Hargreaves v. Skrbina, 79CA0244

• Decision Date: 16 April 1981
• Docket Number: No. 79CA0244,79CA0244
• Citation: 635 P.2d 221
• Parties: Richard E. HARGREAVES; John M. Harrison; Harlan Wagoner; John Haley; H & H Quality Enterprise Inc., a Colorado Corporation; Longmont Home Improvement, Inc., a Colorado Corporation; and Longmont Soil Conservation District, Plaintiffs-Appellants and Cross-Appellees, v. Phil G. SKRBINA; Phil G. Skrbina, Inc., a Colorado Corporation; the City of Longmont, a Colorado Municipal Corporation, Defendants-Appellees, and Kenneth A. Williamson; Connie S. Williamson, Defendants-Appellees and Cross- Appellants. . I
• Court: Colorado Court of Appeals

Page 221

635 P.2d 221

Richard E. HARGREAVES; John M. Harrison; Harlan Wagoner John Haley; H & H Quality Enterprise Inc., a Colorado Corporation; Longmont Home Improvement, Inc., a Colorado Corporation; and Longmont Soil Conservation District Plaintiffs-Appellants and Cross-Appellees, v. Phil G. SKRBINA; Phil G. Skrbina, Inc., a Colorado Corporation; the City of Longmont, a Colorado Municipal Corporation, Defendants-Appellees and Kenneth A. Williamson; Connie S. Williamson Defendants-Appellees and Cross- Appellants.

No. 79CA0244.

Colorado Court of Appeals, Div. I.

April 16, 1981.

Rehearing Denied May 28, 1981.

Certiorari Granted Oct. 5, 1981.

French & Stone, Joseph C. French, Robert W. Stone, Gary S. Mallo, Boulder, for plaintiffs-appellants and cross-appellees.

No appearance for defendants-appellees Phil G. Skrbina and Phil G. Skrbina, Inc.

Yegge, Hall & Evans, David R. Brougham, Denver, Schey & Schey, Walter J. Hopp, Longmont, for defendant-appellee The City of Longmont.

John G. Canny, Denver, for defendants-appellees and cross-appellants Kenneth A. Williamson and Connie S. Williamson.

COYTE, Judge.

Plaintiffs appeal the judgment of the trial court denying them mandatory injunctive relief. Defendants Williamson cross-appeal on the issue of the trial court's award of mandatory injunctive relief as to the drainage system and of damages to plaintiffs' fence. We affirm in part and reverse in part.

Our examination of the record reveals support for the following pertinent findings of the trial court. Plaintiffs, property owners in the City of Longmont, sued defendants to compel removal of defendants Williamsons' building. The building in question is part of a block of commercial buildings fronting on a state designated right-of-way in Longmont, Colorado. The buildings at issue here are located along that right-of-way from north to south in the following order: the animal hospital of Hargreaves and Harrison, the Williamsons' office building, Quality Liquors, and the Soil Conservation District building. With the exception of two buildings, one of which is the Williamsons', all of these buildings are located approximately 110 feet from the center line of the highway.

Prior to the Williamsons' construction, their building was on line with the other buildings on the block, with a canopy protruding beyond this line.

The trial court found that:

"On June 11, 1974, Defendant Skrbina filed with the Defendant City of Longmont an application for a building permit for an office building upon the property, at or about the same time demolishing the restaurant building and relocating the sewer line to the rear of the proposed building location. The application included a proposed site plan which did not conform to the setback requirements discussed above. The application covenants to build the structure according to the 'ordinances' of the City of Longmont.

"The evidence establishes that Defendants Williamson were unaware of the setback ordinance and that Defendant Skrbina, although aware of it, believed it in conflict with another unspecified zoning ordinance governing parking and indicated upon the site plan a setback of twenty feet from the right-of-way line along Main Street. The planning and building authorities of the City of Longmont initially rejected the application but, after a meeting between Defendant Skrbina and the City Manager, the application was approved, and on June 12, 1974, the building permit issued. The testimony is in conflict as to whether the setback issue was specifically discussed but, in any event, the matter was not submitted to the Board of Adjustment for a variance and the permit permitted construction in violation of the setback ordinance. As characterized at page five of Plaintiffs' Trial Brief the authorities of the City of Longmont made a mistake. Having secured a building permit, the Defendants commenced construction."

The site plan consisted of a freehand drawing without showing any distance from the center of the street. The application for a permit which was filed with the so-called site plan was signed by Phil G. Skrbina and states:

"I hereby acknowledge that I have read this application, filled out in full the information required, completed an accurate plot plan, and state that all the information required is correct and agree to build this structure according to the 'UNIFORM BUILDING CODE' and the 'ORDINANCES' of the City of Longmont, Colorado."

On July 12, 1974, plaintiffs advised defendant Skrbina and the city that they believed that the construction violated the ordinances of the city. Subsequently, they sent written notice of the violation of the city's setback ordinance to defendants Skrbina and Williamson. On July 12, 1974, approximately $15,000 of construction work would have been lost if the building had been moved.

The City refused the request of the plaintiffs that the construction work be stopped, and the Williamsons proceeded with the construction. Plaintiffs filed this action after completion of the building which at the time of trial had a value in excess of $150,000 and leases running up to six years.

I

Plaintiffs contend that they are entitled to injunctive relief requiring removal of Williamson's building insofar as it is in violation of the city's setback ordinance. We agree.

Plaintiffs as owners of property within the City of Longmont have statutory standing to maintain this action under the Longmont Zoning Code § 4-14-2, which provides that any owner of real estate within the city may institute appropriate action, including injunction, to remove an unlawful construction in violation of the zoning code. Under this ordinance, plaintiffs need not show special damages to maintain their action as is generally required of private suitors in this kind of case. See 4 R. Anderson, American Law of Zoning § 27.11 (2d ed. 1977). However, this ordinance does not by itself set forth the requirements which must be proved if plaintiffs are to prevail in their suit.

The trial court, in deciding against plaintiffs, determined that it was required to "weigh the circumstances so that it shall not act oppressively." In light of this determination, the central issue before us is whether private parties, suing to enforce a municipal setback ordinance, may prevail only if they show that their damage is more than minimal in relation to the cost of compliance.

Generally, in Colorado cases involving injunctions to enforce municipal zoning ordinances, a determination of relative hardships has not been made. See Englewood v. Kingsley, 178 Colo. 338, 497 P.2d 1004 (1972); Denver v. Chuck Ruwart Chevrolet, Inc., 32 Colo.App. 191, 508 P.2d 789 (1973).

Although these cases have involved suits by public officials to enforce use restrictions and are thus not controlling here, we nevertheless conclude that the trial court erred in "weighing the circumstances" in this case. That is, we hold that a trial court may not weigh the hardships of a defendant in relation to those of a private plaintiff so as to deprive that plaintiff of an injunction to bring a building into compliance with a valid municipal setback ordinance.

This holding is consistent with that announced in Flinn v. Treadwell, 120 Colo. 117, 207 P.2d 967 (1949). There, the Flinns had been granted a building permit to construct a garage which extended beyond the front of the house which construction would have been contrary to the city ordinance. The permit stated the "front yard as is." The building department stopped construction, and the Flinns filed a suit seeking an injunction and a declaratory decree authorizing them to proceed with their garage. At the time the building was stopped, the Flinns had expended approximately $900. In affirming a judgment adverse to plaintiffs, the court stated:

"No doubt plaintiffs' complaint was largely engendered by the hardship apparent from the enforcement of the ordinance."

Treating this argument of hardship as being an attempt to invoke the doctrine of estoppel, the court stated that: "Before (defendants) can invoke this doctrine, it must be shown that they were unmistakably misled, and that they exercised due diligence ...." It then concluded that such conditions had not been met and that since the Flinns had not pursued the proper remedy of seeking a variance, they "proceeded at their peril." We conclude the situation here is analogous to that in Flinn.

The finding of the trial court that defendants proceeded in good faith seems, at most, to be a conclusion by the court not supported by the evidence. The proposed site plan did not conform to the setback requirements. The trial court found that the owner was unaware of the setback ordinance, but that the contractor was aware of the ordinance but believed it was in conflict with another unspecified zoning ordinance. Defendants do not now contend that the supposed conflict with another specified zoning ordinance was legitimate. They did not seek a variance from the Board of Adjustment but proceeded to complete the construction of their building even though they were advised by the plaintiffs that they were in violation of the ordinance.

We are supported in our conclusion by the reasoning of the court in Little Joseph Realty, Inc. v. Town of Babylon, 41 N.Y.2d 738, 395 N.Y.S.2d 428, 363 N.E.2d 1163 (1977) which sharply distinguished the law of nuisance and the law of zoning on the basis that nuisance cases, which seek to resolve disputes between private parties, require a balancing of risk utility considerations while zoning cases, which seek the benefit and welfare of the entire community, do not require a judicial accommodation of plaintiff's use to that of defendant.

As the Babylon court stated:

"This is not to say that risk-utility considerations have not entered into the adoption of a zoning law's restriction on use. It is rather that presumptively they have already been weighed and disposed of by the Legislature...