Town of Glocester v. Olivo's Mobile Home Court, Inc.

• Court: Rhode Island Supreme Court
• Writing for the Court: KELLEHER; POWERS
• Citation: Town of Glocester v. Olivo's Mobile Home Court, Inc., 300 A.2d 465, 111 R.I. 120 (R.I. 1973)
• Decision Date: 12 February 1973
• Docket Number: No. 1447-A,1447-A
• Parties: TOWN OF GLOCESTER v. OLIVO'S MOBILE HOME COURT, INC. ppeal.

Page 465

300 A.2d 465

111 R.I. 120

TOWN OF GLOCESTER v. OLIVO'S MOBILE HOME COURT, INC.

No. 1447-Appeal.

Supreme Court of Rhode Island.

Feb. 12, 1973.

Bradley L. Steere, Town Solicitor, Glocester, for plaintiff.

Louis A. Geremia, Providence, for defendant.

OPINION

KELLEHER, Justice.

The defendant corporation is the owner and operator of a mobile home park located in the town of Glocester on land which is situated on the easterly side of Chopmist Hill Road just north of the junction of that highway and Pound Road. The parcel contains approximately 38 acres. In this action, the town seeks to enjoin the corporation from violating a provision found in both its licensing and zoning ordinances ¹ which limits the number of mobile homes that can be parked in such a facility to 30. The defendant filed an answer which in essence challenges the constitutionality of the 30-unit limitation and asked that the town be restrained from interfering with 'its right' to operate a mobile home park containing more than 30 units. A hearing was held before a justice of the Superior Court. The trial justice, in upholding the limitation, alluded to the public health problems which are not found in 'conventional habitation.' Judgment was entered ordering the defendant to reduce the number of units parked on its premises to 30 and to obtain the requisite license. This appeal ensued and to put it in its proper focus, we will set out just a few of the pertinent facts found in the record.

Mobile homes first occupied the attention of the town council during the last days of summer 1960. Earlier that year, the General Assembly had authorized the council to adopt an ordinance which would license the operation of mobile home parks and regulate the use of a mobile home ² whether it was placed along with other mobile homes in a park or parked by itself elsewhere in the town. The first mobile home ordinance was enacted on September 9, 1960. One of the first licensees was Clarence Esty. In 1963, he sold his mobile home park to Pasquale J. Olivo. The council approved the transfer of the license from Esty to Olivo, who then formed the defendant corporation and transferred title of his newly acquired parcel to the corporation. Since 1964, any municipal licenses which have been issued concerning this commercial endeavor have been issued in the corporation's name.

In May, 1965, the council made several substantial changes in its mobile home ordinance. All mobile homes had to be located in a park. The maximum number of mobile homes that could be serviced at any given time in any park was 30. About five months later, in October, 1965, the town council reinforced its restrictive efforts relative to the immobilized mobile home by enacting a zoning ordinance in which the use of mobile homes was prohibited except that any mobile home park then in existence could continue and expand so long as its expansion did not exceed the 30-unit limitation found in the licensing ordinance. There were at that time three such parks in the town. Any potential mobile home park operator who might wish to locate in Glocester now found himself in the same zoning category as the manufacturer of fertilizer, the distiller of tar, or the owner of a commercial piggery.

In reviewing the action taken by the Glocester Town Council in 1965, we would first observe that its mobile home licensing ordinance affects the utilization of property and not just the activities conducted thereon and hence qualifies as a quasi zoning regulation ³ within the meaning of Town of Scituate v. O'Rourke, 103 R.I. 499, 239 A.2d 176 (1968). Consequently, its constitutionality may be considered along with the zoning ordinance as part of a coordinated scheme to insure that no more than 90 dwellings in the mobile home classification are within the town at any time. We shall first direct our attention to the validity of the 30 mobile home limitation per park.

The common law permitted one to use his property in a manner and for such purposes as he chose so long as he did not maintain a nuisance or injure others. This right, however, has been made subject to regulations, restrictions and control by the state through the legitimate exercise of its police power. The test of legitimacy is the existence of a reasonable relationship between the exercise of this power and the public health, safety, morals and general welfare. A zoning limitation which is not so related represents a confiscation of private property without just compensation. See Goldstein v. Zoning Board of Review, 101 R.I. 728, 227 A.2d 195 (1967); Buckminster v. Zoning Board of Review, 69 R.I. 396, 33 A.2d 199 (1943); Robinson v. Town Council, 60 R.I. 422, 199 A. 308 (1938). When measured by these standards, the limitation of 30 mobile homes as applied to Olivo is patently unconstitutional. We have made this determination realizing full well that a duly enacted ordinance carries with it a presumption of constitutionality which will disappear only on a contrary showing beyond a reasonable doubt. City of Providence v. Stephens, 47 R.I. 387, 133 A. 614 (1926). However, such a principle does not permit us to adopt an ostrich-like stance by burying our heads in the sand and ignoring the obvious.

The state plays a paramount role in the establishment of a mobile home park. General Laws 1956 (1968 Reenactment) ch. 21 of title 23 charges the Rhode Island Department of Health with the responsibility of licensing such a facility only after the department's director is convinced the proposed operation poses no threat to the public health. See Hester v. Timothy, 108 R.I. 376, 275 A.2d 637 (1971); Town of Little Compton v. Round Meadows, Inc., 108 R.I. 478, 276 A.2d 471 (1971). A departmental field supervisor testified that in November, 1970, there were 56 mobile homes in Olivo's park. His prime concern was Olivo's failure to observe the municipal limitation of 30 units. In presenting this witness, the town conceded that it was not attempting to show the existence of any peril to the public health.

While elimination of congestion is commendable, the limitation of 30 is applied with a broad brush. It matters not what the individual acreage of any of the three parks in Glocester might be. If it is 3, 30 or 300 acres, the limitation remains the same. It is utterly beyond the bounds of reasonableness for the identical limit to be applied to three different parcels of land located in three different parts of the town.

The restrictive steps taken by the Glocester Town Council give us an opportunity to examine the motives of those who call their mobile house a home. We are told that 'Recent population increases, coupled with the apparent inability of the United States housing industry to overcome problems of tight money, galloping costs, and labor shortages, have resulted in a serious undersupply of new single family dwellings in the low to middle price ranges. These conditions have caused a rapid expansion of the mobile home industry. Derived from this is a demand for more mobile home parks, whose expansion has been frustracted by public pressure, municipal policies, and zoning restrictions which attempt to keep mobile homes and mobile home parks out of a given area.' Van Iden, Zoning Restrictions Applied to Mobile Homes, 20 Clev.St.L.Rev. 196 (1970). It is believe that today one out of every five new single-family dwellings is a mobile home and that this fraction will increase. Note, The Community and the Park Owner Versus the Mobile Home Park Resident: Reforming the Landlord-Tenant Relationship, 52 B.U.L.Rev. 810 (1972). It is obvious that a mobile home park can no longer be primarily classified as a gathering place for a group of nomads who wander hither, thither and you over the highways and byways. We cannot assume that an occupant of a mobile home poses any greater threat to the public safety than the other inhabitants of a municipality who might live in a more conventional type of residence. Many years ago, this court observed that a gasoline filling station was not a nuisance per se. Sundlun v. Zoning Board of Review, 50 R.I. 108, 145 A. 451 (1929). Today, the same sentiments can be expressed about a mobile home park.

The municipality's contention, that its limitation of 30 units constitutes an effort to lessen congestion, seems to be a diplomatic way of expressing its real concern, that of finding some way to maintain the population of its schools at a point where a stable tax rate can be preserved. We do not believe that a zoning ordinance was ever intended to fulfill such a function. Rhode Island, like its sister states, has witnessed the exodus from the cities to the suburbs. Our state is often described as the 'City-State.' A motorist may, because of our modern expanded system of highways, travel from one end of Rhode Island to its extreme opposite end in the matter of just one hour. Glocester is a pleasant rural area. By automobile, it lies just about 25 minutes to the west of our capital city, Providence. Its 1965 zoning ordinance sets up four zones-agricultural, residential, commercial and industrial. The bulk of the town is zoned for agriculture. The commercial classification is subdivided into two categories-neighborhood commercial and highway commercial. Most commercial establishments are to be found along United States Route 44. Even though the council provided an industrial zoning classification, the zoning map, which is part of the ordinance, shows that no part of the town has been zoned industrial.

The 30-mobile home limit might be considered as one type of exclusionary zoning. ⁴ Its enactment brings to mind the following pertinent comment made by Mr. Justice Roberts speaking for the majority of the Pennsylvania Supreme Court in National Land & Investment Co. v. Easttown Township Board of Adjustment, 419 Pa. 504, 532, 215 A.2d 597, 612 (1965):

'The question posed is whether the township can stand in the way of the natural...