City of Rutland v. Keiffer

• Decision Date: 01 December 1964
• Docket Number: No. 1049,1049
• Citation: 124 Vt. 357,205 A.2d 400
• Parties: CITY OF RUTLAND v. Theodore KEIFFER and Catherine Keiffer.
• Court: Vermont Supreme Court

Page 400

205 A.2d 400

124 Vt. 357

CITY OF RUTLAND v. Theodore KEIFFER and Catherine Keiffer.

No. 1049.

Supreme Court of Vermont.

Dec. 1, 1964.

Sullivan & Battles, Rutland, for plaintiff.

Williams & French, Rutland, and Gilbert Myers, Poultney, for defendants.

Before HOLDEN, C. J., and SHANGRAW, BARNEY SMITH and KEYSER, JJ.

KEYSER, Justice.

This is a petition in chancery for a declaratory judgment to have determined the respective rights of the parties under certain provisions of the zoning ordinance and amendments of the plaintiff, City of Rutland.

The petition requested the court below to decide three questions.

1. (a). Whether the original zoning ordinance of the City of Rutland entitled 'Municipal Zoning Ordinance of the City of Rutland, Vermont' enacted in 1948 applied to mobile home parks?

(b). If so, in what manner?

2. (a). Whether the subsequent amendment to the original zoning ordinance entitled 'Amendment to the Municipal Zoning Ordinance of the City of Rutland, Vermont' effective as of December 16, 1959, which ordinance among other things requires the operator of a mobile home park to obtain a license before operating a mobile home park applies to Defendant or Defendants prior to its enactment?

3. (a). Whether the amendment to the amended ordinance entitled 'An Amendment to the Municipal Zoning Ordinance of the City of Rutland, Vermont, as Amended' effective on or about July 16, 1961 applies to Defendant or Defendants mobile home park?

(b). If so, in what manner?

An agreed statement of facts was filed upon which the court entered its decree.

The defendants were granted leave to appeal from the decree before final judgment (12 V.S.A. § 2386) and the above questions were certified to this court for review.

The power of a municipality to accomplish zoning exists by virtue of the authority delegated from the state. Thompson v. Smith, 119 Vt. 488, 129 A.2d 638.

The Municipal Zoning Act was passed by the legislature in 1931 and delegated the power to zone to a municipality to promote the health, safety or general welfare of the community. No. 55, Acts of 1931.

The law is well settled that municipal zoning ordinances are constitutional in principle as a valid exercise of the police power when reasonably related to public health, safety, morals, or general welfare. Rhyne, Municipal Law § 32-2; Schneider v. Board of Appeals, 402 Ill. 536, 84 N.E.2d 428; Anno. 22 A.L.R.2d, at pp. 780-782. The plaintiff city enacted a Municipal Zoning Ordinance on January 24, 1948, effective March 2, 1948, under the authority granted by the provisions of Chapter 153 of the Public Laws of Vermont, sections 3723-3747, now Chapter 67, 24 V.S.A. §§ 3001-3026.

The defendants established a trailer or mobile home park on their property located on Allen Street in the City of Rutland in May, 1952. Although the agreed facts do not so state, both parties are in agreement that Allen Street is zoned in an industrial district, and we so treat it. Effective December 16, 1959, plaintiff city by its Board of Aldermen passed an amendment to the city's zoning ordinance by adding thereto a new section, section 23, relating specifically and solely to mobile home parks. This amendment was amended effective about July 16, 1961. Section 23 and the amendment thereof substantially follow the terms of the enabling act, 24 V.S.A. §§ 2231-2233, the validity of which is not questioned or attacked here.

The ordinance and amendments are neither exhibits nor specifically found as facts. However, in view of the statements of counsel, both in their briefs and arguments, and the appendage of them to defendant's brief, we likewise consider them as being a part of the record before us. The original zoning ordinance does not mention or refer to the subject of house trailer or mobile home parks as such by name or definition.

The first question is whether the original zoning ordinance of 1948 applies to mobile home parks. The court below decreed:

'The original zoning ordinance of the City of Rutland enacted in 1948 does not apply to Mobile Home Parks as such but applies to the individual units. If the unit is a Mobile Home as defined in the subsequent amendment it would then be a dwelling house; if a trailer as defined by the amendment it would not be a dwelling house.'

The defendants urge the court was in error in holding that the 1948 zoning ordinance applied to the individual units. The plaintiff contends the ruling of the court in its entirety was correct.

Zoning ordinances are to be strictly construed for the reason that they are in derogation of common law property rights. In re Willey, 120 Vt. 359, 365, 140 A.2d 11. The zoning measure will be construed to give the words used their ordinary meaning and significance, 8 McQuillan, Municipal Corporations § 25.71, and where no definition of a word is given in an ordinance, it must be given its commonly accepted use. In re Willey supra, p. 361, 140 A.2d 11. The test to determine whether the zoning ordinance applied to house trailers or mobile home parks depends upon the intention of the Board of Aldermen when it passed the ordinance. City of Manchester v. Webster, 100 N.H. 409, 128 A.2d 924.

The amendment to the zoning ordinance specifically relates to trailer or mobile home parks and was passed eleven years after the original ordinance. Considering this fact together with the lack of reference to house trailer or mobile home parks in the 1948 ordinance, it is clear that there was no intention on the part of the city to regulate or control by zoning house trailer or mobile home parks. As to this, we agree with the decree.

The court below further held that the 1948 ordinance applied to the individual units. The court decreed that such unit was or was not a dwelling house according to the definitions of trailer and mobile home given in the 1959 amendment. These are Sections 23(1)(D) and (G) respectively. The character of the unit depends solely upon the interpretation of the provisions of the original ordinance, not upon, or aided by, a definition given to it some eleven years subsequent to 1948.

Section 2 of the 1948 ordinance provides that existing use of buildings and structures and of land is not affected by the ordinance. Section 3 permits the continuance of any nonconforming lawful building or structure, or the use thereof and of land. Since defendants' trailer or mobile home park was established nearly five years after the original zoning ordinance was passed, these two sections are, of course, not in point on this first question.

Section 10 of the 1948 ordinance states '* * * the following shall be permitted in all portions of the city within the Business B district and Industrial classifications, * * * subject to the provisions of other sections of this ordinance and to the usual sanitary and health requirements: * * * (14) The renting of over-nite cabins and space for automobile trailers provided the set-back and side yard provisions for residence B districts are complied with. * * *' (Emphasis added.)

Here, we find a specific reference in this section to automobile house trailers. The words 'mobile home' are of more recent origin, undoubtedly because it has more sales appeal in the trade. Further, it is common knowledge that a great improvement has been made in the construction of, and equipment and facilities in, mobile house trailers. But a mobile home is nothing more or less than automobile house trailer. Both are designed and built as a moveable family dwelling. Whether they are placed on a location for use as a temporary, semipermanent, or permanent dwelling depends on the circumstances of each case.

There are no findings here as to the type of construction of the trailer or mobile homes on defendants' land, the foundation on which they rest, connections to necessary utilities, and the use made of them. However, we may assume here that the defendants' trailer park was used to accommodate house trailers or mobile homes moved upon a site in the park more or less for temporary occupancy. The temporary nature of such occupancy is to be distinguished from a permanent location of the trailer on a lot for residential purposes as was the case in In re Willey, supra.

Section 11 of the original ordinance relates to Industrial districts and provides in sub-paragraph 2 that all buildings used exclusively for residential purposes in such districts shall conform to the minimum lot size and yard regulations for dwellings in Residence B districts (section 14).

In construing zoning ordinances special provisions relating to subjects will control over general provisions. Rhyne, Municipal Law §§ 9-12, p. 244; 50 Am Jur. Statutes § 249, pp. 244-246. Accordingly, it is clear that section 11 does not apply to the defendants' trailer park or the units therein. Section 10(14) specifically grants a permissive use of land for the purpose of renting space for automobile house trailers. That section controls here over the general provisions of section 11. In re Downer's Estate, 101 Vt. 167, 177, 142 A. 78.

The defendants were in compliance with the original ordinance in developing their land for the purpose of renting space for automobile house trailers provided, of course, their park as a whole met the setback and side yard provisions required by section 10(14). The court below erroneously decreed that the 1948 ordinance applied to the individual units in defendants' trailer park.

The second question is whether the amendment to the original zoning ordinance requiring a mobile home park operator to obtain a license to operate it and the amendment to this amendment apply to the defendants.

The decree of the court is:

'The subsequent amendment effective December 16, 1959 requiring a license applies to any Mobile Home park operating prior to the effective date of the amendment nad as this Mobile Home park was in operation prior to the effective date of the amendment it still is...