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Town of Orono v. LaPointe
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Decision:	1997 ME 185
Docket:	Pen-96-520
Argued:April 7, 1997
Decided:	August 8, 1997





	[¶1]  Defendant Perry LaPointe appeals from a judgment entered in
the Superior Court (Penobscot County, MacInnes, J.) vacating part of a
District Court judgment (Bangor, Russell, J.) that suspended a portion of a
civil penalty.  The District Court suspended all but $3,000 of a $73,000
penalty.  The penalty was assessed against defendant pursuant to 30-A
M.R.S.A. § 4452 (1996) for operating an automobile graveyard or junkyard
without a permit in violation of 30-A M.R.S.A. § 3753 (1996).  Defendant
argues that the District Court properly interpreted the applicable statutory
provisions to allow the suspension.  On its cross-appeal, plaintiff Town of
Orono (the "Town") argues that the District Court, as affirmed by the
Superior Court, erred by determining that defendant's junkyard is a
grandfathered nonconforming use pursuant to the Orono Land Use
Ordinance.  We affirm the judgment of the Superior Court.
	[¶2]  The evidence presented at the trial may be summarized as
follows:  Defendant has owned a one hundred acre tract of land at the end of
Kelley Road in Orono for over forty years.  Sometime in the 1950's, he began
storing, salvaging, and repairing vehicles on the property.  In 1961, the
Town enacted a zoning ordinance that placed this property in a rural
farming zone that does not permit automobile junkyards.  The Town records
indicate that defendant first applied for a permit in 1967 pursuant to the
junkyard statute which provides that:

No person may establish, operate or maintain an automobile
graveyard, automobile recycling business or junkyard without
first obtaining a nontransferable permit from the municipal
officers . . . . Permits issued to an automobile graveyard or
junkyard  under this section are valid until the first day of the
following year.

30-A M.R.S.A. § 3753 (1996).  In the 1967 application, defendant stated
that the junkyard was twenty-five acres in area and that it was initially
established in 1954.  The Town issued a permit to defendant for every year
from 1968 to 1993.  In 1972, the Town conditioned its approval by limiting
the junkyard to a twenty-five acre area. 
	[¶3]  In December 1991, the Town Council gave notice to defendant
that he would be required to screen the junkyard from the "public
highway," in accordance with 30-A M.R.S.A. § 3755(1)(A),{1} before the next
permit review.  Defendant failed to screen the junkyard and consequently
the Town denied the 1993 permit.  Defendant continued to operate the
junkyard without the screening and the Town also denied his subsequent
1994 permit application.  Defendant did not appeal from the denial of either
	[¶4]  During his investigation of the screening violation, the Town's
code enforcement officer became convinced that the junkyard was not
commercially active until sometime after 1961.  Because the Orono Land
Use Ordinance has prohibited junkyards in the zone in which defendant's
land is located since 1961, the code enforcement officer concluded that the
junkyard was an illegal use that had not been grandfathered.  In September
1994, the Town filed a Land Use Citation and Complaint pursuant to M.R.
Civ. P. 80K alleging that defendant violated 30-A M.R.S.A. § 3753 by
operating an automobile junkyard without a permit in 1993 and 1994.  For
this violation, it requested that civil penalties be assessed in accordance
with 30-A M.R.S.A. §§ 3758 & 4452.  The complaint also alleged a violation
of the Orono Land Use Ordinance for operating in a zone that prohibits
automobile junkyards and requested that the operation be enjoined.  
	[¶5]  At the trial, an aerial photographer identified aerial photographs
taken in 1955, '59, '65, '77, '86, '93, and '95.  He testified that the
photographs evidenced no vehicles in 1955, some vehicles around the house
in 1959, a few clusters of vehicles in 1965, and vehicles "all over the place"
in 1977 and subsequent years.  On cross-examination, he admitted that it
was possible that in 1955 and 1959 there were vehicles in the woods that
would not be depicted in the photographs.
	[¶6]  Defendant, who represented himself and did not testify,
presented four witnesses who testified to the operation of the junkyard from
1954 to the present.  Eugene Raymond lived on the property from 1954 to
1959 and remembered that his father and defendant bought eighty-five cars
in 1955 and brought them onto the property for salvage.  Harold Wilcox,
who did business with defendant, testified that defendant's inventory
fluctuated from a dozen to three hundred cars during the 1950's.  Walter
Reed testified that defendant stored vehicles along the woods roads and
under trees.  Eugene Raymond testified that the fields were empty until
haying, but that after that, his father and defendant would bring cars into the
fields to burn and strip them.  He and his brother would collect the lead and
copper that came off the burned cars.  Richard Delong and Eugene Raymond
testified that the inventory of vehicles fluctuated and that defendant would
periodically crush up to ninety percent of his stock.
	[¶7]  The District Court ruled that the junkyard was grandfathered
pursuant to the Orono ordinance, that the operation never exceeded the
acreage limit set by the Town in 1972, and that the post-1961 use did not
illegally exceed the grandfathered use.  The court also found that defendant
operated the junkyard without a permit for 730 days in 1993 and 1994. 
The court assessed a fine at $100 per day, totalling $73,000.  It then
suspended all but $3,000 of that fine.
	[¶8]  The Town appealed, and the Superior Court affirmed the District
Court in all respects except for the fine suspension.  The court found no
statutory authority for the suspension.  Mr. Lapointe now appeals, and the
Town cross-appeals.
I. Suspension of the Statutory Penalty
	[¶9] When a statute imposes a minimum civil penalty a court may not
assess a lesser penalty unless the Legislature has provided it with the
discretion to do so.  Dep't. of Envtl. Protection v. Emerson, 616 A.2d 1268,
1272 (Me. 1992).  In Emerson, we reviewed the State's appeal from a
judgment imposing a penalty less than the statutory minimum required by
38 M.R.S.A. § 349(2) (1989).  Because the statute made no provision for
imposing less than the minimum penalty of $100 for each day of the
continuing violation, we modified the judgment to impose the minimum
penalty of $191,600.  Id. at 1272.  Defendant's appeal implicates the
Emerson rule and requires that we determine the minimum statutory
penalty and the extent of the court's discretion in assessing that penalty. 
	[¶10]  Junkyards and automobile graveyards are subject to state
regulation administered locally by municipal and county officials pursuant to
Title 30-A §§ 3751-3760.  The operation of a junkyard without a permit
from the municipality or county is subject to civil penalties.  The specific
statute penalizing unlicensed junkyards provides as follows:

Whoever violates this subchapter [§§ 3751-3760] or the rules of
the Department of Transportation adopted under section 3759
must be penalized in accordance with section 4452.  Each day
that the violation continues constitutes a separate offense.

30-A M.R.S.A. §3758(2) (1996) (emphasis added).  The procedures for local
enforcement of land use laws and ordinances in general are set forth in 30-A
M.R.S.A. § 4452.  This section provides that "the minimum penalty for a
specific violation [of the applicable ordinance or law] is $100, and the
maximum penalty is $2,500."  Section 4452(3)(B). 
	[¶11] Defendant argues that $2,500 is the absolute maximum penalty
regardless of the number of days he operated without a permit.  This
interpretation, however, is contrary to a plain reading of the statute. 
"Unless the statute itself reveals a contrary legislative intent, the plain
meaning of the language will control its interpretation."  Murphy v. Bd. of
Envtl. Protection, 615 A.2d 255, 258 (Me. 1992).  The maximum penalty of
$2,500 pertains to "a specific violation" or "separate offense," not a series
of separate violations or offenses.  
	[¶12]  Defendant next argues that, notwithstanding the express
directive in section 3758 that each day constitutes a separate offense, the
prefatory language to the general provisions set forth in section 4452 grants
the court the discretion to impose penalties for less than all of the days he
operated without a permit.  He relies on the following language:  "Except for
paragraph H, monetary penalties may be assessed on a per-day basis." 30-A
M.R.S.A. § 4451(3) (emphasis added).  The language in question was added
to section 4452 in 1989{2} and provides a court with discretionary authority
to impose penalties for continuing violations on a per-day basis.  Prior to
1989, section 4452 provided no authority to impose daily penalties for
continuing violations.  See  Town of Falmouth v. Long, 578 A.2d 1168, 1172-
73 (Me. 1990);  Town of Freeport v. Brickyard Cove Associates, 594 A.2d
556, 558 (Me. 1991);  Town of Ogunquit v. McGarva, 570 A.2d 320, 321
(Me. 1990).  Thus, in the absence of any other provision authorizing daily
penalties, $2,500 was the absolute "maximum" penalty for most land use
violations.  Section 3758, however, is such an "other provision" and since
1963{3} it has specifically mandated that each day of illegal operation of a
junkyard constitutes a separate offense.    Read together, section 3758 and
4452(3)(B) mandate a minimum penalty of $100 for each day that the
junkyard is operated without a permit.  The court is without discretion to
consider each day of unlicensed operation as anything other than a separate
offense.  Defendant does not challenge the court's determination that he
operated in such a manner for 730 days.  The only discretion permitted to
the court is in assessing the penalty for each separate offense between the
minimum of $100 and the maximum of $2,500.  The District Court correctly
assessed the minimum penalty of $73,000 but erred by suspending any part
of it.
II. Zoning Ordinance
	[¶13]  The court ruled that defendant's junkyard is permitted
pursuant to the Orono ordinance as a nonconforming use.  To qualify for
"nonconforming" or "grandfathered" status, it must be shown that the use
existed prior to the enactment of the zoning provisions prohibiting it and
that the use was "actual and substantial."   Seven Islands Land Co. v. Maine
Land Use Reg. Com'n. 450 A.2d 475, 481 (Me. 1982).  The nonconforming
user has the burden to prove the nonconforming status.  Id.  The court found
that defendant operated a junkyard for several years before 1961.  Although
the court did not specifically find that the use was actual and substantial, we
assume that the court made all necessary findings to support its decision
when, as in this case, neither party has made a request for further findings.   
Glidden v. Belden, 684 A.2d 1306 (Me. 1996).  The Town challenges these
findings on its cross-appeal, and to prevail must demonstrate that they are
clearly erroneous.  Id.  Contrary to the Town's contention, the record is
replete with evidence that supports a finding of substantial use before 1961.   
	[¶14]  The Town also challenges the court's determination that the
junkyard did not lose its nonconforming status by an illegal extension,
expansion or change of the use.  First, we note that the court erroneously
placed the burden on defendant to prove that the use did not exceed his
grandfathered use.  The general rule applies that, as the moving party, the
Town has the burden to prove the facts it alleges.  Nichols v. Cantara & Sons,
659 A.2d 258, 262 (Me. 1995).  In Mason v. Crooker-Mulligan, 570 A.2d
1217, 1220 (Me. 1990), we stated that the neighbor plaintiffs, seeking to
enjoin a use, had the burden of proving "that in some manner or for some
purpose the grandfathered use . . . had been altered, extended or enlarged
by its current use."{4} 
	[¶15] Initially, the Town contends that the court applied the wrong
legal standard and ignored its argument that defendant illegally expanded
the junkyard into new areas of his 100 acre parcel.  The 1961 ordinance
specifically prohibited the extension of a "nonconforming open use of land . .
. to any part of the remainder of the lot."{5}  We find no merit in this
argument because the court did address the issue;  it specifically found that
defendant's operation has never exceeded the twenty-five acre limit set by
the Town in 1972.  Moreover, the Town failed to discharge its burden to
prove any shift in the actual location of the twenty-five acres. 
	[¶16] Next, the Town argues that the court's factual determination is
clearly erroneous.  Although the Town contends that aerial photographs
prove that the large open fields were not in use before 1961, other
competent evidence suggests that the use of the fields was seasonal.  The
court rationally could have found that defendant's operation occupied
twenty-five acres before 1961.  A mere increase in the volume of vehicles
stored on defendant's lot does not constitute an illegal expansion or change
of use.  Boivin v. Town of Sanford, 588 A.2d 1197, 1199 (Me. 1991).
	The entry is:            
			Judgment affirmed.

Attorney for plaintiff: Thomas A. Russell, Esq. (orally) Farrell, Rosenblatt & Russell P O box 738 Bangor, ME 04402-0738 Attorney for defendant: Edmond J. Bearor, Esq. (orally) Rudman & Winchell, Esq. P O Box 1401 Bangor, ME 04402
FOOTNOTES******************************** {1} Section 3755 provides in part that: No permit may be granted for an automobile graveyard or junkyard within 1,000 feet of the right-of-way of any highway incorporated in the Interstate and Primary Systems or within 600 feet of the right-of-way of any other highway, except for: A. Those automobile graveyard or junkyards that are kept entirely screened to ordinary view from the highway at all times by natural objects, plantings or fences; 30-A M.R.S.A.§ 3755(1)(A) (1996). {2} P.L. 1989, c. 727, § 1. {3} P.L. 1963, c. 178 § 6. {4} If the present action were instituted by defendant on an application to alter the use, he would have the burden to prove the alteration did not constitute an illegal change, expansion or extension. See Total Quality v. Town of Scarborough, 588 A.2d 283, 284 (Me. 1991). {5} Subsequent revisions of the ordinance contain a more general prohibition of any extension, expansion, or change unless to a conforming use.