Buck v. Kilgore

• Decision Date: 20 December 1972
• Citation: 298 A.2d 107
• Parties: Lester L. BUCK et al. v. Ralph T. KILGORE et al.
• Court: Maine Supreme Court

Page 107

298 A.2d 107

Lester L. BUCK et al. v. Ralph T. KILGORE et al.

Supreme Judicial Court of Maine.

Dec. 20, 1972.

Richard A. Dvis, Portland, for plaintiffs.

Wilson, Steinfeld, Murrell & Lane by Henry Steinfeld, Portland, for defendants.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK, and ARCHIBALDN, JJ.

ARCHIBALD, Justice.

The instant case, which comes before the Law Court 'on report' pursuant to M.R.C.P., Rule 72(b), ¹ presents a single issue: Whether section 3-2-24.7 of the 'Flammable Liquids' ordinance enacted by the City of South Portland which does not allow automobile service stations within 2,000 feet of places of public assembly is a valid exercise of the police power. We answer in the negative.

The parties having agreed, the single Justice below issued the following order:

'It is Ordered that this action be reported to the Law Court which Court shall, upon the complaint, stipulations, exhibits, and upon so much of the evidence adduced as is legally admissible, render such decision as the rights of the parties require.' ²

Since the case in its entirety is thus before us we have a dual obligation. We must, in addition to deciding the questions of law involved, evaluate the admissible evidence and draw therefrom such factual inferences and conclusions as are necessary to reach the 'final decision' contemplated by Rule 72(b). Vachon v. Inhabitants of Lisbon, 295 A.2d 255 (Me.1972). Otherwise stated, the Law Court is required to determine both the facts and their application to the legal principles involved. ³ See Dansky v. Kotimaki, 125 Me. 72, 130 A. 871 (1925).

The plaintiffs are property owners in South Portland and the defendants were members of the South Portland City Council. Plaintiffs requested and were granted an exception to the City's zoning ordinance for the purpose of constructing an automobile service station. However, their subsequent application for a permit to handle flammable liquids was disapproved by the building inspector and the Chief of the Fire Department on the ground that, because of the proposed location, the station would be in violation of the proximity requirements of the flammable liquids ordinance.

The defendants sustained the building inspector and the plaintiffs subsequently sought Superior Court review pursuant to M.R.C.P., Rule 80B(a). The present 'report' to the Law Court is an alternative method for obtaining appellate review of the acts of a governmental agency and is authorized by M.R.C.P., Rule 80B(d). ⁴

The flammable liquids ordinance provides:

'3-2-7 FLAMMABLE LIQUIDS

3-2-7.1 No permit shall be granted or issued for the handling or use of flammable liquids by any firm or corporation until the plans, specifications, and location of the facilities for handling the flammable liquids shall have been approved by the chief officer of the Fire Department and he has made a recommendation therefore to the City Council. Such recommendation shall be in writing and shall briefly set forth the reasons for the recommendation or lack thereof.'

'3-2-24.7 No automobile service station shall be allowed within 2,000 feet of schools, churches, theatres, or other places of public assembly.'

This ordinance was enacted by the City of South Portland pursuant to 30 M.R.S.A. § 2151, which authorizes the adoption of police power ordinances for the purpose of 'promoting the general welfare . . . and . . . providing for the public safety.' Even though such police power ordinances frequently infringe or restrict the private use of property,

'(i)f the use is actually and substantially an injury of the public interest . . . a (regulation) . . . or ordinance . . . if itself reasonable and not merely arbitrary, and not violative of any constitutional limitation, is valid. It is not a deprivation of property which the Constitution forbids, but an enforcement of a condition subject to which the property is held.'

Inhabitants of York Harbor v. Libby, 126 Me. 537, 540-541, 140 A. 382, 386 (1928). Thus, private property rights are not absolute but are 'held subject to the implied condition that (they) shall not be used for any purpose that injures or impairs the public' interest. Id. at 540, 140 A. at 385.

This Court has long recognized a presumption favoring the validity of municipal ordinances but has recognized that this presumption is not absolute. In Donahue v. City of Portland, 137 Me. 83, 86, 15 A.2d 287, 288 (1940), the Court held:

'As a general rule, it may be stated that there is a presumption in favor of the validity of an ordinance passed in pursuance of statutory authority.

'Every presumption is to be made in favor of the constitutionality of such an ordinance, and it will not be declared unconstitutional without clear and irrefragable evidence that it infringes the paramount law.' St. Johnsbury v. Aron, 103 Vt. 22, 151 A. 640.'

Furthermore, our Court has held that if the ordinance on its face is reasonable, 'the objecting party must produce evidence to show that it is, in fact, unreasonable in its operation.' State v. Small, 126 Me. 235, 237, 137 A. 398, 400 (1927). The ultimate test of reasonableness is whether the regulatory means adopted by a municipality bears any rational relationship to the evil to be corrected. See Leathers v. Burns, 251 Or. 206, 444 P.2d 1010, 1015 (1968).

The language of section 3-2-24.7 distinguishes 'automobile service station(s)' from others handling or storing flammable liquids. Although all are required to obtain a permit to handle or store flammable liquids, only automobile service stations are automatically denied this permit if within 2,000 feet of 'places of public assembly.' Plaintiff contends that this distinction 'bears no reasonable relationship to the public's health, safety and welfare.'

The undisputed purpose of the South Portland ordinance is to minimize the danger to people and property from fires originating in automobile service stations. Given that as its purpose, it becomes clear that the validity of the ordinance rests upon a simple premise; namely, that automobile service stations pose a greater fire hazard than do other legitimate business enterprises which handle, use, or deal in the sale or storage of flammable liquids.

The plaintiffs, assuming the presumed validity of the ordinance, found themselves faced with the burden of proving by 'clear and irrefragable evidence' the factual inaccuracy of the underlying premise upon which the ordinance rests. They met this burden by the evidence which they presented and which was undenied, uncontroverted, and unrebutted by the defendants. We conclude that the plaintiffs have demonstrated by the standard required that there is no rational relationship between the storage of flammable liquids in automobile service stations and the prevention of fire in places of public assembly. In reaching this conclusion we feel it necessary to state only the ultimate facts in support thereof. Dansky v. Kotimaki, supra, 125 Me. at 73, 74, 130 A. at 872, 873.

The plaintiff introduced a map which, by applying a 2000 radius from known 'schools, churches, theatres or other...