*1 SALT LAKE body corporate COUNTY, politic, Plaintiff and Respondent,
v.
Dan L. KARTCHNER, Defendant and Appellant.
No. 14283.
Supreme Court Utah. 24, 1976.
June *2 time, Backman, exception touching of some Clark & the Boyce, David B. up the distance Marsh, painting. defendant and measured City, for Salt Lake Jeffs property the the to the from front line appellant. carport 20 feet. and determined was County Dam, Lake Paul Van Salt R. days Two mailed a written no- later Jeffs Lewis, Atty., Sawaya, Donald Kent S. stating tice defendant the new enclosed Attys., Lake County Salt Deputy Salt Lake carport permit had been built without a respondent. City, plaintiff and for require- yard and was in violation of front 22-16-7, Zoning ments of Ordi- MAUGHAN, Justice: nances. appeals Defendant decree from a for the surveyor The shows a record ordering district court him to remove point 6½ county lot at a the front line located portion carport of the west situ- feet of a resi- the sidewalk the 1.3 feet from toward ated his property. on The order further measured dence. In 1974 Mr. Jeffs June requires building secure a defendant houses side of the setback of all the on one permit portion for remaining lots, street, the excluding the corner structure, pay plus penalty. the fee a We to be the setback determined requiring reverse the order destruction of cross-examination, ad- feet. Mr. On Jeffs improvement; the and affirm re- the order vicinity of de- mitted in the immediate that quiring a building permit, payment of the there were six structures fendant’s home permit penalty. fee and 22-16-7, no and there had been attempt these the owners about to contact Defendant resides in an area of Salt violations. County Lake During zoned R-l-8. the part 1972, first building he commenced carport his testified enclosed Defendant carport. an addition existing to his Dur- the testimony about $2,000. His about cost ing initial stage construction, a indefinite, is about the record notices cruising building inspector, enforcement notice, with the received a he first when Williams, Mr. emerging observed the in Febru- exception personal contact structure. Mr. testified he left a Williams application did make ary Defendant notice, 1972, May 22, dated betwеen Aft- and a permit variance. building a for door and screen main door of defendant’s for application vari- hearings the two er residence. The notice stated the owner he Defendant admitted ance was refused. should building contact the and zoning de- per cent of сompleted last ten partment for building permit. a Six permit. applying for structure after months later Mr. Williams returned to understanding it was was his He said it neighborhood and left a second notice dat- building and a permissible to commence 7, 1972, ed November in the same manner building permit. Defendant prоcure then as the first. this At time structure carport his the wall of he located testified completed, was almost which was conceded garage neighbor’s it with his by aligning by Mr. Williams. The notice stated next door. addition to the a building failure to have evidence, the foregoing Based permit the structure violated mandatory trial court issued standards of a yard 30-foot front setback. feet to remove ordering defendant 6½ It carport further recited the was ten feet be observed improvement. It should in violation. parallel carport is constructed that the com- 20, 1973, February street; On would the order defendant was wall contacted personally the first the west pel for time to remove wall rear Jeffs, roof, Marvin D. county zoning structure, inspec- tor. The completed feet. structure at this distance 6½ municipality Ordinances of Ordinarily Revised County, provides: preсluded zoning regu enforcing Salt Lake its lations, remained in when its officers have depth yard The minimum of the front of such active the face violations. private ga- buildings for main and for promulgation consti ordinances rages yard a minimum side gov tutes a function. thirty (30) eight (8) feet shall be power usually mаy ernmental not be for *3 feet, existing or the in dis feited the action of local officers buildings fifty (50) per cent where or regard of the ordinance.2 frontage developed, pro- more of the It is a further defendant contention of yard vided that in no case shall a front improper the circumstances render here (20) twenty be less than feet or be re- granting remedy of such a as harsh as a quired thirty (30) than feet. to be more mandatory injunction. Section accessory buildings, pri- All other than U.C.A.1953, 1973,provides amended yard garages, have a side vate which county attorney mаy, in to other addition eight at shall at (8) least feet be located law, provided by in- remedies institute an in (6) least six feet the rear of the main enjoin, junction proceeding re- abate or building. an altera- move unlawful construction for tion. being proceeding equity, This in facts, we sit in review оf the as well as the import3 A statute of similar appeal
law. On
defendant contends the
interpreted
City
in
Snyder v. D. M.
trial
finding
court erred in its
there were Cogdell.4 There the court stated the lan
present.
urges
no laches
He
the failure to
guage
destroy
of the statute did not
zoning
inform him of his violation of the
court,
discretion
require
of a
and did not
ordinance,
notice,
at the time of the first
issuance of
as a matter
May;
in
subsequent
combined with the
si
in every type
of law
and circumstance of
or acquiescence,
lence
until substantial
Further,
violation.
the statute did not nul
Novembеr,
completion
factually
in
consti
lify the rule that under the circumstances
preclude plaintiff
tuted laches and should
particular case,
court,
of a
in
the stat
remedy
harsh
obtaining the
of a
nullify
ute did not
the rule that under
mandatory injunction.
case,
particular
circumstances оf a
court,
equitable pow
in the exercise of its
Estoppel,
ordinarily
waiver or laches
ers, may deny injunctive
against
relief
do not
constitute
defense to
suit for
zoning
violation of a
An in
injunctive
against alleged
relief
viola-
junction
granting
will be denied where the
laws,
tions of the
unless the cir-
prin
of it would
inconsistent
with basic
exceptional. Zoning
cumstances are
or-
ciples
justice
equity,
though
even
dinances are
acts which
scope
within the
of relief available
upon
police power,
rest
and as to vi-
equity
enjoin
courts to
violations of
inducements,
any
olations thereof
reli-
laws.5
ances,
enforcement,
negligence of
or like
merely aggravations
factors are
municipal corporation
When a
justifi-
violation rather than excuses or
seeks
public rights by
vindication of
in
cations therefor.1
junction, in
equity,
a court of
it is on the
Municipal
Corporations
McQuillin,
1. 8A
3. Article 1101h of Vernon’s Revised Civil
(1965,
25.349, pp.
Rev.Vol.),
491-2.
of Texas.
Statutes
Civ.App.,
(1960).
4. Texas
amended, is an distortion obvious simply be- lawful to be a lawful one act judgment, words trial court’s cause had the law and mu- others violated opinion; represented in the were not given nicipal agents adequately had adjudged when the trial court that defend- they some kind notice need not ant give in thе first instance. had to . shall a minimum of remove The trial court should be affirmed. portion of his car- 6.5 feet the west port apply .... shall for [and] CROCKETT, J., the views concurs permit pay building and shall the re- opinion of expressed in dissenting permit portion fees his quired for HENRIOD, carport may addition which remain after C. J. non-compliance Obviously building permit carport, meaning unlawful —not payment of fees construction of a lawful