Salt Lake County v. Kartchner

Citation552 P.2d 136
Decision Date24 June 1976
Docket NumberNo. 14283,14283
PartiesSALT LAKE COUNTY, a body corporate and politic, Plaintiff and Respondent, v. Dan L. KARTCHNER, Defendant and Appellant.
CourtSupreme Court of Utah

David B. Boyce, Backman, Clark & Marsh, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, Salt Lake County Atty., Donald Sawaya, Kent S. Lewis, Deputy Salt Lake County Attys., Salt Lake City, for plaintiff and respondent.

MAUGHAN, Justice:

Defendant appeals from a decree of the district court ordering him to remove 6 1/2 feet of the west portion of a carport situated on his property. The order further requires defendant to secure a building permit for any remaining portion of the structure, pay the fee plus a penalty. We reverse the order requiring destruction of the improvement; and affirm the order requiring a building permit, payment of the permit fee and penalty.

Defendant resides in an area of Salt Lake County zoned R--1--8. During the first part of 1972, he commenced building an addition to his existing carport. During the initial stage of construction, a cruising building enforcement inspector, Mr. Williams, observed the emerging structure. Mr. Williams testified he left a notice, dated May 22, 1972, between the screen door and main door of defendant's residence. The notice stated the owner should contact the building and zoning department for a building permit. Six months later Mr. Williams returned to the neighborhood and left a second notice dated November 7, 1972, in the same manner as the first. At this time the structure was almost completed, which was conceded by Mr. Williams. The notice stated that in addition to the failure to have a building permit the structure violated the zoning standards of a 30-foot front yard setback. It further recited the carport was ten feet in violation.

On February 20, 1973, defendant was contacted personally for the first time by Marvin D. Jeffs, a county zoning inspector. The structure was completed at this time, with the exception of some touching up painting. Jeffs measured the distance from the front line of the property to the carport and determined it was 20 feet. Two days later Jeffs mailed a written notice to defendant stating the new enclosed carport had been built without a permit and was in violation of front yard requirements of Section 22--16--7, Zoning Ordinances.

The record shows a surveyor for the county located the front lot line at a point 1.3 feet from the sidewalk toward the residence. In June 1974 Mr. Jeffs measured the setback of all the houses on one side of the street, excluding the corner lots, and determined the average setback to be 26 feet. On cross-examination, Mr. Jeffs admitted that in the immediate vicinity of defendant's home there were six structures in violation of 22--16--7, and there had been no attempt to contact the owners about these violations.

Defendant testified his enclosed carport cost about $2,000. His testimony about the notices is indefinite, as is the record about when he first received a notice, with the exception of the personal contact in February 1973. Defendant did make application for a building permit and a variance. After two hearings the application for variance was refused. Defendant admitted he completed the last ten per cent of the structure after applying for the permit. He said it was his understanding it was permissible to commence a building and then procure a building permit. Defendant testified he located the wall of his carport by aligning it with his neighbor's garage next door.

Based on the foregoing evidence, the trial court issued a mandatory injunction ordering defendant to remove 6 1/2 feet of the improvement. It should be observed that the carport is constructed parallel to the street; and the order would compel defendant to remove the west wall of the structure, the roof, and the rear wall for a distance of 6 1/2 feet.

Section 22--16--7, Revised Ordinances of Salt Lake County, provides:

The minimum depth of the front yard for main buildings and for private garages which have a minimum side yard of eight (8) feet shall be thirty (30) feet, or the average of the existing buildings where fifty (50) per cent or more of the frontage is developed, provided that in no case shall a front yard be less than twenty (20) feet or be required to be more than thirty (30) feet.

All accessory buildings, other than private garages, which have a side yard of at least eight (8) feet shall be located at least six (6) feet in the rear of the main building.

This being a proceeding in equity, we sit in review of the facts, as well as the law. On appeal defendant contends the trial court erred in its finding there were no laches present. He urges the failure to inform him of his violation of the zoning ordinance, at the time of the first notice, in May; combined with the subsequent silence or acquiescence, until substantial completion in November, factually constituted laches and should preclude plaintiff from obtaining the harsh remedy of a mandatory injunction.

Estoppel, waiver or laches ordinarily do not constitute a defense to a suit for injunctive relief against alleged violations of the zoning laws, unless the circumstances are exceptional. Zoning ordinances are governmental acts which rest upon the police power, and as to violations thereof any inducements, reliances, negligence of enforcement, or like factors are merely aggravations of the violation rather than excuses or justifications therefor. 1

Ordinarily a municipality is not precluded from enforcing its zoning regulations, when its officers have remained inactive in the face of such violations. The promulgation of zoning ordinances constitutes a governmental function. This governmental power usually may not be forfeited by the action of local officers in disregard of the ordinance. 2

It is a further contention of defendant the circumstances here render improper the granting of such a remedy as harsh as a mandatory injunction. Section 17--27--23, U.C.A.1953, as amended 1973, provides the county attorney may, in addition to other remedies provided by law, institute an injunction proceeding to enjoin, abate or remove an unlawful construction for alteration.

A statute of similar import 3 was interpreted in City of Snyder v. D. M. Cogdell. 4 There the court stated the language of the statute did not destroy the discretion of a court, and did not require the issuance of an injunction as a matter of law in every type and circumstance of violation. Further, the statute did not nullify the rule that under the circumstances of a particular case, the court, in the statute did not nullify the rule that under the circumstances of a particular case, the court, in the exercise of its equitable powers, may deny injunctive relief against the violation of a zoning ordinance. An injunction will be denied where the granting of it would be inconsistent with basic principles of justice and equity, even though it is within the scope of relief available in equity courts to enjoin violations of zoning laws. 5

When a municipal corporation seeks vindication of public rights by injunction, in a court of equity, it is on the same footing as any private person or corporation. 6 An application for injunctive relief is addressed to the conscience of the chancellor, who may in the exercise of sound discretion either grant or deny the prayer as the circumstances require. 7 The court will consider the equities between the parties and under some circumstances deny equitable relief, because a great injury will be suffered by defendant because of a mandatory injunction, with little or no benefit to complainant. 8

The matter here for decision bears a distinct factual similarity to City of New Orleans v. Levy. 9 There the City sought a mandatory injunction to compel defendant to remove a plastic roof. The roof was in violation of a zoning ordinance because it covered an entire courtyard. The ordinance required 20 per cent of the space to be open. The record disclosed the existence of similar violations against which no injunction had been sought. The court noted five specific parcels in the vicinity, where the courtyards were completely covered.

The court denied the injunction sought by the City, because of its discriminatory practices in enforcement of the ordinance. It pointed to these acts of discrimination, noting them as violations of principles of equity: 10

. . . it is axiomatic that while a court of equity endeavors to promote and enforce justice, good faith, uprightness, fairness and conscientiousness on the part of the parties who occupy a defensive...

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18 cases
  • City of Tucson v. Clear Channel Outdoor
    • United States
    • Arizona Court of Appeals
    • April 2, 2008
    ...from the trial court with respect to issuance of a mandatory injunction to enforce a zoning ordinance"); Salt Lake County v. Kartchner, 552 P.2d 136, 138-39 (Utah 1976) ("An injunction will be denied where the granting of it would be inconsistent with basic principles of justice and equity,......
  • Town of Alta v. Ben Hame Corp.
    • United States
    • Utah Court of Appeals
    • June 26, 1992
    ...1992), county administrative officials may not forfeit the power of enforcement by disregarding an ordinance. Salt Lake County v. Kartchner, 552 P.2d 136, 138 (Utah 1976). The custom or practice of certain county officials not to enforce the prohibition of short-term rentals of single-famil......
  • Hargreaves v. Skrbina, 79CA0244
    • United States
    • Colorado Court of Appeals
    • April 16, 1981
    ...rule." Hickman v. Six Dimension Custom Homes, 273 Or. 894, 543 P.2d 1043 (1975). A similar result was reached in Salt Lake County v. Kartchner, 552 P.2d 136 (Utah 1976). See also D. Dobbs, Remedies § 5.7 I would follow this rule. Indeed, Pull v. Barnes, supra, and Golden Press, Inc. v. Ryla......
  • Wieck v. District of Columbia, Bd. of Zoning, 10639.
    • United States
    • D.C. Court of Appeals
    • February 1, 1978
    ...117 Ill.App.2d 278, 254 N.E.2d 536 (1970); Rye Beach Village District v. Beaudoin, 114 N.H. 1, 315 A.2d 181 (1974); Salt Lake County v. Kartchner, 552 P.2d 136 (Utah 1976).8 Our inquiry has not ended, however, until we consider the application of laches to this situation. Although not speci......
  • Request a trial to view additional results
1 books & journal articles
  • Article Title: Utah Zoning Law: Enforcement
    • United States
    • Utah State Bar Utah Bar Journal No. 2001-06, June 2001
    • Invalid date
    ...9. Patterson v. Utah County Bd. of Adjustment, 893 P.2d 602, 606 (Utah Ct.App. 1995). 10. 873 P.2d 1117 (Utah 1994). 11. Id. at 1120. 12. 552 P.2d 136 (Utah 13. Id. at 138. 14. 585 P.2d 461 (Utah 1978). 15. 363 P.2d 1113 (Utah 1961). 16. Id. at 1114. 17. 615 P.2d 1265 (Utah 1980). 18. See F......

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