Town of Milton v. Bert's Mobile Home Park, Inc.

• Court: Vermont Supreme Court
• Writing for the Court: Before HOLDEN; KEYSER
• Citation: Town of Milton v. Bert's Mobile Home Park, Inc., 278 A.2d 754, 129 Vt. 395 (Vt. 1971)
• Decision Date: 01 June 1971
• Docket Number: No. 47-70,47-70
• Parties: TOWN OF MILTON v. BERT'S MOBILE HOME PARK, INC.

Page 754

278 A.2d 754

129 Vt. 395

TOWN OF MILTON v. BERT'S MOBILE HOME PARK, INC.

No. 47-70.

Supreme Court of Vermont.

June 1, 1971.

Latham, Eastman & Tetzlaff, Burlington, for plaintiff.

John A. Burgess, Montpelier, for defendant.

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

KEYSER, Justice.

The warning of the 1966 annual town meeting of the Town of Milton contained the following item of business to be acted upon by the voters:

'Article 21. To see if the Town will enact an ordinance to regulate trailer parks as permitted by state law by Public Acts of 1957 Act No. 281, page 294.'

The town clerk's minutes of the meeting show that '(a)fter much discussion it was voted to pass Article 21 as worded.' On May 14, 1967, the selectment established a schedule of license fees as authorized under 24 V.S.A. § 2232(4).

The defendant has maintained a trailer park in the plaintiff town since April 1, 1967, containing from 85 to 90 mobile homes. He consistently refused to apply for a license as required by the ordinance and thus has not paid any license fees. This suit was brought in Chittended County Court to collect the fees due under the provisions of the ordinance.

The court in its findings stated that it 'sustains the oral motion made by the Defendant to dismiss because it is unable to find that the warning of the annual Town Meeting contained language sufficiently clear and complete to apprise the towns people of the contents of the proposed ordinance itself.' The court dismissed the petition (sic) and plaintiff appealed.

There is but one issue for resolution-Was Article 21 of the 1966 warning inadequate to apprise the townspeople of the subject to be voted upon?

It is contended by the appellant that the article in the warning complied with the law and was sufficiently definite to warrant action thereon by the voters. On the other hand, the appellee claims the ordinance should have been set out in Article 21 and, since it was not the ordinance is invalid.

The power of a municipality to accomplish zoning exists by virtue of the authority delegated from the state. The regulation and licensing of trailer parks was authorized by No. 281, Sec. 1 of the Acts of 1957 which is now 24 V.S.A. § 2231. The statute provides that '(T)he selectmen of a town * * * may enact an ordinance to provide for the regulation and licensing of all parks for trailer coaches or mobile homes within their respective jurisdictions.' The form and substance of the ordinance authorized by Section 2231 is set forth in 24 V.S.A. § 2232. The ordinance enacted by the selectmen becomes effective only 'when approved by a majority of the legal voters of the town present and voting on the question at a regular or special meeting thereof duly warned for the purpose.' 24 V.S.A. § 2233.

No question is made by the defendant but that the ordinance was duly enacted by the selectmen under this statute prior to its submission to the legal voters. Although there is no finding in this regard, Plaintiff's Exhibit #2 shows that the selectmen enacted the trailer ordinance on February 1, 1966. The ordinance is in the identical language of Section 2232. In the absence of evidence to the contrary, it will be presumed that the selectmen properly discharged the duties of their office and faithfully performed those matters with which they are charged relating to the enactment of the ordinance for the regulation and licensing of trailer parks. In re Waterhouse, 125 Vt. 202, 204, 212 A.2d 696.

The findings of the court which state that the warning was for the '1967' town meeting and that the enactment of the trailer ordinance was on March 1, 1967, is an obvious error, the correct data in each instance according to the record being 1966, and we so treat it.

Under 24 V.S.A. § 704, '(a) warning for an annual or special meeting of a municipality shall, by separate articles, specifically indicate the business to be transacted.' The court found that the annual meeting was duly warned and that the warning was posted as required by statute (in 3 public places at least twelve and not more than twenty days before the meeting, 24 V.S.A. § 703.) As noted supra, the vote on the ordinance was under a separate article leaving only the question of whether it specifically indicated the business to be transacted.

In Walsh v. Farrington, 105 Vt. 269, 165 A. 914, the validity of the warning was questioned. This court held that under the statute (then G.L. 3918) the business done and subjects to be considered 'must be made reasonably clear. But they may be set forth in general terms. All the law requires is that they shall be stated with such reasonable certainty as will indicate to all interested the subject-matter of proposed action by the town.' To the same effect-Alger v. Curry, 40 Vt. 437, 444; Kittredge v. Walden, 40 Vt. 211.

The question of whether the business of the meeting was sufficiently set forth in the warning arose in Weeks v. Batchelder, 41 Vt. 317. Part of the business to be transacted was 'to see if the town will vote to divide school district No. 9 in said town' and 'to make such other alterations in school districts as may be found necessary.' One of the plaintiff's objections was that the warning did not indicate how it was proposed to divide district No. 9, and was too indefinite as a notice of the business to be done. The court held the warning was sufficiently definite and added: 'If this does not indicate the business to be done, and in this case that was actually done, it is difficult to conceive of a warning that would.'

In Ovitt v. Chase, 37 Vt. 196, it was held that the subject for consideration should be indicated in the warning with reasonable certainty, and in such a manner that no person interested...