City of Barre v. Brown
| Decision Date | 03 May 1960 |
| Docket Number | No. 1885,1885 |
| Citation | 121 Vt. 469,160 A.2d 885 |
| Court | Vermont Supreme Court |
| Parties | CITY OF BARRE v. Robert BROWN. |
Reginald T. Abare, Barre, for plaintiff.
Gelsie J. Monti, Barre, for defendant.
Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.
Robert Brown was found guilty of violating the municipal zoning ordinance of the City of Barre. The six specific charges against him alleged, in substance, that on certain dates he used and occupied the premises owned by him on Farwell Street for commercial purposes contrary to the provisions of 'An Ordinance in Relation to Municipal Zoning' which designated the area in which his land was located as a residential zone.
The case was heard on an agreed statement of facts which authorized the trial judge to take a view of the premises and of the general area. No other evidence was introduced. The court made findings of fact, somewhat less extended than the agreed statement of facts, but such as to disclose the following situation. On Feb. 3, 1950 the City of Barre adopted a municipal zoning ordinance which had incorporated in it a plan dividing the city into three separate areas: Industrial, Commercial and Residential. According to this plan, Farwell Street, in its entirety, is located in the residential zone. The defendant has had title to his premises on this street since December 10, 1956 and he has occupied them since April 1, 1955. It was on the latter date that he first leased from his immediate predecessors in title, Ray and Iona Churchill, whose title dates back to December 1940. The Churchills operated a long distance granite trucking company with I.C.C. rights and in connection with it they temporarily parked trucks loaded with granite or coal in the yard of their home on Farwell Street and took orders by telephone relative to their business at that point. At no time during their occupancy did the Churchills carry on a general automobile repair business nor did they carry on a new, used or junk car business on the premises. The defendant, on the other hand, since April 1, 1955, has carried on a general auto repair garage and has dealt in used and junk cars on the premises, and has, since 1956, carried on a regular commercial business of buying and selling motor vehicles. The uses made by the defendant of the premises were not among those specified in section 3 of the zoning ordinance as being permitted in a residential zone. The court determined that Brown was in violation of the zoning ordinance and that he was guilty as charged, and judgment was entered accordingly. From this judgment, the defendant comes here with his appeal.
The first question briefed for our consideration relates to pleading. The respondent claims that the charges against him are defective for the reason that there is no averment as to the adoption of the ordinance claimed and that the penal section is not set forth. These arguments are not for our consideration because they were not urged in any form below. The trial court was never presented with an opportunity to rule on the matter by demurrer or otherwise. State v. Ball, 119 Vt. 306, 309, 126 A.2d 121. A claim not made below, but made here for the first time is here for consideration. Latchis v. State Highway Board, 120 Vt. 120, 127, 134 A.2d 191. Although exceptions are unnecessary under the new procedure Act (12 V.S.A. § 2381), a party must either object at the time a ruling on a question of law is made below or make known the action which he desires the court to take, otherwise there is nothing for this Court to consider or review.
Next, the defendant urges that the evidence presented was insufficient to permit the court below to find him guilty beyond a reasonable doubt. The gist of his argument is that 'there was no evidence introduced to show that on the dates specified in the counts (Oct. 27 and 29, 1958) the respondent, in fact, occupied or used the said premises not alone for the purposes allegedly in violation of the said ordinance, but for any purpose whatsoever.' In the agreed statement of facts however, we find the following:
'When the said Brown first occupied said premises he kept on said premises motor vehicles for sale and has repaired the same in said room which is most northerly of said rooms attached to said dwelling house which has been used as a garage by him since he has been on the premises.' (Emphasis supplied).
We think that not only as a matter of ...
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