building or
structure, drives and parking areas, a landscape plan, a
pollution control plan . . . and the construction
schedule shall have been filed with and approved in
writing by [the association], its successors or assigns.
Refusal of approval of plans, location or specification
may be based by [the association] upon any ground,
including purely aesthetic conditions, which in the sole
and uncontrolled discretion of [the association] shall
seem sufficient. No alteration in the exterior
appearance of any building or structure shall be made
without like approval by [the association]. . . .
5. No signs shall be erected or maintained on any
property by anyone including, but not limited to, the
owner, a realtor, a contractor or subcontractor, except
with the written permission of [the association] or
except as may be required by legal proceedings. If such
permission is granted, [the association] reserves the
right to restrict size, color and content of such signs.
1
The association is the successor to the developer which
imposed these restrictions.
Residential property identification and like signs not
exceeding a combined total of more than one (1) square
foot may be erected without the written permission of
[the association].
6. It shall be the responsibility of each property
owner and tenant to prevent the development of any
unclean, unsightly or unkept conditions of buildings or
grounds on such property. No outside burning of wood,
leaves, trash, garbage or other refuse shall be
permitted on any Property.
Following an ore tenus hearing, the chancellor agreed with
the association's construction of the restrictive covenants
regarding the above articles and required Bowman to remove them
2
unless he obtained association approval. Bowman appeals.
The controlling principles are set forth in Friedberg v.
Riverpoint Bldg. Comm., 218 Va. 659, 665, 239 S.E.2d 106, 110
(1977), as follows:
Valid covenants restricting the free use of land,
although widely used, are not favored and must be
strictly construed and the burden is on the party
seeking to enforce them to demonstrate that they are
applicable to the acts of which he complains. . . .
Substantial doubt or ambiguity is to be resolved against
the restrictions and in favor of the free use of
property. . . .
But if it is apparent from a reading of the whole
instrument that the restrictions carry a certain meaning
by definite and necessary implication, then the thing
denied may be said to be clearly forbidden, as if the
language used had been in positive terms of express
inhibition. . . . (Citations omitted).
Bowman argues that his neon signs did not require association
approval under the provisions of restriction 5 because they were
not "advertisement[s]" but a "display of neon art," reflecting
2
The association has not assigned cross error to the
chancellor's judgment that Bowman did not violate the restrictive
covenants in locating a hot tub and twelve globe lights outside
his residence.
places he had visited and the signs were intended to be
illuminated only during his occupancy of the premises. I agree
with the association that the plain language of restriction 5
specifically covers Bowman's sign display even if it could be
considered "neon art." Thus, I would affirm that part of the
chancellor's opinion.
Turning to restriction 1, particularly its language that
"[n]o alteration in the exterior appearance of any building or
structure shall be made without like approval by [the
association]," I disagree with Bowman's claim that, as used in
this sentence, the word "alteration" limits association approval
to those changes that are structural modifications of the exterior
of any building or structure. Instead, I agree with the
association's contention that, consistent with the context of this
sentence and the remaining language of restriction 1, the word
"alteration clearly encompasses any change or alteration in the
exterior of Bowman's residential structure." The requirement of
association approval of building plans and specifications, front
elevations, and exterior colors and finishes in the first sentence
of restriction 1 makes it plain that a similar approval is
required for an alteration or change in the exterior appearance of
any residence by the attachment of personal property thereto.
Hence, I agree that association approval was required for those
items of display attached to Bowman's house.
However, I disagree with the association's contention that
Bowman's display of the other personal property in his yard and on
the deck of his residence was subject to restriction 1. The
chancellor held that these objects "come within the terms of the
[restriction 1]" because they "alter the exterior appearance of
the structure" and, thus, their display requires association
approval. On the contrary, I would hold that Bowman's yard
display was not an alteration in the appearance of his residential
structure requiring association approval, but an alteration in the
appearance of his yard, clearly not subject to such approval.
Nor do I agree with the association's contention that a
prohibition of "alteration[s] in the exterior appearance of any
building or structure" unambiguously requires association approval
of Bowman's placement of pastel umbrellas and other personal
property on the deck of his residence. If restriction 1 is
unambiguous, there is no need for construction and we simply apply
the language as written. Moore v. State Farm Mut. Auto. Ins. Co.,
248 Va. 432, 435-36, 448 S.E.2d 611, 613 (1994). Yet, instead of
applying the restriction as written, the association construes "no
alteration in" to mean "no items which alter." And even this
"amended" language needs further construction to permit the
conclusion that nothing may be displayed on the residence or its
deck without association approval, although not attached to either
the residence or the deck. Thus, the association itself
demonstrates that the language is ambiguous and merely advances
one construction of that language.
I think a better construction of this provision of
restriction 1 is that association approval is limited to those
articles which are attached to the residence or deck and thus
alter the appearance of the structure. This construction is
reinforced when this provision is considered in context with the
earlier provisions in restriction 1 requiring association approval
for the construction of buildings, fences, structures, drives,
parking areas, landscape plans, and pollution control plans. In
any event, any doubt or ambiguity in the scope of any restrictive
covenant is to be resolved against the restriction and in favor of
the free use of property. Williams v. Brooks, 238 Va. 224, 228,
383 S.E.2d 712, 714 (1989); Friedberg, 218 Va. at 665, 239 S.E.2d
at 110. Hence, I think the chancellor erred in requiring
association permission for Bowman's display of the articles of
personal property that were simply placed on the deck of his
residential structure.
Next, I consider the chancellor's alternative ground for
enjoining Bowman's display. The chancellor also held that
Bowman's display was an "unsightly condition" "in relation to the
general appearance and scheme of development at Wintergreen," and
hence a violation of restriction 6. Although the chancellor gave
no further explanation for his ruling, the association claims the
following additional language from the restrictive covenants
supports his holding: "The primary purpose of these covenants and
restrictions and the foremost consideration in the origin of same
has been the creation of a community which is aesthetically
pleasing and functionally convenient."
However, the specific purpose of restriction 6 is "to prevent
the development of any unclean, unsightly or unkept conditions of
buildings or grounds." I do not think that this language can be
converted into a restriction against the creation of a display
some people may consider aesthetically displeasing. In extending
the scope of the restriction beyond its clear purpose, I think
that the chancellor read the word "unsightly" out of context for
the reasons which follow.
First, I consider that the purpose of restriction 6 is "to
prevent neglect in the subdivision by requiring lot owners to take
action "to prevent the development of any unclean, unsightly or
unkept conditions." Stated another way, restriction 6 is aimed at
a lot owner's neglect or failure to act in maintaining his
property.
On the other hand, an aesthetically displeasing display
usually is the result of some affirmative act; it does not occur
by neglect. It is not usually regarded as a "condition[]," which,
in relation to an inanimate object, usually alludes to the state
of its cleanliness or repair. And the language of restriction 1
requiring association approval of "the proposed building plans and
specifications," a "plot plan," a "landscaping plan," and a
"pollution control plan," and subjecting such approval to "purely
aesthetic conditions," demonstrates a familiarity, not only with
the difference between a neglected property and one that is
aesthetically displeasing, but also with the method of subjecting
certain parts of the lot owner's property to the aesthetic
judgment of the association.
My second reason for concluding that the chancellor read the
word "unsightly" out of context is that the enumeration of
"unclean," "unkept," and "unsightly" as common modifiers of the
word "conditions" requires that the three modifiers be construed
consistently with each other under the well-established maxim of
noscitur a sociis. Under this maxim, "when general and specific
words are grouped, the general words are limited by the specific
and will be construed to embrace only objects similar in nature to
those things identified by the specific words." Martin v.
Commonwealth, 224 Va. 298, 302, 295 S.E.2d 890, 893 (1982). Or,
as stated by another authority, "[t]he meaning of a word is or may
be known from the accompanying words. Under the doctrine of
'noscitur a sociis', the meaning of questionable or doubtful words
or phrases . . . may be ascertained by reference to the meaning of
other words or phrases associated with it." Black's Law
Dictionary 1060 (6th ed. 1990).
And, as pertinent to the prevention of "the development of
any unclean, unsightly or unkept conditions of buildings or
grounds," "unclean" is defined as "dirty, filthy," Webster's New
International Dictionary 2485 (3rd ed. 1986) and "unkept" is
defined as "neglected." Id. at 2502. Accordingly, I do not think
that one can define "unsightly," in the context of these
restrictions, as an "aesthetically displeasing" display.
In sum, and consistent with Friedberg and Williams, I read
the word "unsightly" in harmony with the remaining language of
restrictions 1 and 6. Thus, I would construe restriction 6 as
dealing solely with a lot owner's responsibility to keep his
buildings and grounds in good condition. And the evidence is
uncontradicted that Bowman was doing so.
Finally, I do not agree with the association's contention
that restriction 6, considered in context with all the other
restrictive covenants, "carr[ies] a certain meaning by definite
and necessary implication," Friedberg, 218 Va. at 665, 239 S.E.2d
at 110, that association approval is required for such a display
of articles outside Bowman's house. Indeed, a review of the other
restrictive covenants indicates otherwise.
When the author of the restrictive covenants intended to
restrict a lot owner's use of the lot itself, specific language
was employed to require that (1) the association approve building,
plot, landscaping, and pollution control plans, as noted above,
(2) lot owners not park or maintain any "vehicle of any type other
than conventional automobiles, jeeps and pickup trucks" on their
lots, (3) "[t]opographic and vegetation characteristics of
properties within Wintergreen shall not be altered by removal,
reduction, cutting, excavation or any other means without the
prior written approval of the [association]," (4) "[n]o trees,
shrubs or other vegetation may be removed without the written
approval of the [association]," (5) individual landscaping plans
of lots adjacent to the golf fairway and the ski slopes "shall be
in general conformity with the overall landscaping pattern" for
the golf course and ski slopes and subject to association
approval.
Applying the familiar maxim expressio unius est exclusio
alterius articulated in Turner v. Wexler, 244 Va. 124, 127, 418
S.E.2d 886, 887 (1992), I think that the enumeration of the
instances of association approval of a lot owner's use of the lot
excludes any implication that association approval is required for
the display of unattached personal property outside of its
buildings or structures. Therefore, I infer that if the developer
had intended to impose this restriction upon the lot owners, it
would have been specific in doing so, just as it had been in these
other instances.
Accordingly, I would enter a final judgment affirming those
parts of the final judgment that required association approval of
the neon signs and the articles attached to the building and
reversing those parts that required Bowman to remove the specified
items of personal property from his deck and yard.
This order shall be certified to the said circuit court and
shall be published in the Virginia Reports.
A Copy,
Teste:
David B. Beach,
Clerk