Town of Sherburne v. Carpenter

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 87-481


Town of Sherburne                            Supreme Court

     v.                                      On Appeal From
                                             Rutland Superior Court
Gary Carpenter

and                                          March Term, 1989

Gary Carpenter

     v.

Town of Sherburne,
Board of Adjustment



James L. Morse, J.

John F. Evers of Langrock Sperry Parker & Wool, Middlebury, for plaintiff-
  appellant

Deborah S. McCoy of Keyser, Crowley, Banse & Facey, Rutland, for defendants-
  appellants



PRESENT:  Peck and Dooley, JJ., Springer and Connarn, D.JJ. (Ret.), and
          Katz, Supr. J., Specially Assigned



     DOOLEY, J.   This is an appeal by plaintiff, Town of Sherburne, from an
order by the Rutland Superior Court refusing to grant an injunction against
defendant Gary Carpenter and capping the amount defendant must pay the Town
as a fine.  The injunction sought would have required defendant to remove a
part of a structure that was found to violate set-back requirements of the
Sherburne zoning ordinance.  We reverse and remand.
     Defendant owned a building on Route 4 in Sherburne and used it to
operate his plumbing business.  The zoning ordinance required structures in
defendant's zone to be set back one hundred feet from Route 4.  Defendant's
building represented a nonconforming preexisting use that was set back only
fifty-five feet from Route 4.  In addition, the building had a preexisting
porch that further reduced the set-back, although the actual depth of the
porch (between eight and ten feet) is in dispute.  In 1986, the Town granted
defendant a zoning permit to enclose the porch without changing the amount
of set-back from Route 4.
     Defendant actually tore down the porch and built an enclosed structure
in its place.  During construction work, the Town zoning administrator
viewed the property and determined that the new enclosure would be ten feet
deep even though the plan submitted by defendant showed that the porch had
been only eight feet deep and the new enclosure would retain this dimension.
The zoning administrator sent defendant a letter stating that the new
enclosure would be two feet closer to Route 4 than the former porch and,
therefore, violated the zoning ordinance.  The letter stated that unless
defendant reduced the size of the enclosure the Town would sue to have the
extra two feet removed from the building.  Defendant completed the enclosure
without reducing its size, and the Town brought suit for an injunction to
have the extra two feet removed and for a fine of fifty dollars per day
pursuant to 24 V.S.A. { 4444(a).
     Defendant responded to the Town's action by arguing that the dimensions
on the plans he had submitted were erroneous and the enclosed building front
was only two inches closer to Route 4 than the edge of the roof on the
former porch.  He also testified that the zoning administrator, when he
issued the permit, had assured him that a couple of feet would not matter.
The trial court rejected both of these defenses and found that the porch
violated the set-back requirements of the zoning ordinance.
     Without findings or reasons addressing the law of injunctive relief,
the court determined, however, that it would not require the defendant to
tear down the new enclosure.  The court imposed a daily fine of fifty
dollars per day from the time the enclosure was built, but limited the
overall fine to $1000 plus interest until paid.
     On appeal, the Town argues that it was entitled to an injunction as a
matter of law and that 24 V.S.A. { 4444(a) did not authorize the trial court
to limit the fine to $1000.  We take these claims in order.
     It is clear that 24 V.S.A. { 4445 authorizes the Town to bring an
action to abate or correct a violation of the zoning ordinance.  See, e.g.,
Town of Brighton v. Griffin, 148 Vt. 264, 267, 532 A.2d 1292, 1293 (1987).
The section does not specify the nature or extent of trial court discretion
in acting on such a request.  It is a command to the zoning administrator to
bring an appropriate proceeding.  It is silent on the court's power in
acting on the administrator's action.
     In Town of Bennington v. Hanson-Walbridge Funeral Home, 139 Vt. 288,
295-96, 427 A.2d 365, 369-71 (1981), this Court considered whether a trial
court had discretion under { 4445 to refuse to enjoin the operation of a
funeral home crematory being operated in violation of the town zoning
ordinance.  The Court discussed the concept of relative injury in deciding
whether to issue an injunction but declined to rule whether this concept was
consistent with { 4445, finding that on the facts of the case it would not
apply in any event.  It concluded that the town was entitled to an injunc-
tion as a matter of law and enjoined the defendant from using its premises
for the cremation of human bodies.
     The opinion in Hanson-Walbridge Funeral Home distinguished Thompson v.
Smith, 119 Vt. 488, 509-10, 129 A.2d 638, 652-53 (1957), where the Court
held that in an injunction action brought by a neighbor to remove a building
constructed in violation of a zoning ordinance, a balancing test applies.
The balancing test in Thompson requires the trial court to weigh the
"relative convenience or inconvenience, the relative injury sought to be
cured as compared with the hardship of injunctive relief."  Id. at 509, 129 A.2d  at 652.  Hanson-Walbridge Funeral Home emphasized that Thompson dealt
with private landowners where it was possible to compare the "respective
hardships" and noted that the "harm upon development of the town as a whole
. . . cannot be weighed against the financial loss to the defendant."  139
Vt. at 295-96, 427 A.2d  at 370.
     The issue left open in Hanson-Walbridge Funeral Home is present here
since the Town seeks a mandatory injunction to require defendant to tear
down his enclosure or that part of the enclosure that reduces the set-back
by two feet and the trial court refused to issue the injunction.  The
question is whether the trial court had such discretion.
     There is a split of authority on which of the equitable requirements
for injunctive relief must be shown if a governmental entity seeks to enjoin
a violation of a statute or ordinance, and especially when a municipality
seeks a mandatory injunction to require a property owner to remove a
structure erected in violation of an ordinance.  Generally, where a statute
authorizes a municipality or public agency to seek an injunction in order to
enforce compliance with a local ordinance or state statute, and is silent as
to the injury caused, the municipality is not required to show irreparable
harm or the unavailability of an adequate remedy at law before obtaining an
injunction; rather, all that must be shown is a violation of the ordinance.
See, e.g., Johnson v. Murzyn, 1 Conn. App. 176, 180-81, 469 A.2d 1227, 1230
(1984).  The divergence of views comes on whether the state or municipality
must also show that the balance of equities lies on the side of issuance of
the injunction.
     Some states hold that it is also inappropriate to allow the trial court
to balance the equities in a statutory injunction case, reasoning that
         there is no need for judicial accommodation of the
         defendant's use to that of the plaintiff.  For a court
         to do so would be to usurp the legislative function.
         Specifically, in the case now before us, if the defend-
         ants can continue the unlawful use of the property
         after complying with the relief granted on remand, the
         trial court's judgment would have worked to rezone the
         land with conditions, notwithstanding the fact that the
         power to do so is reserved to the town board alone.

Little Joseph Realty, Inc. v. Town of Babylon, 41 N.Y.2d 738, 745, 395 N.Y.S.2d 428, 433-34, 363 N.E.2d 1163, 1168 (1977).  See also Metropolitan
Development Comm'n v. Douglas, 390 N.E.2d 663, 666 (Ind. App. 1979).  In
Ackerman v. Tri-City Geriatric & Health Care, Inc., 55 Ohio St. 2d 51, 378 N.E.2d 145, 149 (1978), an action to enjoin the operation of an unlicensed
nursing home, the Supreme Court of Ohio held that the Director of Health did
not need to show irreparable injury or lack of an adequate legal remedy once
he had shown the statutory violation, and that it would be inappropriate to
balance the equities because statutory provisions "which authorize a govern-
mental agent to sue to enjoin activities deemed harmful by the [legislature]
are not designed primarily to do justice to the parties but to prevent harm
to the general public."  Id. at 57, 378 N.E.2d  at 149 (emphasis in origi-
nal).  See also Plater, Statutory Violations and Equitable Discretion, 70
Calif. L. Rev. 524, 527 (1982) (when there is a continuing violation of
statutory law, the court "has no discretion or authority to balance the
equities so as to permit that violation to continue").  This reasoning is
much the same as our discussion in Hanson-Walbridge Funeral Home.
     Other states still retain the equitable requirement of balancing the
equities.  See, e.g., Town of Shapleigh v. Shikles, 427 A.2d 460, 464-65
(Me. 1981); City of East Providence v. Rhode Island Hosp. Trust Nat'l Bank,
505 A.2d 1143, 1145-46 (R.I. 1986).  In the Shikles and Rhode Island Hosp.
Trust cases, the Supreme Courts of Maine and Rhode Island emphasized that
injunctive relief remains within the discretion of the trial court to be
exercised under basic principles of equity and justice and that the statu-
tory authorization for injunctive relief in zoning cases did not eliminate
that discretion.
     We are faced with two levels of difficulties with the trial court's
action in this case.  The trial court was silent on why it declined to grant
the injunction.  Since it refused to grant the injunction, it is fair to
assume that it balanced the equities and found that they tipped in defend-
ant's favor.  We are left to speculate, however, on the grounds relied upon
by the trial court in denying the injunction request.  Even if we accept
that it could balance the equities in this case, we cannot fairly review the
trial court's action and must reverse and remand for an explicit statement
of the balance struck.  See, e.g,, McCormick v. McCormick, 150 Vt. 431, 438,
553 A.2d 1098, 1103 (1988).
     The second level of difficulty is with the balancing of the equities in
this case.  For the guidance of the trial court on remand, we must answer
the question left open by Hanson-Walbridge.  We hold that the trial court
has only limited discretion to refuse to issue a mandatory injunction in a
case like this.  Hanson-Walbridge Funeral Home teaches that trial courts
cannot weigh the injury to the public of a property use in violation of the
zoning ordinance against the cost of compliance to defendant. 139 Vt. at
296, 427 A.2d  at 370.  Normally, we must assume that the public injury
outweighs the private cost.
     In considering the issuance of an injunction on remand, the trial
court's decision should focus on two areas of inquiry.  The first is whether
the violation of the zoning ordinance is substantial.  While we recognize
the difficulty in weighing public injury against private loss in the typical
case, there comes a point where the violation is so insubstantial that it
would be unjust and inequitable to require the removal of an offending
structure through a mandatory injunction.  See 4 A. & D. Rathkopf, The Law
of Planning and Zoning { 45.07 at 45-78 (1981).  We emphasize that once the
court finds that a violation is substantial, further balancing of injury and
cost is generally inappropriate.
     The second area is whether the landowner's violation is innocent or,
alternatively, involves conscious wrongdoing.  See, e.g., County of Kauai v.
Pacific Standard Life Ins., 65 Haw. 318, 339 n.22, 653 P.2d 766, 781 n.22
(1982).  Courts have generally found that a conscious decision to go for-
ward, in the face of a direction not to from the regulatory body, outweighs
factors pointing against the issuance of a mandatory injunction.  See, e.g.,
Planning and Zoning Comm'n v. Desrosier, 15 Conn. App. 550, ___, 545 A.2d 597, 601 (1988); Town of East Hampton v. Buffa, 549 N.Y.S.2d 813, 815 (App.
Div. 1990).  An injunction may be an excessive remedy where the nonconform-
ing use was constructed without knowledge that it violated the zoning
ordinance.  See Hargreaves v. Skrbina, 662 P.2d 1078, 1081 (Colo. 1983) (no
injunction can be issued against construction in violation of set-back
requirement where permit allowing construction was given erroneously by
city).
     The record does not disclose whether the factors that would allow
denial of the injunction were present in this case, because the trial court
made no findings in those areas.  Defendant testified and argued that he
went forward with the construction because the enclosure encroached on the
set-back only a few inches more than former porch roof.  An additional
encroachment of a few inches might well not be substantial enough to warrant
a mandatory injunction.  Nor do we preclude the possibility that the trial
court could find that a two-foot encroachment into the set-back was insub-
stantial in this case.  Even if defendant's measurements were inaccurate, it
is possible that defendant believed in good faith that he had not reduced
the set-back more than a few inches.  The question may, in turn, depend on
whether the former porch roof overhang is counted in determining the set-
back.  We leave the resolution of these questions to the trial court on
remand.
     The second issue is whether the $1000 fine was properly imposed under
24 V.S.A. { 4444(a).  That statute provides that a person who violates a
zoning ordinance "shall be fined not more than fifty dollars for each
offense."  It goes on to state that each day the violation continues con-
stitutes a separate offense.  It is clear from the statutory wording that
some fine, up to $50, must be imposed for each offense and that each day of
violation is a new offense.
     Plaintiff's objection to the fine imposed by the trial court is that it
set the daily fine at fifty dollars but recognized only twenty days of dura-
tion, although the violation has continued for a much longer time.  The
effect of the trial court's order is to deprive the Town of a fine for days
of violation beyond twenty.
     A claim almost identical to that made by the Town in this case was made
in Village of Sister Bay v. Hockers, 106 Wis. 2d 474, 317 N.W.2d 505 (Wis.
App. 1982).  The relevant Wisconsin statute imposed both a minimum and a
maximum fine and stated that each day of violation of the zoning ordinance
was a separate offense.  The trial court imposed the minimum daily fine
amount but limited its accrual to only 100 days even though the violation
continued for 778 days.  The Court of Appeals modified the judgment, holding
that the trial court had no authority to recognize only part of the time
period during which the defendant was in violation of the zoning ordinance.
The court held that a continuous assessment was fair in light of the con-
tinued benefit to defendant from the violation.  106 Wis. 2d at 479-80, 317 N.W.2d  at 507-08.
     We adopt the holding of the Wisconsin case under our statute.  As long
as defendant has the benefit of the zoning ordinance violation, the statute
requires that he pay a daily fine.  The cap imposed by the trial court
limited defendant's exposure and prevented the Town from bringing future
actions should defendant continue to violate the ordinance.  The statute
does not authorize such a cap. (FN1)
     The trial court imposed the maximum daily penalty in this case under
the assumption it could cap the overall fine paid by defendant.  Since the
assumption was false, the trial court may choose to amend the daily fine in
light of the violation of the ordinance it found to be present.  The fine
is, therefore, reversed and remanded for this purpose.
     Reversed and remanded.




                                        FOR THE COURT:




                                        Associate Justice



FN1.         Both sides assume that the statute creates a civil penalty.  We
accept this characterization and do not decide its validity.