Your Home, Inc. v. City of Portland

Decision Date30 July 1981
Citation432 A.2d 1250
PartiesYOUR HOME, INC. v. CITY OF PORTLAND 1 .
CourtMaine Supreme Court

Norman & Hanson, Peter J. DeTroy, III (orally), Portland, for amicus curiae.

Ranger & Copeland, Orville T. Ranger, Brunswick, for plaintiff.

Charles A. Lane (orally), Ellen Egan George, Drummond & Drummond, David N. Fisher, Jr., Portland, for defendant.

Before McKUSICK, C. J., and WERNICK, GODFREY and ROBERTS, JJ.

ROBERTS, Justice.

Your Home, Inc. appeals from a judgment of the Superior Court which affirmed an order of the Portland Zoning Board of Appeals denying Your Home's application for a permit to construct a mobile home park. Your Home challenged the constitutionality of the ordinance and it challenged the Board's action as a misinterpretation of the City's ordinance. Since we agree that the Board misinterpreted the ordinance, at least in part, we vacate the judgment in part.

I. Procedural History

Your Home is a Maine corporation and owner of real estate in Portland. Part of this property is in an Industrial 2 (I-2) zone, while part is located in a Residential 3 (R-3) zone. Your Home filed its original application with Portland's Building Inspector for a permit to build a mobile home park in 1969. The permit was denied in May 1970 on the ground that such a use is not a permitted use in either the I-2 or the R-3 zone. (It cannot be determined from the record whether "such a use" referred to all mobile homes or to mobile home parks only). Your Home appealed to the Zoning Board of Appeals pursuant to what was then section 602.24(A) 2 of the city zoning ordinance. The Board denied the appeal on the ground that the inspector's decision was correct. Plaintiff brought a complaint (docket no. 70-740), which was dismissed by the Superior Court on procedural grounds. An appeal was taken to this Court and we reversed. Your Homes, Inc. v. City of Portland Board of Zoning Appeals, Me., 285 A.2d 372 (1972).

A motion to amend the complaint in 70-740 was denied in November 1973. Your Home filed another application with the city building inspector, even though 70-740 had been remanded and was still a live action in the Superior Court. The new application was again denied. An appeal to the Board, this time pursuant to what was then section 602.24(B) of the ordinance, 3 was denied on the ground that the Board did not have jurisdiction under section 602.24(B). A new complaint was brought in Superior Court in January 1974 (docket no. 74-109).

In November 1974, the Superior Court ordered the two actions, 70-740 and 74-109, joined. In 1975 Your Home amended its complaint to ask for a declaratory judgment that Portland's zoning ordinance and trailer ordinance are unconstitutional. In addition, the City of Portland was joined as defendant and service was made upon the Attorney General. In April 1977, the Superior Court entered an order, holding that plaintiff had no standing to challenge the trailer ordinance, chapter 316 of the Portland Municipal Code, under which it had never attempted to obtain a license. It then held that the Portland Zoning Ordinance does not completely exclude mobile home parks and is therefore not unconstitutional.

The Superior Court reached this conclusion for the following reasons. The Portland zoning ordinance provides for three general uses of property: residential, commercial and industrial, designated R, C and I. Each of these is in turn divided into areas designated numerically with the more restricted areas numbered lower (e. g., R-1) than the less restricted area (e. g., R-4). Listed in the ordinance are specifically permitted or prohibited uses for each zone. The provision in section 602.24(B) allowed approval by the Board of Appeals of uses similar to those expressly permitted, but only by unanimous vote. The Superior Court held that section 602.24(B) allowed the Board to permit mobile home parks if the Board finds the following:

1. That the mobile home park is similar to and no more objectionable than the uses listed in the particular zone in which the park is to be located;

2. The mobile home park can be proven to conform to the standards set forth in the paragraph entitled "External Effects" for the particular zone in which the park is to be located;

3. The mobile home park is not listed as permissible in a less restricted zone;

4. The mobile home park is not similar to uses permissible in a less restricted zone.

In addition to its constitutional ruling, the Superior Court ordered that the plaintiff's appeals from the Board be

remanded ... in order that a hearing may be conducted to determine whether in accordance with the provisions of § 602.24(B) the plaintiff should be allowed a permit for construction of a mobile home park on all or a portion of his property.

After oral argument before us, the parties stipulated that the entire section 602.24 was repealed and replaced effective July 1, 1974. The record of the proceedings before the Superior Court does not indicate that the court was ever made aware of this change, either before its 1977 decision or in the present action. The parties raised the issue of the repeal for the first time on this appeal, informing this Court that the new section 602.24 does not contain any "similar use" provision analogous to the old section 602.24(B), on which the Superior Court based its 1977 decision. The proceedings before the Board and the present action before the Superior Court were all conducted under the assumption that the former section 602.24(B) governed the case. At oral argument before us, the parties agreed to supplement the record by stipulation since the ordinance amendment is not subject to judicial notice. Summit Realty, Inc. v. Gipe, Me., 315 A.2d 428 (1974).

After the Superior Court's 1977 decision, the Board held hearings, and on September 1977, it again denied the application. The Board found that a mobile home park in an industrial zone

would corrupt the intent of the Zone which is to encourage industrial uses and those uses would be incompatible with the location of a development containing 276 dwelling units.

In respect to the Residential Zone, 4 the Board denied the permit on the ground that "a mobile home park is a commercial enterprise."

Your Home sought in Superior Court to amend its complaint in 70-740 and 74-109 in order to appeal the Board's 1977 decision. The Superior Court ordered that the appeal be treated as a new civil action, which was given docket number 77-1247. 5 Your Home again raised its constitutional arguments. In February 1979, the Superior Court held that the constitutional issues were "foreclosed" by the previous decision of April 1977. The court found that the only remaining question was whether the Board's action was "arbitrary, capricious, unreasonable and unsupported by the evidence," citing Lippoth v. Zoning Board of Appeals, City of South Portland, Me., 311 A.2d 552, 557 (1973). Reviewing the record and the findings of the Board, the court upheld the Board in respect to both the commercial and the residential zones.

Your Home filed a timely appeal, claiming that the City of Portland is unconstitutionally excluding mobile homes, and asking this Court to order the City to issue the requested permit.

II. State of the Record

The record on appeal requires initial comment. An appeal must be denied if the appellant has not presented an adequate record for review. Tuttle & Lee Associates v. Deltona Realty Trust, Me., 414 A.2d 534 (1980); Meyer v. Meyer, Me., 414 A.2d 236 (1980); see also Roberts v. Smith, Me., 415 A.2d 1089 (1980). The record initially provided to this Court included only the record of action No. 77-1247; by stipulation at oral argument, the parties agreed to expand the record to include the records in Nos. 70-740 and 74-109. Even the expanded record, however, does not include a copy of plaintiff's original application to the Building Inspector. The maps of Your Home's planned development which were included as plaintiff's exhibits in 70-740 and 74-109 were later withdrawn with permission of the court. Two maps have been submitted by Your Home to this Court, without objection from the City, on the assertion that it is the parties' recollection that these were the plaintiff's exhibits. Aside from these maps, the only other information concerning the plaintiff's proposed use is an incomplete transcript of a public hearing held by the Board in June 1977.

In this transcript, Your Home responded to questioning by both the Board and Portland citizens by saying that it was not prepared to answer questions about the specifics of its plan. Instead, it took the position that the only purpose of the hearing was to determine whether mobile homes in general are similar to the uses permitted in the I-2 and the R-3 zones. Your Home presented a land use consultant who testified that generally mobile homes use land in the same way as residences of other kinds. The questioning showed that neither the Board nor the audience was satisfied that this park could be approved as a similar use without specific information on Your Home's plans. The same opinion was expressed by Board members in a transcript of their subsequent meeting. In the end, however, the Board based its decision on its finding that a mobile home park is a commercial enterprise and therefore dissimilar to uses permitted on an R-3 zone.

The hearing transcript and the records and exhibits from 70-740 and 74-109 provide some information, but leave important questions unanswered. The term "mobile home park" embraces a spectrum of possible uses of land. It could include either structures permanently installed on foundations, substantially similar to other residential dwellings, or mobile homes still on wheels, temporarily placed on lots, lacking the permanence and possibly other features of residential dwellings. See Town of Windham v. LaPointe, Me., 308 A.2d 286, 289 (1973). The critical...

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