State v. Johnson

• Decision Date: 21 May 1970
• Parties: STATE of Maine v. R. B. JOHNSON and Mabel F. Johnson.
• Court: Maine Supreme Court

Page 711

265 A.2d 711

46 A.L.R.3d 1414

STATE of Maine v. R. B. JOHNSON and Mabel F. Johnson.

Supreme Judicial Court of Maine.

May 21, 1970.

Leon V. Walker, Jr., Asst. Atty. Gen., Augusta, for the State.

Clinton B. Townsend, Skowhegan, amicus curiae.

Robert W. Ferguson, Springvale, James R. Flaker, Portland, for defendants.

Before WILLIAMSON, C. J., and MARDEN, DUFRESNE, WEATHERBEE and POMEROY, JJ.

MARDEN, Justice.

On appeal from an injunction granted under the provisions of 12 M.R.S.A. §§ 4701-4709, inclusive, the Wetlands Act (Act), ¹ originating in Chapter 348 P.L 1967, which places restrictions upon the alteration and use of wetlands, as therein defined, without permission from the municipal officers concerned and the State Wetlands Control Board (Board). The Act is a conservation measure under the police power of the State to protect the ecology of areas bordering coastal waters. The 1967 Act has been amended in no way pertinent to the present issue except by Section 8 of Chapter 379 of the Public Laws of 1969, which authorized alternatively a mandatory injunction for the restoration of any wetlands previously altered in violation of the Act.

The appellants own a tract of land about 220 feet wide and 700 feet long extending across salt water marshes between Atlantic Avenue on the east and the Webhannet River on the west in the Town of Wells. Westerly of the lots fronting on Atlantic Avenue the strip has been subdivided into lots for sale. The easterly 260 feet approximately of the strip has been filled and bears seasonal dwellings. Westerly of this 260 foot development is marsh-land flooded at high tide and drained, upon receding tide, into the River by a network of what our Maine historical novelist Kenneth E. Roberts called 'eel runs,' but referred to in the record as creeks. Similar marsh-land, undeveloped, lies to the north and south of appellants' strip, and westerly of the River, all of which makes up a substantial acreage (the extent not given in testimony, but of which we take judicial notice) of marshland known as the Wells Marshes. Appellants' land, by raising the grade above high water by the addition of fill, is adaptable to development for building purposes.

Following the effective date of the Act, an application to the municipal officers, with notice to the Wetlands Control Board, for permission to fill a portion of this land was denied by the Board, an administrative appeal was taken and the case reported to this Court, which appears sub nom. Johnson v. Maine Wetlands Control Board, Me., 250 A.2d 825 (Case No. 1) and in which the constitutionality of the Act was challenged. We held, by decision filed March 11, 1969 that absent a record of evidence as to the nature of the land involved and the benefits or harm to be expected from the denial of the permit, the case would have to be remanded.

Subsequent to March 11, 1969 fill was deposited on the land in question, as the result of which the State sought an injunction, the granting of which brings this case before us on appeal (Case No. 2). It is stipulated that the evidence in this case should be accepted as the evidence lacking in (Case No. 1) and that the two cases be consolidated for final determination of both.

The record establishes that the land which the appellants propose to build up by fill and build upon for sale, or to be offered for sale to be built upon, are coastal wetlands within the definition of the Act and that the refusal by the Board to permit the deposit of such fill prevents the development as proposed. The single Justice found that the property is a portion of a salt marsh area, a valuable natural resource of the State, that the highest and best use for the land, so filled, is for housing, and that unfilled it has no commercial value.

The issue is the same in both, namely, whether the denial of permit (Case No. 1) and the injunction (Case No. 2) so limit the use to plaintiffs of their land that such deprivation of use amounts to a taking of their property without constitutional due process and just compensation. ²

Due Process

Due process of law has a dual aspect, procedural and substantive. 16 Am.Jur.2d, Constitutional Law § 548.

Procedurally, 'notice and opportunity for hearing are of the essence' Randall v. Patch, 118 Me. 303, 305, 108 A. 97, 98, and as attributed to Daniel Webster in the Dartmouth College case it is 'a law which hears before it condemns, which proceeds upon inquiry; and renders judgment only after trial.' Trustees of Dartmouth College v. Woodward, 4 Wheat (U.S.) 518, 4 L.Ed. 629, and see York Harbor Village Corporation v. Libby, 126 Me. 537, 539, 140 A. 382.

The guaranty of procedural due process requires no particular form of procedure. 16 Am.Jur. Constitutional Law § 549, and Green v. State, Me., 247 A.2d 117, (9) 121. The Act meets all requirements of procedural due process.

Substantively, 'the terms 'law of the land' and 'due process of law' * * * are identical in meaning.' Michaud v. City of Bangor, 159 Me. 491, 493, 196 A.2d 106, 108.

It is 'the constitutional guaranty that no person shall be deprived of * * * property for arbitrary reasons, such a deprivation being constitutionally supportable only if the conduct from which the deprivation flows is proscribed by reasonable legislation (that is, legislation the enactment of which is within the scope of legislative authority) reasonably applied (that is, for a purpose consonant with the purpose of the legislation itself).' 16 Am.Jur.2d, Constitutional Law § 550.

It is this substantive due process which is challenged in the Act. In this connection it must be noted that § 4704 (Footnote 1) by its terms equates a deprivation 'of the reasonable use' of an owner's property with 'an unreasonable exercise of police power.'

The constitutional aspect of the current problem is to be determined by consideration of the extent to which appellants are deprived of their usual incidents of ownership,-for the conduct of the public authorities with relation to appellants' land is not a 'taking' in the traditional sense. Our State has applied a strict construction of the constitutional provisions as to land. See Opinion of the Justices, 103 Me. 506, 511, 69 A. 627, and State v. McKinnon, 153 Me. 15, 20, 133 A.2d 885.

We find no constitutional definition of the word 'deprive,' Munn v. Illinois, 94 U.S. 113, 123, 24 L.Ed. 77, since the constitutionally protected right of property is not unlimited. It is subject to reasonable restraints and regulations in the public interest by means of the legitimate exercise of police power. 16 Am.Jur.2d, Constitutional Law § 363. The exercise of this police power may properly regulate the use of property and if the owner suffers injury 'it is either damnum absque injuria, or, in the theory of the law, he is compensated for it by sharing in the general benefits which the regulations are intended * * * to secure.' State v. Robb, 100 Me. 180, 186 60 A. 874, 876. The determination of unconstitutional deprivation is difficult and judicial decisions are diverse. Broadly speaking, deprivation of property contrary to constitutional guaranty occurs 'if it deprives an owner of one of its essential attributes, destroys its value, restricts or interrupts its common necessary, or profitable use, hampers the owner in the application of it to the purposes of trade, or imposes conditions upon the right to hold or use it and thereby seriously impairs its value.' 16 Am.Jur.2d Constitutional Law § 367. See also State v. Union Oil Company, 151 Me. 438, 446, 120 A.2d 708.

Conditions so burdensome may be imposed that they are equivalent to an outright taking, although the title to the property and some vestiges of its uses remain in the owner. East Coast Lumber Terminal, Inc. v. Town of Babylon, 174 F.2d 106, (5-7) 110 (2 CCA, 1949).

A guiding principle appears in the frequently cited case of Pennsylvania Coal Company v. Mahon et al., 260 U.S. 393, 413, 43 S.Ct. 158, 159-160, 67 L.Ed. 322 (1922) where Mr. Justice Holmes declared:

'Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts.'

'We are in danger of foregetting that a strong public deire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. As we already have said this is a question of degree-and therefore cannot be disposed of by general propositions.' At page 416.

See also Pumpelly v. Green Bay Company, 13 Wall. (U.S.) 166, 177-178, 20 L.Ed. 557 (1871).

Confrontation between public interests and private interests is common in the application of zoning laws, with which the Wetlands Act may be analogized, and the great majority of which, upon their facts, are held to be reasonable exercise of the police power. There are, however, zoning restrictions which have been recognized as equivalent to taking of the property restricted. See Frankel v. City of Baltimore, 223 Md. 97, 162 A.2d 447, (2) 451 (1960); City of Plainfield v. Borough of Middlesex, 69 N.J.Super. 136, 173 A.2d 785, 788 (1961), and Arverne Bay Const. Co. v. Thatcher, 278 N.Y. 222, 15 N.E.2d 587, (10-13) 591 (N.Y.1938).

The same result has been reached as to zoning laws which identify their purposes as ones of conservation. See Dooley v. Town Plan and Zoning Commission of Town of Fairfield, 151 Conn. 304, 197 A.2d 770,...