Casino Motor Co. v. Needham

• Citation: 151 Me. 333,118 A.2d 781
• Parties: CASINO MOTOR COMPANY v. John H. NEEDHAM, Edward E. Ross, Richard W. Holmes, Warren V. Grindle and Clarence M. Page. Substituted Respondents: Gerald J. Grady, Matthew McNeary, Leroy S. Nickerson, Dwight B. Demerritt and Vina P. Adams.
• Decision Date: 23 November 1955
• Court: Maine Supreme Court

Page 781

118 A.2d 781

151 Me. 333

CASINO MOTOR COMPANY v. John H. NEEDHAM, Edward E. Ross, Richard W. Holmes, Warren

V. Grindle and Clarence M. Page.

Substituted Respondents: Gerald J. Grady, Matthew McNeary,

Leroy S. Nickerson, Dwight B. Demerritt and Vina P. Adams.

Supreme Judicial Court of Maine.

Nov. 23, 1955.

Michael Pilot, Bangor, for petitioner.

John H. Needham, Bangor, for respondent.

Before FELLOWS, C. J., and WILLIAMSON, WEBBER, BELIVEAU, TAPLEY and TIRRELL, JJ.

TAPLEY, Justice.

On exceptions. The Town of Orono, Maine, in 1933 enacted a zoning ordinance by authority of the provisions of R.S.1930, Ch. 5, Secs. 137 to 144 inclusive. On November 14, 1951 the petitioner made application to the defendants, in their capacities as members of the Adjusting Board, for permission to erect a filling station within District Number 3, a residential district under the ordinance. The Board refused the permit after a hearing.

On motion, Gerald J. Grady, Matthew McNeary, Leroy S. Nickerson, Dwight B. Demeritt and Vina P. Adams were substituted as respondents in place of John H. Needham, Edward E. Ross, Richard W. Holmes, Warren V. Grindle and Charence M. Page.

Petitioner brought a petition for mandamus against the respondents to compel the issuance of the permit. The alternative writ was issued.

The respondents in their return and answer to the alternative writ set forth the following matters of law and fact as cause for not performing the acts named in the writ to be performed:

1. That the respondents say that the petitioner has established no legal right to said permit; that it does not appear to be the plain duty of the respondents to grant said permit; that it was for said respondents, acting as said adjusting board under said ordinance, to determine the fitness or unfitness of the use of said land for a filling station; that the exercise of their discretion was required in the matter and that such discretion was exercised in a correct and legal manner.

2. That the Court cannot compel the respondents to grant said permit by its writ of mandamus because the petitioner has an adequate specific legal remedy at law and one which is appropriate and exclusive to the particular circumstances of the case, namely, by an appeal from said Adjusting Board to the Superior Court as provided by R.S. of Maine, 1930, Chapter 5, Section 140, and acts amendatory thereof, and by Revised Statutes of 1944, Chapter 80, Section 89, and acts amendatory thereof.

A hearing was had before an Active Retired Justice of the Supreme Judicial Court. The Justice rendered judgment for the petitioner and in his decree made certain rulings of law and findings of fact and ordered the writ of mandamus to issue, to which rulings of law and findings of fact the respondents seasonably excepted.

The respondents contend that the rulings of law, namely:

'1. That the appeal Statute, to wit: R.S.1930, Chapter 5, Section 140, was repealed by the laws of 1943, Chapter 199, Section 6.

'2. Ordinances previously enacted remain in effect, but it was Section 140 of the Statutes which gave the right of appeal and the Statute was repealed.

'3. That the Ordinance gave no appeal.

'4. The Statute having been repealed, there remains no appeal.

'5. That there can be no doubt that the repeal of the Statute of 1930, by the laws of 1943 defeated all rights of appeal under the former.'

are erroneous.

They further say, in contention, that the Justice below made findings of facts that were not supported by the evidence.

Exceptions to Rulings of Law

The respondents contend that there exists a right of appeal from the findings of the Selectmen constituting an Adjusting Board and that the petitioner should have proceeded by appeal rather than mandamus.

The petitioner in answer asserts that the law provides no method of appeal in this case and that mandamus is the proper procedure.

The Town of Orono in the year 1933 enacted a zoning ordinance authorized by provisions of an enabling statute, being R.S.1930, Ch. 5, Secs. 137-144 inclusive. Sec. 140, as amended by P.L. of 1939, Ch. 127, Sec. 1, provided an appeal from the Municipal Officers or Board of Zoning Adjustment to the Superior Court.

The Orono Zoning Ordinance has no provisions regarding appeal from the decisions of the Selectment constituting an Adjusting Board.

Ch. 199, Sec. 6 of the P.L. of 1943, in part, reads as follows:

'Sec. 6. Relation to other acts. Sections 137 to 144, inclusive, of chapter 5 and sections 31 and 32 of chapter 27 of the revised statutes, as amended, are hereby repealed. In a municipality not having a planning board, ordinances and regulations previously enacted under such sections shall continue in full force and effect and may be amended in accordance with the provisions of such sections until said ordinances and regulations are repealed or superseded by ordinances or regulations under sections 1 to 5, inclusive.'

The words are clear and unambiguous that Secs. 137 to 144, inclusive, of Ch. 5, as amended, are repealed. This includes obviously Sec. 140 and its amendments, being the appeal section. The provision in Sec. 6:

'In a municipality not having a planning board, ordinances and regulations previously enacted under such sections shall continue in full force and effect and may be amended in accordance with the provisions of such sections until said ordinances and regulations are repealed or superseded by ordinances or regulations under sections 1 to 5, inclusive.'

does not affect the repeal of Secs. 137 to 144, inclusive, excepting that it permits a municipality, such as the Town of Orono, to continue with its zoning ordinance which is unaffected by repeal of the mother statute. This is a saving clause and does not disturb the repealing act in so far as the appeal section is concerned. 50 Am.Jur. Statutes, Sec. 527.

In view of the fact that there are no appeal provisions in the zoning ordinance and the appeal section of the statute was repealed, there was no provision under which the petitioner could have proceeded by appeal.

The finding of the Justice below as to rulings of law was correct and this exception is overruled.

Exceptions to Findings of Fact

The respondents in these exceptions assert there was no evidence to sustain certain material findings of fact establishing the bounds of the residential zone, and in particular they object to the vital ruling that the ordinance insofar as it placed the land in question in the residential zone was unconstitutional, hence invalid.

In our view it is not necessary that we pass upon these exceptions. Assuming the Court was correct in the findings of fact and in the ruling that the ordinance was invalid, nevertheless it appears that mandamus is not a lawful remedy for the errors so established.

The Adjusting Board of the Town of Orono was created and receives its authority under provisions of the Zoning Ordinance of the Town of Orono. Section 8 of the Zoning Ordinance reads as follows:

'The Selectmen shall constitute an Adjusting Board, who shall hear and adjust complaints and shall determine the fitness and unfitness of various uses and other matters pertaining to the operation of this ordinance.'

It is to be noted that one of the functions of the board is 'shall determine the fitness and unfitness of various uses.' This means that the board has the right to grant variances. The members of the Adjusting Board are clothed with the power of determination of questions of fitness and unfitness of various uses of property coming under the provisions of the zoning ordinance. Their powers are discretionary in this respect. The petitioner unsuccessfully applied to the Adjusting Board for a 'permit', to use the words of the parties, for a variance from the zoning restrictions in a lawfully established residential zone. We have seen that it had no appeal from such decision. It now demands the same permission from the same Board on a different ground, namely, that the ordinance insofar as it affects this land is invalid. The petitioner in its application for a writ of mandamus prays that a writ of mandamus issue commanding the members of the Adjusting Board to issue their permit allowing the petitioner to erect and maintain buildings on its land to be used as a filling station. The alternative writ alleges that on the fourteenth day of November, 1951 the petitioner made application to the Adjusting Board for a permit to erect and maintain a filling station on its land. The respondents in their return and answer to the alternative writ stated that it was not their duty to grant the permit and that they were acting as an Adjusting Board under the ordinance for the purpose of determining the fitness or unfitness of the use of the land for a filling station; that the exercise of their discretion was required and that the discretion was exercised in a correct and legal manner.

We again refer to Section 8 of the ordinance and find there is nowhere in this section authority on the part of the Adjusting Board to issue a 'permit of any kind.' In so far as the facts in this case are concerned, the authority of the board is confined to the determination of 'the fitness and unfitness of various uses.' The record is silent as to whether or not there exists in the Town of Orono any public officer such as building inspector whose duty it would be to issue permits for the construction of buildings. There is a marked distinction between an application for a permit to build and an application seeking a variance of a zoning law. It is not necessary as we have suggested to determine in this proceeding whether the ordinance in the part under consideration is valid or invalid. If it is valid and the land is lawfully within the residential zone, subject to restrictions against filling stations, then without question the decision of the Adjusting Board denying a variance must stand. The fact that no appeal is provided from the Adjusting Board to...