Town of Windham v. LaPointe

• Decision Date: 31 July 1973
• Citation: 308 A.2d 286
• Parties: TOWN OF WINDHAM v. Joseph LaPOINTE.
• Court: Maine Supreme Court

Page 286

308 A.2d 286

TOWN OF WINDHAM v. Joseph LaPOINTE.

Supreme Judicial Court of Maine.

July 31, 1973.

Wilson, Steinfeld, Murrell & Lane, by Henry Steinfeld, Charles A. Lane, Portland, for plaintiff.

Ranger & McTeague, by Orville T. Ranger, Brunswick, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, and ARCHIBALD, JJ.

DUFRESNE, Chief Justice.

On or about June 1, 1971 the appellant, Joseph LaPointe, moved a house trailer onto a private lot located in the Town of Windham, intending to make his home therein. On July 8, 1971 the Town of Windham initiated injunctive proceedings against Mr. LaPointe which resulted ultimately in an order permanently enjoining the occupation of the trailer for dwelling purposes and disallowing its maintenance on that plot of land in violation of the ordinance of the Town of Windham. The legal propriety of this order is the subject of this appeal, which we now sustain.

The ordinance reads as follows:

'An Ordinance Regulating House Trailers and House Trailer Parks in the Town of Windham, Maine

'The following specific regulations are hereby required for establishing house trailer parks and the use of house trailers in the Town of Windham:

(a) After passage of this ordinance, house trailers will be restricted to approved trailer parks.

(b) House trailers now on location will be allowed to remain, but if moved, they cannot be reestablished except in approved trailer parks.

(c) No house trailer park shall be established in the Town of Windham unless it meets with the following requirements:

1. Adequate sanitation must be provided complying with all State laws.

2. Location to be approved by the Selectmen and the Planning Board.

3. It shall not become a nuisance to other dwellings.

4. It shall be at least one hundred feet from any highway in the town.'

The appellant raises two contentions, 1) that the Town had no power to enact the ordinance, and 2) that, if it did have the power, it passed an ordinance which is unconstitutional.

The Town cites the case of Inhabitants of Windham v. Sprague, 1966, Me., 219 A.2d 548 as controlling against the appellant's position. We disagree. This Court in Sprague expressly noted that, due to the stipulation of facts under which the controversial issue was submitted to the Court, no attack was being launched against the Enabling Act nor against the Ordinance enacted thereunder, and thus the parties and the Court were premising their consideration of the controversy on the presumption of constitutionality of both the Enabling Act and the Ordinance. The issue in Sprague only involved the construction of the ordinance respecting nonconforming uses. The validity of the ordinance was assumed and was not under attack.

It is undisputed from the record in the instant case that Mr. LaPointe made no attempt to comply with the provisions of the ordinance. He did not locate his house trailer in an approved trailer park, nor did he seek to establish a trailer park on his own private lot, the size of which does not appear, by obtaining the approval of the Selectmen of the Town of Windham and of the Planning Board. Furthermore, the parties at trial stipulated that the Town of Windham had no comprehensive zoning plan; thus the validity of the ordinance must be tested not as a 'zoning' ordinance, but as a 'police power' ordinance.

We note initially that the ordinance provides no definition of the terms 'house trailer' and 'house trailer park.' Even though the Windham ordinance predates the statutory definition of 'house trailer' under 29 M.R.S.A. section 1, subsection 3-A (adopted by P.L. 1967, c. 245, section 2, subsection 3-A), the defendant's structure, described in the evidence as a house trailer placed on a permanent foundation, would come within the broad term of the ordinance and of the statutory definition, to wit: 'a trailer or semitrailer which is designed, constructed and equipped as a dwelling place, living abode or sleeping place, either permanently or temporarily, and is equipped for use as a conveyance on streets and highways.'

The parties do not dispute, and have assumed, the fact that the defendant's intended home retains its character as a 'house trailer' even though it was placed on a permanent foundation. See, Wright v. Michaud, 1964, 160 Me. 164, 200 A.2d 543.

A 'trailer park,' on the other hand, according to Webster's Third New International Dictionary (1961), is 'an area where house trailers are congregated.' It is a place where space may be rented upon which to park trailers. Mercer v. Vinson, 1959, 85 Ariz. 280, 336 P.2d 854. The trailer park may accommodate on a temporary basis persons traveling about the country for recreational purposes by providing them with the necessary parking, sanitary and electrical facilities needed for the enjoyment of their house trailers, whilst other trailer parks are undoubtedly conducted as business ventures oriented toward the permanent lodging of a segment of the public who cannot afford the purchase of conventional housing accommodations. The trailer park concept, however, connotes multiple space areas for the parking of house trailers as opposed to the maintenance of a single trailer on an owner's plot of land.

The defendant claims the right to station a single house trailer on land that he owns; he does not contend for the establishment of a trailer park.

The defendant has standing to attack the constitutionality of the ordinance, even though the made no attempt to secure a permit to install his house trailer on his plot of land. Under the ordinance, such permit would have been denied, since the ordinance prohibits the establishment of a house trailer anywhere in Windham except in approved trailer parks. But, under such circumstances, the attack must be limited to the face of the ordinance. See, Staub v. City of Baxley, 1958, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302. If an ordinance is unconstitutional on its face and invalid, it is not necessary for a defendant to do a vain thing such as to apply for a permit which must be denied under all circumstances before attacking the ordinance which injuriously affects his right. See, Village of St. Johnsbury v. Aron, 1930, 103 Vt. 22, 151 A. 650. The interlocking structure of the Windham ordinance which restricts house trailers to approved trailer parks so affects the defendant's use of his property as to allow him to test on its face the constitutionality of the main portion of this two-pronged ordinance, including that part which sets the requirements for the establishment of trailer parks which he claims unconstitutional. He has shown that he is sufficiently aggrieved by the ordinance as to permit him to attack its constitutionality. See, LaFluer, Atty. Gen. v. Frost, 1951, 146 Me. 270, 276, 80 A.2d 407.

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. Buck v. Kilgore, 1972, Me., 298 A.2d 107; Donahue v. City of Portland, 1940, 137 Me. 83, 86, 15 A.2d 287, 288. 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. Buck v. Kilgore, supra.

This ordinance of the Town of Windham regulating house trailers and house trailer parks was passed pursuant to 30 M.R.S.A. § 2151, which authorizes municipalities ¹ to enact police power ordinances for the purpose of (1A) 'promoting the general welfare . . . and . . . providing for the public safety,' also, for the purpose of (4) 'regulating sanitation and parking facilities for trailers; . . . (and of) requiring permits and establishing reasonable permit fees for all of the operations mentioned in this paragraph.' And the Enabling Act further provides, for the express purpose of promoting the health, safety and general welfare of the public and of the occupants and users of buildings and other structures, that 'any building, structure, trailer parking facility or equipment existing in violation of an ordinance authorized by this subsection is a nuisance.' 30 M.R.S.A. § 2151 subd. 4, par. E(1).

The plaintiff Town claims the power to regulate house trailers through a police power ordinance, as distinguished from a zoning ordinance, from the general grant of power contained in 30 M.R.S.A. § 2151(1)(A) and from the specific authority to regulate the sanitation and parking facilities of trailers. 30 M.R.S.A., § 2151(4)(A). ² Although the Enabling Act does not specifically mention house trailers, it is clear that the Legislature intended to subject them to regulation, since the power to regulate sanitation facilities for trailers would be practically meaningless if the Lawmakers did not have in mind trailers used for living quarters such as house trailers.

We need not repeat in this opinion the history of legislative authorizations for 'police power' and 'zoning' ordinances and their simultaneous but parallel courses of development to serve their respective but different purposes, as the same was elaborately detailed in Town of Waterboro v. Lessard, 1972, Me., 287 A.2d 126.

A municipality in this State has no inherent police power. It may exercise only such powers as are expressly conferred upon it by the Legislature or as are necessarily implied from those expressly so conferred. Town of Conover v. Jolly, 1970, 277 N.C. 439, 177 S.E.2d 879; Squires v. Inhabitants of City of Augusta, 1959, 155 Me. 151, 153 A.2d 80.

In Inhabitants of Town of Frankfort v. Waldo Lumber Co., 1929, 128 Me. 1, at 4, 145 A. 241, at 242, this Court said:

"A municipal corporation has no element of sovereignty. It is a mere local agency of the state, having no other powers than such as are clearly and unmistakably granted by the law-making power."

A town has no right to appropriate or interfere with private...