In re Letourneau

In re Letourneau  (97-403); 168 Vt. 539; 726 A.2d 31

[Filed 24-Dec-1998]


       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, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 97-403


In re Appeals of Phillip Letourneau	                 Supreme Court

                                                         On Appeal from
                                                         Environmental Court

                                                         September Term, 1998


Merideth Wright, J.

       Charles D. Hickey, St. Johnsbury, for Appellants.

       Glenn C. Howland of McKee, Giuliani & Cleveland, P.C., Montpelier, for
  Appellee.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       DOOLEY, J.   Phillip Letourneau (landowner) appeals from a decision of
  the environmental court imposing a civil fine and awarding injunctive
  relief in connection with an addition he placed on his home in Derby
  without a zoning permit and in violation of applicable setback
  requirements.  Landowner raises a variety of constitutional, statutory and
  evidentiary issues in challenging the determination, also taking the
  position that the town should be estopped from bringing this enforcement
  action and that the environmental court exceeded its jurisdiction in
  ordering the removal of the addition before any sale of landowner's home. 
  We affirm.

       Many of the trial court's findings are undisputed and we summarize
  them here:  The home in question is located on landowner's farm of
  approximately 184 acres on Holland Road in an area of Derby designated a
  "rural lands" district by the town's zoning ordinance.  The building, and
  landowner's title to it, antedate the Derby zoning ordinance, enacted in
  1977.  The ordinance contains a 50-foot setback requirement for homes in
  this district.  All but the rear four feet of the house are located within
  the setback zone from Holland Road.  As of the time the zoning 

  

  ordinance went into effect, the house included a roofed porch, six feet
  deep, along the front facing Holland Road and one side of the building. 
  There was also a set of three steps leading to the porch.

       In 1994, landowner's mother lived at his home during a period of
  convalescence and, because of her physical needs, occupied the living room. 
  Anticipating that such a situation might recur, landowner decided in 1995
  to expand the living room.  To build onto the side of the house outside of
  the setback area was deemed expensive and inconvenient because it would
  have required the removal of a garage, woodshed and/or mud room.  Landowner
  therefore decided to expand in the direction of the porch, which by then
  had become dilapidated.

       A neighbor of landowner, Susan Judd, was in 1995 the chair of the
  Derby Planning Commission and had recently served as the town's zoning
  administrator.  Prior to beginning construction on the living room
  expansion, landowner asked Judd if he needed a permit to tear down and
  rebuild his porch.  He did not tell Judd that he intended to enlarge the
  enclosed living space of the house into the area occupied by the porch, nor
  did he tell her that his plan included expanding the building's footprint
  beyond that of the porch structure.  According to the environmental court,
  Judd told landowner "that she did not anticipate a problem with his plans. 
  She did not tell [landowner] that the project did or did not require a
  permit."

       Based upon this discussion, landowner commenced construction.  Judd
  said nothing further to landowner when she drove by his home and noticed he
  was removing the porch.  In place of the porch, landowner constructed an
  L-shaped addition, 12 feet deep, extending 24 feet along the front of the
  house and 21 feet along one side.  The trial court determined that this
  "increased the degree of nonconformity of the porch [with the setback
  requirement] by an additional six feet to the front and to the side (or an
  additional three feet in the area formerly occupied by the front steps[)]." 
  After landowner had made substantial progress on this addition, Judd
  stopped by the house, told landowner he needed a zoning permit, helped him
  fill out an application and told him to see the town's zoning
  administrator.  The zoning administrator denied the application based on

  

  non-compliance with the 50-foot setback requirement and advised landowner
  to seek a variance.  While the application process was ongoing, landowner
  completed work on the addition.

       Following a public hearing, the town's zoning board of adjustment
  denied the variance request on December 15, 1995 and, thereafter, the
  administrator sent landowner a formal notice of zoning violation.  At this
  point, judicial proceedings began with landowner filing a declaratory
  judgment action in the superior court seeking a determination that the
  setback requirement in the zoning ordinance is unconstitutional.  Landowner
  appealed the zoning violation notice to the board of adjustment, which
  affirmed the administrator's decision on January 4, 1996.  Landowner then
  appealed both the board of adjustment's variance decision and its
  determination as to the zoning violation to the environmental court. 
  Finally, the town in March 1996 filed an enforcement action in the
  environmental court seeking the imposition of civil fines and a permanent
  injunction requiring landowner to remove the addition to his home.  These
  four separate proceedings were ultimately consolidated before the
  environmental judge.(FN1)

       Landowner requested a jury trial on the enforcement action, but the
  environmental court denied the motion, and an attempt to obtain
  interlocutory review of this decision was unsuccessful. The trial court
  thereafter conducted an evidentiary hearing on the variance matter and, on
  October 3, 1996, entered an order reaching the same determination as the
  board of adjustment.  The court then heard evidence on the remaining three
  matters and on June 19, 1997 issued an opinion rejecting landowner's
  constitutional claim and determining that he had violated the zoning
  ordinance by building the addition.   On August 22, 1997, the environmental
  court entered its final judgment (a) assessing a civil fine of $3,090,
  amounting to $10 per day for 309 days, and (b) ordering landowner, or, if
  applicable, his heirs and assigns, to remove the addition and to restore
  the house to its previous footprint prior to any transfer of interest in
  the property.

       On appeal, landowner raises seven issues, contending that: (1) the
  setback requirement of 

  

  the zoning ordinance is unconstitutional because it is not reasonably
  related to public health, safety, morals and general welfare; (2) there is
  no prohibition in the zoning ordinance or statute against the expansion of
  a non-complying structure; (3) the town should be estopped from enforcing
  the zoning ordinance; (4) the town is guilty of selective enforcement of
  its zoning ordinance; (5) the injunction was improper; (6) landowner was
  entitled to a jury trial; and (7) the environmental court improperly
  excluded evidence of the town's violation of state building requirements. 
  We take these claims in order.

       First, landowner challenges the constitutionality of the setback
  requirement in the zoning ordinance, arguing that the town has not made a
  sufficient showing of relationship of the setback requirement to the public
  good.  Zoning requirements are constitutional if there remains for the
  landowner "some practical use of his land, and the existence of a public
  good or benefit of sufficient magnitude to justify the burdening of the
  affected property."  Galanes v. Town of Brattleboro, 136 Vt. 235, 240, 388 A.2d 406, 409 (1978).  The zoning regulation must be reasonably related "to
  public health, safety, morals or general welfare." Id., 388 A.2d  at 410;
  see also State v. Sanguinetti, 141 Vt. 349, 351, 449 A.2d 922, 924 (1982)
  (same).  It is not, of course, our role to choose a regulatory approach
  among the many that might be reasonable.  Thus, "Courts will not interfere
  with zoning unless it clearly and beyond dispute is unreasonable,
  irrational, arbitrary or discriminatory," City of Rutland v. Keiffer, 124
  Vt. 357, 367, 205 A.2d 400, 407 (1964), and zoning ordinances are presumed
  valid, see McLaughry v. Town of Norwich, 140 Vt. 49, 54, 433 A.2d 319, 322
  (1981).
  
       The United States Supreme Court long ago determined that as a general
  proposition setback requirements are valid as reasonably related to the
  public health, safety and welfare.  See Gorieb v. Fox, 274 U.S. 603, 608-10
  (1927).  Numerous general purposes of zoning regulation are promoted by
  setback regulation.  See 24 V.S.A. § 4302(a) (goals of zoning including
  "access to adequate light and air," avoiding "overcrowding of land and
  buildings," and protection against traffic congestion and "the invasion of
  through traffic").  For example, requiring that buildings 

  

  be set back from a highway protects sight lines for automobiles and ensures
  emergency access to the buildings for fire protection purposes without
  blocking the highway.

       Although there are justifications for setback regulation generally,
  landowner argues that there is no justification for applying setback
  restrictions to him because the environmental court found:

    [T]he addition as built does not alter the essential character of the
    neighborhood, does not impair the appropriate use or development of
    adjacent property, does not reduce access to renewable energy resources,
    and is not detrimental to the public welfare.
  
       We agree with landowner that the leading case of Village of Euclid v.
  Ambler Realty Co., 272 U.S. 365, 388 (1926), demands that we focus not on
  the "abstract" but on the challenged zoning requirement "in connection with
  the circumstances and the locality."  We do not agree, however,  that the
  municipality must specially prove that the public safety and welfare is
  advanced by application of the zoning regulation to the land in issue here,
  and that we must scrutinize the zoning ordinance on a parcel-by-parcel
  basis.  The setback restriction is part of a regulatory scheme that allows
  for variances in appropriate circumstances -- some of which were the reason
  for the environmental court's finding quoted above.  See 24 V.S.A. §
  4468(a)(4) (requiring a variance if it, inter alia, "will not alter the
  essential character of the neighborhood or district in which the property
  is located, substantially or permanently impair the appropriate use or
  development of adjacent property, reduce access to renewable energy
  resources, nor be detrimental to the public welfare").  It is reasonable
  for the town to apply uniform setback requirements within a zoning district
  to avoid arbitrary or discriminatory requirements.   The setback
  requirement withstands constitutional scrutiny in this case.

       Landowner next contends that the trial court should have dismissed the
  enforcement action because neither the applicable zoning ordinance nor its
  enabling legislation prohibit the expansion of a noncomplying structure in
  the setback area.  Much of this argument is based on a 1980 repeal of 24
  V.S.A. § 4408(c), part of the Vermont Planning and Development Act. 
  Section 4408(a)(2) 

  

  defines a "[n]oncomplying structure" as "a structure or
  part thereof not in conformance with the zoning regulations covering
  building bulk, dimensions, height, area, yards, density or off-street
  parking or loading requirements, where such structure conformed to all
  applicable laws, ordinances and regulations prior to the enactment of such
  zoning regulations." The section further defines a "[n]onconforming use" as
  "a use of land or a structure which does not comply with all zoning
  regulations where such use conformed to all applicable laws, ordinances and
  regulations prior to the enactment of such regulations."  24 V.S.A. §
  4408(a)(1).  Landowner points out that prior to 1980, § 4408(c) of the Act
  contained the following language:

    Municipalities may . . . provide for the termination of non-conforming
    uses by specifying in a zoning regulation the period or periods in which
    non-conforming uses shall be required to cease and by providing formulae
    whereby such compulsory terminations may be fixed so as to allow for the
    conversion of such non-conforming uses, and for the amortization of
    investment.  . . . A non-complying structure may continue in perpetuity. 
    However, a by-law may provide that the extension or enlargement of the
    particular aspect or portion of that structure which is non-complying shall
    not be permitted.

  1967, No. 334 (Adj. Sess.) § 1, formerly codified as 24 V.S.A. § 4408(c),
  repealed 1979, No. 174 (Adj. Sess.), § 18.  Landowner's statutory argument
  is that, because his house was a nonconforming structure prior to his
  non-permitted construction project, the repeal of the last sentence of
  former subsection (c) means that the town may not prohibit "the extension
  or enlargement of the particular aspect or portion of that structure which
  is non-complying."

       As enacted  in 1967, the principal purpose of § 4408(c) was to allow
  municipalities to provide for the phase-out of nonconforming uses by
  setting a time period by which a use must be terminated.  The statute did
  not, however, allow for the phase-out of noncomplying structures.  See
  Sanguinetti, 141 Vt. at 352, 449 A.2d  at 924 (summarizing former § 4408(c)
  as stating that, "while nonconforming uses could be amortized out of
  existence over a period of time, nonconforming structures were entitled to
  remain") (emphasis in original).  These structures could exist in
  perpetuity, but the municipality could prohibit the enlargement of the
  noncomplying aspect 

  

  or portion of the structure.  By repealing § 4408(c), the Legislature was
  removing the authorization to phase out nonconforming uses.  See 1979, No.
  174 (Adj. Sess.), § 18 ("24 V.S.A. § 4408(c), relating to termination of
  non-conforming uses, is repealed").

       Rather than eliminating the authorization to prohibit enlargement of
  noncomplying structures, the repeal of § 4408(c) brought noncomplying
  structures and nonconforming uses under the same regulatory regime.  This
  occurred because the Planning and Development Act defined a noncomplying
  structure as a nonconforming use.  See 24 V.S.A. § 4408(a)(1) (definition
  of nonconforming use includes a structure "which does not comply with all
  zoning regulations"); In re Stowe Club Highlands, 164 Vt. 272, 278, 668 A.2d 1271, 1276 (1995) ("[t]he statute defines a noncomplying structure as
  a nonconforming use").  That common regime allows municipalities to
  "regulate and prohibit expansion and undue perpetuation of nonconforming
  uses" and to control "enlargement of a structure containing a
  non-conforming use."  24 V.S.A. §§ 4408(b), 4408(b)(4).  While zoning
  ordinances enacted under the authority granted by the Act can and do
  distinguish between nonconforming uses and noncomplying structures, see
  Stowe Club Highlands. 164 Vt. at 278-79, 668 A.2d  at 1276, the distinction
  is no longer relevant to the ability of a municipality to prevent expansion
  of the use or structure.

       Landowner also argues that the zoning ordinance does not allow the
  town to prohibit expansion of a noncomplying structure because the
  prohibition on expansion relates to a "non-conforming structure."   Like
  the Act, the ordinance distinguishes noncomplying structures from other
  nonconforming uses.  Section 302 of the ordinance begins with an underlined
  reference to "[n]on-complying structures," defined in a manner that tracks
  the language of 24 V.S.A. § 4408(a)(2), and goes on to state in relevant
  part that "[a]ny non-conforming structure . . . [s]hall not be moved,
  enlarged, altered or extended in any manner that would make the
  non-conforming structure more non-conforming."  We believe that the switch
  between the terms "non-complying structure" and "non-conforming structure"
  represents a drafting imprecision, but not a change of meaning. 
  Landowner's argument to the contrary would leave the defined term
  "non-complying 

  

  structure" without use in the regulatory language, and the term used to
  define the regulatory policy, "non-conforming structure," without a
  definition.  Because it is obvious the intent of this provision is to
  provide for the regulation of noncomplying structures, the reference to a
  "non-conforming structure" is the sort of clerical error that a court
  construing the ordinance should disregard.  See In re C.S., 158 Vt. 339,
  343, 609 A.2d 641, 643 (1992) (eschewing "literal interpretation" of
  enactment in face of "clerical error in transcription, writing, or
  redrafting").  Thus, we cannot agree with landowner that the ordinance is
  either invalid or fails to prohibit the expansion of noncomplying
  structures.

       Landowner's third contention on appeal is that the trial court should
  have concluded that the town is estopped from pursuing any enforcement
  action against him concerning violation of the setback rule because of the
  actions of his neighbor, Susan Judd, who was chair of the town planning
  commission.  Under Vermont law, a party seeking to invoke the doctrine of
  equitable estoppel must establish four elements:

   (1) the party to be estopped must know the facts; (2) the party to be
   estopped must intend that its conduct shall be acted upon, or the conduct
   must be such that the party asserting estoppel has a right to believe it is
   intended to be acted upon; (3) the party asserting estoppel must be
   ignorant of the true facts; and (4) the party asserting estoppel must
   detrimentally rely on the conduct of the party to be estopped.

  Agency of Natural Resources v. Godnik, 162 Vt. 588, 592, 652 A.2d 988, 991
  (1994).  Estoppel, which is "based upon the grounds of public policy, fair
  dealing, good faith, and justice," is rarely invoked against the
  government; that result "is appropriate only when the injustice that would
  ensue from a failure to find an estoppel sufficiently outweighs any effect
  upon public interest or policy that would result from estopping the
  government in a particular case."  Id. at 592-93, 652 A.2d  at 991.  The
  trial court determined that, in Derby, "[a] zoning permit is required for
  any structural alteration or enlargement of a building" regardless of any
  setback issues.  We agree with landowner that this is a "fact" for purposes
  of the estoppel elements enumerated above.  We can further assume arguendo
  that Judd knew this fact, that landowner was ignorant of it, and that

  

  Judd's status as chair of the planning board was such that representations
  made by her would be sufficient to bind the town in these circumstances. 
  See My Sister's Place v. City of Burlington, 139 Vt. 602, 609, 433 A.2d 275, 279 (1981) (government can be estopped by acts of agent within his or
  her authority).

       We nevertheless agree with the trial court that this is not one of
  those rare situations in which it is appropriate to estop a governmental
  entity.  "[C]onsistent with the requirement of good faith, estoppel will
  not be invoked in favor of a party whose own omissions or inadvertence
  contributed to the problem."  Godnik, 162 Vt. at 593, 652 A.2d  at 991
  (citation and internal quotation marks omitted); see also In re Barlow, 160
  Vt. 513, 523-24, 631 A.2d 853, 859-60 (1993) (estoppel against government
  agency inappropriate where it "had an incomplete knowledge of the relevant
  facts").  Landowner's failure to disclose to Judd that he intended to
  expand his house further into the setback zone did not merely contribute to
  the problem -- it is the problem around which this case revolves.  We do
  not assume that the town would simply have overlooked the possibly less
  significant zoning transgression of remodeling without a permit if it did
  not involve enlarging a noncomplying structure.  Nevertheless, it would be
  inconsistent with the relevant considerations of public policy, good faith,
  fair dealing and justice to estop a governmental entity in connection with
  inferences drawn by one of its officials based on a disclosure to her that
  was lacking the critical facts to evaluate the proposed land development. 
  We conclude that landowner has failed to demonstrate the first element of
  the test and that the town is not estopped from enforcing the setback
  requirement against landowner.

       Landowner's fourth contention on appeal is that the town has violated
  his right to equal protection of the laws by engaging in discriminatory
  enforcement of the zoning ordinance.  His theory is twofold.  First he
  argues that the evidence he submitted of nonenforcement of the setback
  restrictions against other landowners required the court to determine he
  was the victim of discriminatory enforcement even without a finding of
  improper motive.  Second he argues that if improper motive was required, he
  demonstrated that town officials acted in retaliation against 

  

  a sign on his property.

       Landowner's theory is based upon the leading case of Yick Wo v.
  Hopkins, 118 U.S. 356, 373-74 (1886): "Though the law itself be fair on its
  face and impartial in appearance, yet, if it is applied and administered by
  public authority with an evil eye and an unequal hand, so as practically to
  make unjust and illegal discriminations between persons in similar
  circumstances, material to their rights, the denial of equal justice is
  still within the prohibition of the Constitution."  In the context before
  us, the Yick Wo standard requires the landowner to show more than that the
  municipality has failed to enforce the zoning ordinance in similar
  circumstances.  See Greenawalt v. Zoning Bd. Of Adjustment, 345 N.W.2d 537,
  546 (Iowa 1984) ("mere laxity of enforcement or some exercise of selective
  enforcement does not in itself establish a constitutional violation");
  People v. Goodman, 290 N.E.2d 139, 143 (N.Y. 1972) (one who alleges
  discriminatory enforcement must meet the heavy burden of showing conscious,
  intentional discrimination or a consciously practiced pattern of
  discrimination).  Thus, the landowner must meet a two-part test:

    (1) the person, compared with others similarly situated, was
    selectively treated; and

    (2) . . . such selective treatment was based on impermissible
    considerations such as race, religion, intent to inhibit or punish the
    exercise of constitutional rights, or malicious or bad faith intent to
    injure a person.

  Crowley v. Courville, 76 F.3d 47, 52-53 (2d Cir. 1996) (quoting LaTrieste
  Restaurant & Cabaret Inc. v. Village of Port Chester, 40 F.3d 587, 590 (2d
  Cir. 1994)).

       Landowner argues that the two-part test should not be employed because
  the zoning administrator does not have the discretion to refuse to enforce
  the zoning ordinance.  He presented evidence that other setback violations
  in the town were ignored or were authorized by issuance of permits that
  were inconsistent with the ordinance.  He argues that this evidence should
  have been sufficient to demonstrate violation of his right to equal
  protection of the laws.

       Although a zoning administrator must enforce the zoning ordinance, the
  nature of the 

  

  remedy sought is discretionary.  See Richardson v. City of Rutland, 164 Vt.
  422, 425, 671 A.2d 1245, 1248 (1995).  Thus, we disagree with the premise
  of landowner's argument.  In any event, we are unwilling to rely on
  variations in standards for issuing permits or differences in enforcement
  approaches to find unconstitutional discrimination.  Mistakes and
  inadequacies will inevitably occur in the process of zoning administration. 
  When they do, these irregularities do not have the effect of leaving the
  municipality without an ability to to enforce its zoning ordinance against
  anyone.

       Thus, landowner must meet the second part of the two-part test.  He
  argues he did so through evidence adduced at trial concerning a large sign
  on his garage that emphatically enjoins state police, fish and game
  wardens, border patrol officers and customs agents to stay off his
  property, warning: "Posted to All State Officials . . . Don't Beware of the
  Dog . . . Beware of Owner."  According to landowner, there was evidence at
  trial that a former customs officer "was one of the proponents of the
  enforcement action," and he is therefore entitled to a determination that
  the town retaliated against his expression of hostility to customs officers
  and other government officials.

       The trial court determined that it "cannot find that any action of any
  Town official was taken based on the contents of the sign which [landowner]
  maintains on his property, and therefore cannot find that any impermissible
  discriminatory enforcement has occurred in this case."  This is a factual
  finding which we must uphold unless, viewing the evidence in the light most
  favorable to the prevailing party and disregarding any modifying evidence,
  the finding is clearly erroneous.  See Bianchi v. Lorenz, 166 Vt. 555, 562,
  701 A.2d 1037, 1041 (1997).  Landowner provides no basis for us to
  determine that this key factual finding, the lack of a causal link between
  the sign and the initiation of enforcement proceedings, is erroneous, much
  less clearly so.  Since there is no finding of impermissible purpose, and
  no showing of malicious or bad faith intent to injure, landowner has failed
  to make out a case of unlawful discrimination.

       Landowner's fifth contention is that the court should not have issued
  the mandatory 

  

  injunction.  Landowner agrees that the standard the town must meet to
  obtain this relief is set out in Town of Sherburne v. Carpenter, 155 Vt.
  126, 582 A.2d 145 (1990).  We held in Carpenter, and have subsequently
  reiterated, that "[i]f the zoning violation is substantial and involves
  conscious wrongdoing, the [municipality] is entitled to an injunction,
  including a mandatory injunction to remove an offending structure, as a
  matter of course."  Fenwick v. City of Burlington, ___ Vt. ___, ___, 708 A.2d 561, 566-67 (1997) (stressing that no balancing of equities is
  required and citing Carpenter, 155 Vt. at 131-32, 582 A.2d at 149). 
  Landowner contends that any violation here was neither substantial nor the
  result of conscious wrongdoing.

       The trial court found to the contrary.  Specifically, the court
  determined that the violation was substantial because "[t]he addition was
  twice the depth into the setback of the existing noncomplying porch."  On
  the issue of conscious wrongdoing, the court accepted the proposition that
  a project within the confines of the existing porch would not have met the
  standard, given landowner's interactions with Judd.  It found, however,
  that what landowner actually built went "well beyond" the intention he
  expressed to Judd and ruled, therefore, that the wrongdoing was conscious.

       We have not previously clarified what standard of review applies to
  the determination required by Carpenter.  See Fenwick, ___ Vt. at ___, 708 A.2d  at 567.  Landowner contends that our review here should be de novo. 
  The town does not explicitly address the question.

       De novo review is not appropriate in these circumstances.  As noted
  above, our review of factual findings is very limited.  Our Carpenter
  opinion implicitly refers to the relevant determinations as findings of
  fact rather than conclusions of law.  See Carpenter, 155 Vt. at 131-32, 582 A.2d  at 149 ("once the court finds that a violation is insubstantial,
  further balancing of injury and cost is generally inappropriate;" trial
  court "made no findings" as to whether "factors that would allow denial of
  the injunction were present in this case" and, on remand, court "could
  find" that encroachment into setback zone insubstantial).  Elsewhere in the
  opinion, we noted that the whole question of substantiality is relevant
  because in cases of insubstantial violations an 

  

  injunction directing removal would be "unjust and inequitable," id. at 131,
  582 A.2d  at 149, a determination that is inherently discretionary.   In
  Fenwick, ___ Vt. at ___, 708 A.2d  at 565, we noted the "wide discretion,
  reviewable here only for abuse" enjoyed by the trial court in determining
  whether the equities favor a mandatory injunction as sought by an
  intervenor rather than a municipality.  See also Town of Hinesburg v.
  Dunkling, ___ Vt. ___, ___, 711 A.2d 1163, 1171 (1998) (amount of civil
  penalty for zoning violation reviewed only for abuse of discretion).  It
  would be incongruous and illogical to apply a non-deferential standard of
  review when the party seeking the injunction is a municipality and the
  issues have therefore narrowed to the extent of the violation and whether
  there was conscious wrongdoing.

       Whether the task is viewed as an exercise of discretion or the finding
  of fact, the trial court acted within its authority in determining that the
  violation was substantial and that landowner committed it consciously.  A
  six-foot incursion into the setback zone is fully three times more
  significant than the two-foot extension that our opinion in Carpenter
  suggested was potentially, but not necessarily, insubstantial.  See
  Carpenter, 155 Vt. at 132, 582 A.2d  at 149.  On the issue of willfulness,
  given landowner's pre-construction conversation about permitting
  requirements with Judd, a reasonable factfinder might have viewed the
  evidence differently but the trial court was not compelled to do so.  We
  have no basis for disturbing the trial court's decision to award injunctive
  relief.

       Finally, landowner raises procedural issues about the trial of the
  cases.  His main argument  is that the environmental court erred in
  refusing his request for a jury trial.  He relies not on a right to trial
  by jury established in a statute or constitutional provision, but rather on
  the Equal Protection Clause of the 14th Amendment.  Specifically, he
  invokes Lindsey v. Normet, 405 U.S. 56, 77 (1972), in which the Supreme
  Court determined that a state violates the Equal Protection Clause when it
  grants a right of appeal to some litigants while "capriciously or
  arbitrarily" denying the same right to others.  See also Humphrey v. Cady,
  405 U.S. 504, 508-13 (1972) (discussing similar equal protection
  implications of denying jury trials to some, but not all, 

  

  similarly situated litigants).

       As landowner points out, the Legislature has created two distinct
  avenues a municipality may use to seek judicial enforcement of zoning
  ordinances.  One alternative is the avenue pursued here -- a full-blown
  civil action pursuant to chapter 117 of Title 24.  See 24 V.S.A. §§ 4444,
  4445; see also 4 V.S.A. § 1001(b) (vesting jurisdiction over zoning actions
  in environmental court).  This alternative does not include a right to
  trial by jury.  The second alternative, which envisions a more informal
  decision-making process at least in its initial phase, involves bringing
  the enforcement action as a "civil ordinance violation" in the judicial
  bureau.  See 4 V.S.A. § 1102(b)(2); 24 V.S.A. § 1974a(b), (d).  This
  proceeding places the parties in the first instance before a hearing
  officer of the judicial bureau, with the district court serving as an
  appellate tribunal.  See 4 V.S.A. §§ 1106-07.  Such appeals are de novo,
  with the defendant enjoying the right to trial by jury.  See id. §
  1107(a).(FN2)

       Relying on Lindsey and Humphrey, landowner argues that he is denied
  equal protection of the laws by a system that gives the municipality
  unfettered discretion to determine whether he may have a jury trial. 
  Absent a suspect classification or a violation of a fundamental right, a
  legislative classification does not deny equal protection of the laws if it
  is rationally related to a legitimate public purpose.  See Hodgman v. Jard
  Co., 157 Vt. 461, 464, 599 A.2d 1371, 1373 

  

  (1991). Unless the nature of the underlying action warrants such treatment,
  classifications in determining the right to trial by jury do not involve a
  fundamental right.  See Jackson Water Works, Inc. v. Public Utils. Comm'n,
  793 F.2d 1090, 1096 (9th Cir. 1986); Reed v. Brunson, 527 So. 2d 102, 118
  n.10 (Ala. 1988); Wilson v. Cohen, 610 A.2d 1177, 1184 (Conn. 1992);
  Rudolph v. Massachusetts Bay Ins. Co., 472 So. 2d 901, 905 (La. 1985).  
  Zoning enforcement is not the type of case to implicate a fundamental
  right.  See Smith v. Town of St. Johnsbury, 150 Vt. 351, 357, 554 A.2d 233,
  238 (1988) (no fundamental right involved for procedures in amending zoning
  ordinance).

       In determining whether there is a rational basis for the distinctions
  drawn here, we must look more closely at the statutory schemes.   The
  legislature has explicitly provided that, "[i]f the penalty for all
  continuing civil ordinance violations is greater than $500.00, or
  injunctive relief, other [than an order that the violation cease], is
  sought, the action shall be brought in superior court."(FN3) 24 V.S.A. §
  1974a(b).  This case, involving penalties well in excess of $500 and a
  request for an injunction beyond a mere order to stop violating the
  ordinance, is within this provision.  The Town could seek full relief only
  by choosing the enforcement route that did not involve the appellate right
  to a trial by jury.

       There are a number of legitimate reasons for the procedural
  classifications the Legislature has created.  The nature of the relief
  involved corresponds to the line between legal and equitable actions, upon
  which the right to trial by jury has often turned.  See Maddalone v.
  C.D.C., Inc., 765 P.2d 1047, 1049 (Colo. Ct. App. 1988).  Further, the
  Legislature could decide that equitable actions require speedy relief that
  cannot wait for a jury trial after a violation determination by a judicial
  officer.  See Wilson, 610 A.2d  at 1184.  The specialized jurisdiction of
  the environmental court over zoning matters is a legislative determination
  that these matters warrant special expertise.  The Legislature can decide
  that application of this expertise is necessary in enforcement 

  

  cases involving substantial penalties.  Because there are rational bases of
  the legislative classifications, we conclude there is no denial of equal
  protection of the laws.

       Landowner's last argument is that the trial court erred when it
  refused to admit, and rely upon, evidence of the town's failure to obtain
  certain wastewater permits in connection with a building that had recently
  been constructed by the municipality.  Analogizing to V.R.Cr.P. 32(c)(4),
  which permits a criminal defendant to present evidence at sentencing,
  landowner maintains that the evidence at issue was relevant because it
  relates to mitigating circumstances that might have led to a more lenient
  disposition.  Even under a broad standard of relevancy, see V.R.E. 401, we
  fail to see how this evidence  is relevant.  

       In any event, the trial court has broad discretion to exclude
  marginally relevant evidence that is remote, tends to confuse the issues or
  causes a waste of time.  See V.R.E. 403; LaBrie v. Phillips, 150 Vt. 652,
  653, 553 A.2d 149, 150 (1988) (mem.); Contractor's Crane Serv. Inc. v.
  Vermont Whey Abatement Auth., 147 Vt. 441, 450, 519 A.2d 1166, 1173 (1986). 
  This evidence threatened to create a side show over whether the town had
  properly obtained a permit on an unrelated project.  Even if admitted, the
  environmental judge could give it no weight, and her evidentiary ruling
  necessarily involved this determination of its weight.  We find no error in
  its exclusion.

       Affirmed.

                               FOR THE COURT:



                               _______________________________________
                               Associate Justice


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                                  Footnotes


FN1.  The administrative judge assigned the environmental judge to
  Orleans Superior Court to hear the declaratory judgment action.  All other
  matters were in the environmental court.

FN2.  The judicial bureau was actually established after the
  environmental court's decision in this case.  See 1997, No. 121 (Adj.
  Sess.), § 4.  A similar regime in the traffic and municipal ordinance
  bureau, identical in all material respects to the present one, was
  applicable at the times relevant to the instant case.  See 1993, No. 237
  (Adj. Sess.) §§ 1-5 (providing for proceedings before "traffic and
  municipal ordinance bureau").

       We further note that under both regimes, the legislature provided for
  procedural trade-offs.  Defendants before the judicial bureau (as with its
  predecessor, the traffic and municipal ordinance bureau) may obtain a de
  novo jury trial as a form of appellate review, but further appeals to this
  Court are discretionary only.  See 4 V.S.A. § 1107(c); 1993, No. 237 (Adj.
  Sess.), § 5;  We need not discuss the question of whether, for purposes of
  equal protection, the non-discretionary appeal that lies from the
  environmental court offsets the lack of jury trial rights in zoning cases
  before that tribunal.  See Lindsey, 405 U.S.  at 77 ("When an appeal is
  afforded . . . it cannot be granted to some litigants and capriciously or
  arbitrarily denied to others").

FN3.  Superior court jurisdiction over zoning matters is now vested in
  the environmental court.  See 4 V.S.A. § 1001(b).