City of Saco v. Tweedie

• Decision Date: 14 January 1974
• Citation: 314 A.2d 135
• Parties: CITY OF SACO v. Priscilla J. TWEEDIE.
• Court: Maine Supreme Court

Page 135

314 A.2d 135

CITY OF SACO v. Priscilla J. TWEEDIE.

Supreme Judicial Court of Maine.

Jan. 14, 1974.

Ronald E. Ayotte, Saco, for plaintiff.

William P. Donahue, Biddeford, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

ARCHIBALD, Justice.

This is an appeal from a judgment of the Superior Court enjoining the defendant from maintaining, keeping and storing a mobilehome on property which she owns, and ordering her to 'forthwith remove from said premises any and all mobilehomes.' The action was instituted by the City of Saco premised on the proposition that the defendant's mobilehome, being in a 'C-1 Conservation District,' violated the city zoning ordinance because it was in an area where such use was prohibited.

The appellant advances two arguments in attacking the judgment. Initially, she urges that the Justice below improperely placed on the defendant the burden of proving the illegality of the city ordinance. Her second contention is that 'the prohibition or exclusion of mobilehomes by the City of Saco is not a legal exercise of legislative authority.'

Only two witnesses testified, namely, the Saco City Clerk and the City Building Inspector. The appellant presented to independent evidence.

The appellee, through the City Clerk, introduced the zoning ordinance. The record is clear that the City Clerk had with her in court the original records of the two 1968 meetings of the City Council at which this ordinance was adopted. She likewise had original records to indicate that the ordinance as it pertains to the issues of this case had never been amended. The Justice below, in a proper exercise of discretion, admitted the original ordinance as an exhibit but allowed it to be replaced on the record with a true and correct copy. Under those circumstances we are not concerned with whether the ordinance was proved in accordance with 30 M.R.S.A. § 2155, ¹ since the original records were properly before the Court.

The ordinance provides that 'mobilehome and trailer parks' are permitted uses in the 'C-1 Conservation District.' However, Article VI, § 604 of the ordinance provides:

'Mobilehomes and trailers: Mobilehomes and trailers, whether the wheels are attached or not, shall be permitted only in mobilehome and trailer parks as provided for by separate ordinance dealing specifically with mobilehome and trailer parks.' (Emphasis supplied.)

The separate ordinance referred to in this section was not made a part of the record.

As the record was thus postured, the Justice below faced undisputed testimony that the defendant was occupying a mobilehome on her own property in a C-1 Conservation District and in an area which was not a mobilehome and trailer park.

We said in Town of Windham v. LaPointe, 308 A.2d 286, 289 (Me.1973):

'There is a presumption in favor of the validity of an ordinance passed in pursuance of statutory authority, and every presumption is to be made in favor of the constitutionality of such an ordinance, but such presumption is not absolute. . . . The burden rests upon the party attacking the constitutionality of an ordinance, and the standard of proof is by clear and irrefragable evidence that it infringes the paramount law. . . .'

See also Buck v. Kilgore, 298 A.2d 107 (Me.1972). The presumption of the validity surrounding the ordinance before us is a disputable mandatory presumption and dictates the legal result reached by the Justice below unless evidence has been presented which rebuts it. As we recently said in Hann v. Merrill, 305 A.2d 545, 553 (Me.1973):

'If the mandatory presumption is not rebutted, it is the duty of the trier of the fact to accept the presumed fact as proved.'

The appellant introduced no evidence to indicate or even suggest that the ordinance had not been properly adopted or was otherwise invalid, and the Justice below very properly...