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.
*542 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 noncompliance 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 *543 remove the addition to his home. These four separate proceedings were ultimately consolidated before the environmental judge. 1
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 noncomplying 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,
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,
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.,
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]on-complying 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 “[njonconforming 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. 834 (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 nonpermitted 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.”
*546
As enacted in 1968, the principal purpose of § 4408(e) 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,
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,
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
*547
non-conforming structure. . . [sjhall 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.,
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,
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. “[CJonsistent 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,
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.
*549
Landowner’s theory is based upon the leading case of
Yick Wo v. Hopkins,
“(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,
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,
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,
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,
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,
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,
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,
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,
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. §§ 1106-1107. Such *553 appeals are de novo, with the defendant enjoying the right to trial by jury. See id. § 1107(a). 2
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.,
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.” 3 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 *554 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.,
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.E 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,
Affirmed.
Notes
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.
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 YS.A. § 1107(c); 1993, No. 237 (Adj. Sess.), § 5. We need not discuss the question of whether, for purposes of equal protection, the nondiscretionary appeal that lies from the environmental court offsets the lack of jury trial rights in zoning cases before that tribunal. See
Lindsey,
Superior court jurisdiction over zoning matters is now vested in the environmental court. See 4 YS.A. § 1001(b).