Inhabitants of Town of Boothbay v. National Advertising Co.

• Decision Date: 12 November 1975
• Citation: 347 A.2d 419,81 A.L.R.3d 474
• Parties: INHABITANTS OF the TOWN OF BOOTHBAY and State of Maine v. NATIONAL ADVERTISING COMPANY.
• Court: Maine Supreme Court

Page 419

347 A.2d 419

81 A.L.R.3d 474

INHABITANTS OF the TOWN OF BOOTHBAY and State of Maine v. NATIONAL ADVERTISING COMPANY.

Supreme Judicial Court of Maine.

Nov. 12, 1975.

Locke, Campbell & Chapman, by Frank G. Chapman, Lester A. Olson, Dept. of Transp., Augusta, for plaintiffs.

Marden, Dubord, Bernier & Chandler, by Albert, L. Bernier, Waterville, for defendant.

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

DELAHANTY, Justice.

The Town of Boothbay brought an action to enjoin defendant National Advertising Company from maintaining a billboard within the Town in violation of a Town ordinance. The Superior Court (Lincoln County) granted a permanent injunction and in so doing upheld the validity of the ordinance in question. The defendant appeals, and we deny the appeal.

The record on appeal presents a tale of two ordinances. In March, 1970, the Town of Boothbay passed an ordinance which would have compelled the removal of all of defendant's billboards within the Town that were located off of the premises of the business for which they advertised. Defendant sought to enjoin the Town from enforcing this ordinance, and in October, 1971, the Superior Court (Lincoln County) enjoined the Town from enforcing the ordinance. We do not believe that it is necessary to discuss the legal bases of the 1971 Superior Court injunction, except to say that the award of process against the Town purported to be a final and complete adjudication by the Superior Court.

The Town did not choose to appeal the adverse decision of the Superior Court. Instead, the Town officers submitted to the Town Meeting articles constituting a revision of the previous ordinance. The revision had been drafted and prepared with an eye to obviating the objections raised by the Superior Court in its 1971 injunction. On March 6, 1972, the Town Meeting duly adopted the revised ordinance, which by its terms was effective after December 31, 1972 against defendant's off-premise billboards.

By May, 1973, defendant had not yet complied with the revised ordinance. In March, 1973, defendant was informed by the State Department of Transportation that the annual State permit authorizing its billboard would not be issued, since it appeared to the Department that the advertising structure in question was not in conformity with existing municipal ordinances. See 32 M.R.S.A. § 2714. The Town and the Department then sought to enjoin defendant's maintenance of a billboard on the land of one Freemont Giles of Boothbay as a violation of the provisions of the ordinance. On March 1, 1974, the Superior Court granted the injunction. This appeal resulted, and issues as to the validity of the revised ordinance and of the 1974 injunction pursuant to that ordinance are now before this Court.

We think it relevant to summarize and discuss the revised sign ordinance adopted by the Town on March 6, 1972. In Section 1, 'Preamble and Purpose,' the ordinance declares that 'the proliferation of advertising signs along and beside the public ways of the Town constitutes a serious hazard to the motoring public.' The ordinance then cites the effect of the wayside signs as distractions to drivers, as obstructions of vision at curves and at other traffic hazard areas, and as despoilers of the natural scenic beauty of the Town and its countryside. Additionally, the preamble asserts the protection of the public safety and the promotion of the general welfare as grounds for the ordinance.

In its operation, the ordinance of March 6, 1972, effectively prohibits all off-premise billboards and advertising signs in the Town of Boothbay that are 'visible from a public way.' Exceptions are made for signs of a certain size that are displayed on the land of the owner's place of business and that are placed so as not to obstruct motorists' vision. The prohibitory sections ban all new nonconforming signs as of the date of the ordinance, which was effective immediately upon adoption. By the ordinance's terms '(a)ll existing display advertising signs now erected along any highway, street, road or private way and visible from a public way shall be removed not later than December 31, 1972.' Thus the ordinance purported to act in praesenti as well as in futuro and prescribed a tolerance period of 10 months for nonconforming signs extant at the effective date of the ordinance.

Defendant's present appeal argues three issues in the main:

(1) that the former adjudication and the 1971 injunction operate by res judicata and collateral estoppeal to compel a declaration of the invalidity of the present ordinance;

(2) that the ordinance lacks any clear, real, and substantial relation to a permissible purpose under the police power; and

(3) that the Town ordinance prohibiting all existing off-premise advertising signs is a taking of property without due compensation and unconstitutionally deprives defendant of vested property rights.

I.

Defendant urges that the present ordinance is substantially identical to its predecessor ordinance which was declared invalid and was enjoined by the Superior Court. Defendant argues that principles of res judicate and collateral estoppel apply to render the former adjudication a binding determination of the invalidity of the present ordinance. Defendant reasons that since the present ordinance is similar to its predecessor in language and effect, the former adjudication should operate as a bar to enforcement, at least as between these two same parties.

This is a horse soon curried. To reject defendant's argument we need not explore the recondite branches of res judicata and collateral estoppel. It is plain to us that principles of res judicata and collateral estoppel cannot control our consideration of the present appeal. Because one ordinance is invalidated as unenforceable to accomplish its purpose does not foreclose the municipality from seeking to accomplish a permissible purpose by permissible means. To hold otherwise would frustrate towns from revising or correcting ordinances which have been invalidated by the courts.

The previous ordinance was construed by a Justice of the Superior Court as a zoning ordinance. The present ordinance purports on its face to advance the permissible goals of public safety on the roads, regulation of potential traffic hazards, and the preservation of the natural beauty of the roadside in furtherance of the general welfare of the Town. The operative provisions of the ordinance consistently implement these goals by regulating or prohibiting advertising signs visible from public ways. No reason appears to suggest that the second ordinance on its face is a sham or an insubstantial realignment of words which would in actuality present the same cause of action between the same parties. In the absence of evidence compelling such a conclusion, there is to basis to apply principles of res judicata.

Similarly, we are not apprised of any material issue of fact or law singularly established in the former adjudication so as to be controlling or determined in the present appeal. Accordingly, there is no basis to apply principles of collateral estoppel.

II.

For the present ordinance to be a proper enactment within the police power of the plaintiff Town, the ordinance must conform to the enabling legislation by which the legislature has delegated police powers to the towns and cities of our State. Additionally, the ordinance must not be offensive to due process of law under the constitutions of Maine and of the United States

As pertinent to the present appeal, the police powers delegated by the legislature under 30 M.R.S.A. § 2151 are as follows:

A municipality may enact police power ordinances for the following purposes:

(1)(A) Promoting the general welfare; preventing disease and promoting health; providing for the public safety. . . .

(2)(A) Providing for the protection and maintenance of public ways and other public property.

It remains to determine whether the instant ordinance was duly enacted within these delegated powers and whether the ordinance is a constitutional application of these powers.

The Town urges that the present ordinance affecting billboards may be sustained as a provision for the protection of public ways under § 2151(2)(A). Alternatively, the Town urges that the ordinance may be sustained as reasonably promoting the public safety and the general welfare under the broad police powers of § 2151(1)(A). We do not think it necessary to distinguish between the statutory subsections to determine whether one or the other is the exclusive head from which derives the Town's right to regulate billboards under the police power. To the extent that the regulation of billboards may promote traffic safety by reducing accidents on the road or roadside, we do not think it implausible to ground the ordinance as a fair implication from the power to protect the public ways.

Whether it is reasonable for us to augment the ground of traffic safety with the broader claim to regulate billboards and advertising signs in the interest of the general welfare of the community we need not now decide.

Although variously expressed, it is established that the requirements of due process exact that the law shall not be unreasonable, arbitrary, or capricious and that the state's police power can be properly exercised only where there is a reasonable relationship to the public health, safety, morals, or welfare. State v. Rush, Me., 324 A.2d 748, 752 (1974). We examine the subject ordinance under the due process standard bearing in mind that there is a presumption favoring the constitutionality of state laws, and in determining the validity of municipal ordinances, their reasonableness will be presumed. Id. at 753.

Moreover, the burden is on the party challenging the ordinance to establish the complete absence of any state of facts which would support the need for the laws enacted by the municipality. It is not...