Frost v. Lucey

• Citation: 231 A.2d 441
• Parties: Elzada M. FROST et al. v. Barbara C. LUCEY d/b/a Cloyester.
• Decision Date: 07 July 1967
• Court: Supreme Judicial Court of Maine (US)

Page 441

231 A.2d 441

Elzada M. FROST et al. v. Barbara C. LUCEY d/b/a Cloyester.

Supreme Judicial Court of Maine.

July 7, 1967.

Jacob Agger, William K. Tyler, Portland, for plaintiffs.

Henry Steinfeld, and Robert A. Wilson, Portland, for defendant.

Before WILLIAMSON, C. J. and TAPLEY, MARDEN and DUFRESNE, JJ.

DUFRENSNE, Justice.

The defendant owner of The Cloyester, a summer hotel located on Cloyester Road in South Portland, Maine, appeals from a decree of a single Justice permanently enjoining the operation of the hotel other than between June 1st and October 1st of each year and substantially restricting its activities during the permissive summer operation.

It is undisputed that prior to defendant's purchase of the property in 1964 The Cloyester had been operated only as a summer hotel and the evidence fully supports the single Justice in his findings that the span of its yearly operation did not reach beyond the June 1st to October 1st period. Applying the 'clearly erroneous' test as we must, we further acknowledge ample support in the evidence for most of the other findings of the single Justice. In the critical year 1941, when the South Portland zoning ordinance was first enacted, The Cloyester became a nonconforming building and its operation as a hotel a nonconforming use, since it was located in a zone where only single family residences (with certain exceptions not pertinent here) were permitted. The hotel prior thereto had been operated as a relatively small business during the summer months only, guests staying for periods from a few days to several weeks. The dining room facilities fully satisfied the needs of the registered guests and were made available to transients coming in only to be served meals, but the management never made any effort to increase its dining room business for transients by advertisement or otherwise. At no time did the hotel cater to clubs or large parties. There was no problem with traffic in the area. As found by the sitting Justice, the defendant in 1964 began an expansion program designed to make the hotel operation economically profitable. With a purpose to increase the volume of business, a complete central heating system adequate to enable the hotel to render service on a year-round basis was installed at a cost exceeding $25,000; necessary alterations within the limits of the structure and with municipal approval were made, such as the removal of a partition to convert a previously used lounging room to serve as a dining facility. Aggressive solicitation campaigns have substantially increased the transient business, and the hotel has, since the changeover, catered to large parties in defendant's undertaking to serve luncheons, banquets and the like. Due to the increase in the volume of business, the noise level in the area has risen, especially when large parties were served, with resulting traffic congestion in the neighborhood.

The presiding Justice concluded that the operation of the hotel had changed markedly 'in quality and not merely in degree' and permanently enjoined the defendant from

'(a) Operating said hotel or offering to the public hotel and dining facilities therein other than between June 1st and October 1st of each year;

(b) Catering on the premises to parties or groups of transients (not registered and assigned to hotel rooms) where the number of persons in such parties or groups on the premises at any one time exceeds twenty-five; and

(c) Offering the facilities of the hotel to transient guests after the hour of 9:00 o'clock in the evening.'

The main issue before the Superior Court was whether and to what extent the present use and operation of The Cloyester was an unlawful extension or enlargement of the hotel nonconforming use under the South Portland zoning ordinance. This issue was raised by four taxpayers and owners of real estate lying contiguous to or in the immediate proximity of The Cloyester, two of whom were year-round residents, who sought in a declaratory judgment proceeding a judicial interpretation of the zoning ordinance and injunctive relief against what they contend is an illegal increase of a nonconforming use.

The stated points on appeal, besides the claim that the decision is against the law and the evidence, question the Court's decree as an individous trespass against our State Constitution in that it destroys defendant's vested rights to a nonconforming use and constitutes a taking of property without due process of law (undoubtedly meaning without just compensation). Constitution of Maine, Art. I, § 21.

The pertinent enabling legislation, (30 M.R.S.A. § 4953, which substituted for R.S.1954, c. 90-A, § 61, as enacted by P.L.1957, c. 405 § 1, as amended by P.L.1963, c. 193) reads as follows:

'1. Scope. A municipality which has a planning board (the evidence indicates that South Portland has) may enact a zoning ordinance dividing it into zones consistent with the proper development of the municipality. The zoning ordinance may regulate the following:

A. Location and use of real estate for industrial, commercial, residential and other purposes;

2. Part of plan. A zoning ordinance shall be drafted as an integral part of a comprehensive plan for municipal development, and promotion of the health, safety and general welfare of the residents of the municipality.

A. Among other things, it shall be designed to encourage the most appropriate use of land throughout the municipality; to promote traffic safety; to provide safety from fire and other elements; to provide adequate light and air; to prevent overcrowding of real estate; to promote a wholesome home environment; * * *

5. Application. A zoning ordinance does not apply to structures and uses existing at the time it is enacted, but applies to new structures and uses, and changes in structures and uses made afterward.

A. The changes in structure and use to which a zoning ordinance applies may be defined in the ordinance.

8. Nonconforming. Any real estate or personal property existing in violation of an ordinance authorized by this subchapter is a nuisance.'

The relevant portions of the South Portland zoning ordinance are as follows:

'Section 5-C. Non-conforming uses

1. Any lawful building or use of a building or premises or any part thereof existing at the time of adoption of this Ordinance may be continued, although such building or use does not conform to the foregoing provisions hereof. If such non-conforming use be abandoned for more than one year, any future use of said building shall be in conformity with the provisions of this Ordinance.

2. Such use may be changed to one having clearly the same character. Such building or use shall not at any time be changed to a dissimilar use not shall it be extended or enlarged, except for a purpose permitted in the zoning district in which such building or premises is situated. * * *

3. The reconstruction or restoration of any nonconforming building which may hereafter he destroyed or damaged by fire or other accidental cause is permitted, provided the extent of damage is less than 75 per cent of the assessed value of the building before the damage and provided further that the reconstruction or restored building covers no greater land area and has no greater floor area. Such restoration shall be permitted only if completed within one year from the date of the damage.'

The defendant has not challenged the right of the plaintiffs to maintain this suit for injunctive relief through declaratory judgment proceedings in their capacity of adjoining or nearby property owners and taxpayers who contend additionally that they are specially affected and injured by the alleged violation of the zoning ordinance and seek the enjoinment of a nuisance in law. We will assume, as the parties and the Justice below did, that the plaintiffs have legal standing in equity to restrain the alleged continued violation of the zoning law on the grounds that it amounts to a nuisance in law specially affecting them. See Whitmore v. Brown, 102 Me. 47, 65 A. 516, 9 L.R.A.,N.S., 868; Houlton v. Titcomb, 102 Me. 272, 66 A. 733, 10 L.R.A., N.S., 580; York Harbor Village Corporation v. Libby, 126 Me. 537, pages 546-547, 140 A. 382; Inhabitants of the Town of Windham v. Sprague, Me., 219 A.2d 548; 101 C.J.S. Zoning § 404.

The defendant in her efforts to show the lower court decree to be against the law and obtain complete relief therefrom has argued for the first time in this Court the defense of laches, estoppel or unconscionable failure to take timely action whereby defendant was lulled into spending a small fortune simply to be denied the fruits thereof at the plaintiffs' whims.

The defenses of laches, estoppel or 'any other matter constituting an avoidance or affirmative defense' must be pleaded affirmatively, Rule 8(c) M.R.C.P., or they will be considered waived, Rule 12(h) M.R.C.P. See also, Field and McKusick, Maine Civil Practice, Commentary, § 12.18. Furthermore, it is fundamental and a rule of general application in the concept of appellate practice that save for certain recognized exceptions, questions of error not raised and properly preserved in the trial court will not be considered on appeal. Existing issues between the parties should be properly raised by sufficient pleading at the trial level, and if a party desires the sitting Justice to take judicial cognizance of his contentions, he should give timely notice thereof during the trial and at the conclusion thereof once again call all such matters to the trial court's attention to the end that in fairness to the court and the opposing party opportunity may be had for proper determination of the action desired. Defendant's presently advanced matter in avoidance of plaintiffs' action should also have been particularized in her points on appeal. Failure so to state the same may be deemed waived under Rule 75(d) M.R.C.P. See under previous civil procedure, Moody v. Clark, 27 Me. 551 (1...