# CASINO MOTOR COMPANY v. Needham > Supreme Judicial Court of Maine · November 23, 1955 · 151 Me. 333 URL: https://www.frixlaw.com/law-library/cases/9694777 ## Case - **Full name:** Casino Motor Company vs. John H. Needham, Edward E. Ross, Richard W. Holmes, Warren v. Grindle and Clarence M. Page Substituted Respondents: Gerald J. Grady, Matthew McNeary, Leroy S. Nickerson, Dwight B. Demerritt and Vina P. Adams - **Court:** Supreme Judicial Court of Maine - **Decided:** November 23, 1955 - **Citations:** 151 Me. 333; 118 A.2d 781; 1955 Me. LEXIS 65 - **Precedential status:** Published - **Opinion:** Concurrence by Webber - **Judges:** Williamson, Webber', Beliveau, Tapley, Webber, Tirrell - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9694777 ## Opinion text *341 Webber, J. (Concurring) I concur in the result. I find myself unable to agree that it is unnecessary to pass upon the constitutional question which is clearly placed in issue by the exceptions and which has been ably argued by both opposing counsel. The learned justice below found that the petitioner’s property, although in a residential zone, was in an area so completely occupied by business enterprises that the zoning ordinance was unconstitutional in its application to that particular property. The opinion of the court makes it apparent to the parties that the issues between them can be resolved by neither appeal nor mandamus. It leaves them, however, without any suggestion as to whether the petitioner may proceed in disregard of the ordinance, or must abide by the decision of the Adjusting Board denying a variance. Inasmuch as the issue is here squarely raised and the parties may be put to unnecessary expense and may engage in further unnecessary litigation if they are left in the twilight of judicial indecision, I feel compelled to comment on the respondents’ other exceptions. The justice below erroneously found that the residential zone extended from Forest Avenue a distance of 800 feet along Main Street in a westerly direction. The evidence makes it clear, and the petitioner in argument admits, that in fact only the westerly 300 feet of this 800 foot area was zoned as residential. The remaining 500 feet was properly zoned as a business district, all but one of the buildings therein being commercial. That this error was material and prejudicial is made readily apparent by the comments in the findings as to the nature and type of property within the. “residential district.” These findings place great emphasis on the predominance of commercial buildings in what the fact finder mistakenly took to be the area restricted to residential property. In the light of this false factual premise *342 it is not unnatural then that he should view the zoning as arbitrary, capricious and unreasonable. When we eliminate factual error, however, a very different picture emerges. It becomes apparent that those who sought to lay out the zones recognized that the area extending 500 feet westerly from Forest Avenue to and including the Town Hall property was, except for one building, all occupied by commercial enterprises. Accordingly, this was zoned as a business district. Beyond and westerly of the Town Hall property, however, all the property on both sides of the street, except for two filling stations, was residential. It was in this area that the petitioner’s property, itself residential, was located. When a community is being zoned for the first time, the lines which separate the several zones must be placed somewhere and it is almost inevitable that there will be included an occasional non-conforming use. It is inconceivable that the justice below would have declared the ordinance unconstitutional as pertaining to the property of the petitioner if he had not misapprehended the true location of the boundary of the residential zone. I am aware that in Nectow v. City of Cambridge, 277 U. S. 183 , 48 Sup. Ct. 447, the zoning was declared unconstitutional as to the petitioner’s property. It seems to me that that case rests upon and goes no further than its own facts. There the zone line passed through the property leaving part of it zoned as residential and part unrestricted. Moreover, there were large industrial uses in immediate proximity to the plot in question, including an automobile factory, a soap factory, and railroad tracks, which tended to prevent any residential development in the area. Mr. Justice Sutherland, who wrote the Nectow decision, also wrote the opinion in Zahn v. Board of Public Works, 274 U. S. 325 , 47 Sup. Ct. 594, only a year earlier. In that case the facts more closely resembled the facts now before us. The residential zone included as nonconforming uses a *343 grocery store, a market, a fruit stand, a two-story brick business block, a few real estate offices, and one oil station. The opinion in the Zahn case states that “whether that determination was an unreasonable, arbitrary, or unequal exercise of power is fairly debatable” and goes on to say that whenever the question is “fairly debatable,” the court will not substitute its judgment for that of the legislative body which had the primary responsibility. See also Euclid v. Ambler Co., 272 U. S. 365 , 47 Sup. Ct. 114. The Zahn decision further refers to the opinion of the California court then being reviewed ( 195 Cal. 497 , 234 P. 388 ) as a “well reasoned opinion.” At page 394 of 234 P. the California court said: “ ‘The mere fact that outside of the * * * district there was other property similar in nature and character would not justify the court upon ascertaining that fact to substitute its judgment for the legislative judgment. The boundary line of a district must always be more or less arbitrary, for the property on one side of the line cannot, in the nature of things, be very different from that immediately on the other side of that line.’ ” It appears significant that there is no suggestion in the Nectow case that the Zahn case is disturbed or overruled; on the contrary, it is cited with apparent approval. In the case before us, we have within the residential zone nothing but residential property, save only two nonconforming uses, both filling stations. Filling stations are frequently found in residential areas and certainly they by no means destroy or diminish the value of residential property to the extent or in the way that certain types of industrial property do. Far more destructive of residential property values are the noise and noxious fumes and smoke which so often emanate from industrial plants and railroad sidings. There were no such plants or sidings in proximity to this residential zone. In my view, the location by Orono of a zone line at the approximate extremity of a well defined *344 business development, which line encompassed a residential area containing only two filling stations as nonconforming uses, was a reasonable and proper exercise of the police power both in its general application and in its specific application to the property of the petitioner. Such zoning is neither capricious nor confiscatory. I would specifically sustain the exceptions to the finding of a material fact without any supporting evidence, and to the ruling that the zoning ordinance was unconstitutional in its application to the petitioner’s property. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9694777. Public record. Not legal advice.