Hargreaves v. Skrbina , 635 P.2d 221 ( 1981 )

COYTE, Judge.

Plaintiffs appeal the judgment of the trial court denying them mandatory injunctive relief. Defendants Williamson cross-appeal on the issue of the trial court’s award of mandatory injunctive relief as to the drainage system and of damages to plaintiffs’ fence. We affirm in part and reverse in part.

Our examination of the record reveals support for the following pertinent findings of the trial court. Plaintiffs, property owners in the City of Longmont, sued defendants to compel removal of defendants Wil-liamsons’ building. The building in question is part of a block of commercial buildings fronting on a state designated right-of-way in Longmont, Colorado. The buildings at issue here are located along that right-of-way from north to south in the following order: the animal hospital of Hargreaves and Harrison, the Williamsons’ office building, Quality Liquors, and the Soil Conservation District building. With the exception of two buildings, one of which is the Wil-liamsons’, all of these buildings are located approximately 110 feet from the center line of the highway.

Prior to the Williamsons’ construction, their building was on line with the other buildings on the block, with a canopy protruding beyond this line.

The trial court found that:

“On June 11, 1974, Defendant Skrbina filed with the Defendant City of Long-mont an application for a building permit for an office building upon the property, at or about the same time demolishing the restaurant building and relocating the sewer line to the rear of the proposed building location. The application included a proposed site plan which did not conform to the setback requirements discussed above. The application covenants to build the structure according to the ‘ordinances’ of the City of Longmont.

“The evidence establishes that Defendants Williamson were unaware of the setback ordinance and that Defendant Skrbina, although aware of it, believed it in conflict with another unspecified zoning ordinance governing parking and indicated upon the site plan a setback of twenty feet from the right-of-way line along Main Street. The planning and building authorities of the City of Long-mont initially rejected the application but, after a meeting between Defendant Skrbina and the City Manager, the application was approved, and on June 12, 1974, the building permit issued. The testimony is in conflict as to whether the setback issue was specifically discussed but, in any event, the matter was not submitted to the Board of Adjustment for a variance and the permit permitted construction in violation of the setback ordinance. As characterized at page five of Plaintiffs’ Trial Brief the authorities of the City of Longmont made a mistake. Having secured a building permit, the Defendants commenced construction.”

The site plan consisted of a freehand drawing without showing any distance from the center of the street. The application for a permit which was filed with the so-called site plan was signed by Phil G. Skrbi-na and states:

“I hereby acknowledge that I have read this application, filled out in full the information required, completed an accurate plot plan, and state that all the information required is correct and agree to build this structure according to the ‘UNIFORM BUILDING CODE’ and the ‘ORDINANCES’ of the City of Long-mont, Colorado.”

On July 12, 1974, plaintiffs advised defendant Skrbina and the city that they believed that the construction violated the ordinances of the city. Subsequently, they sent written notice of the violation of the city’s setback ordinance to defendants Skrbina and Williamson. On July 12, 1974, approximately $15,000 of construction work would have been lost if the building had been moved.

The City refused the request of the plaintiffs that the construction work be stopped, and the Williamsons proceeded with the construction. Plaintiffs filed this action after completion of the building which at the time of trial had a value in excess of $150,-000 and leases running up to six years.

I

Plaintiffs contend that they are entitled to injunctive relief requiring removal of Williamson’s building insofar as it is in violation of the city’s setback ordinance. We agree.

Plaintiffs as owners of property within the City of Longmont have statutory standing to maintain this action under the Long-mont Zoning Code § 4-14-2, which provides that any owner of real estate within the city may institute appropriate action, including injunction, to remove an unlawful construction in violation of the zoning code. Under this ordinance, plaintiffs need not show special damages to maintain their action as is generally required of private suitors in this kind of case. See 4 R. Anderson, American Law of Zoning § 27.11 (2d ed. 1977). However, this ordinance does not by itself set forth the requirements which must be proved if plaintiffs are to prevail in their suit.

The trial court, in deciding against plaintiffs, determined that it was required to “weigh the circumstances so that it shall not act oppressively.” In light of this determination, the central issue before us is whether private parties, suing to enforce a municipal setback ordinance, may prevail only if they show that their damage is more than minimal in relation to the cost of compliance.

Generally, in Colorado cases involving injunctions to enforce municipal zoning ordinances, a determination of relative hardships has not been made. See Englewood v. Kingsley, 178 Colo. 338, 497 P.2d 1004 (1972); Denver v. Chuck Ruwart Chevrolet, Inc., 32 Colo.App. 191, 508 P.2d 789 (1973).

Although these cases have involved suits by public officials to enforce use restrictions and are thus not controlling here, we nevertheless conclude that the trial court erred in “weighing the circumstances” in this case. That is, we hold that a trial court may not weigh the hardships of a defendant in relation to those of a private plaintiff so as to deprive that plaintiff of an injunction to bring a building into compliance with a valid municipal setback ordinance.

This holding is consistent with that announced in Flinn v. Treadwell, 120 Colo. 117, 207 P.2d 967 (1949). There, the Flinns had been granted a building permit to construct a garage which extended beyond the front of the house which construction would have been contrary to the city ordinance. The permit stated the “front yard as is.” The building department stopped construction, and the Flinns filed a suit seeking an injunction and a declaratory decree authorizing them to proceed with their garage. At the time the building was stopped, the Flinns had expended approximately $900. In affirming a judgment adverse to plaintiffs, the court stated:

“No doubt plaintiffs’ complaint was largely engendered by the hardship apparent from the enforcement of the ordinance.”

Treating this argument of hardship as being an attempt to invoke the doctrine of estoppel, the court stated that: “Before [defendants] can invoke this doctrine, it must be shown that they were unmistakably misled, and that they exercised due diligence .... ” It then concluded that such conditions had not been met and that since the Flinns had not pursued the proper remedy of seeking a variance, they “proceeded at their peril.” We conclude the situation here is analogous to that in Flinn.

The finding of the trial court that defendants proceeded in good faith seems, at most, to be a conclusion by the court not supported by the evidence. The proposed site plan did not conform to the setback requirements. The trial court found that the owner was unaware of the setback ordinance, but that the contractor was aware of the ordinance but believed it was in conflict with another unspecified zoning ordinance. Defendants do not now contend that the supposed conflict with another specified zoning ordinance was legitimate. They did not seek a variance from the Board of Adjustment but proceeded to complete the construction of their building even though they were advised by the plaintiffs that they were in violation of the ordinance.

We are supported in our conclusion by the reasoning of the court in Little Joseph Realty, Inc. v. Town of Babylon, 41 N.Y.2d 738, 395 N.Y.S.2d 428, 363 N.E.2d 1163 (1977) which sharply distinguished the law of nuisance and the law of zoning on the basis that nuisance cases, which seek to resolve disputes between private parties, require a balancing of risk utility considerations while zoning cases, which seek the benefit and welfare of the entire community, do not require a judicial accommodation of plaintiff’s use to that of defendant.

As the Babylon court stated:

“This is not to say that risk-utility considerations have not entered into the adoption of a zoning law’s restriction on use. It is rather that presumptively they have already been weighed and disposed of by the Legislature which enacted them.”

See also 8A E. McQuillin, Municipal Corporations § 25.349 (3rd ed. 1976 rev. vol.) which states that:

Furthermore, it is no defense to [an action to enforce a zoning requirement] that defendant will suffer hardship from enforcement of the ordinance in the particular involved, particularly where the hardship is consequent upon the defendant’s violation of the zoning ordinance.”

Other jurisdictions have compelled the removal of a building erected in violation of a setback requirement without a determination of relative hardships. Boardman v. Davis, 231 Iowa 1227, 3 N.W.2d 608 (1942); Conrad v. Jackson, 107 So.2d 369 (Fla.1958); Davis v. City of Abilene, 250 S.W.2d 685 (Tex.Civ.App.1952).

The trial court cited Pull v. Barnes, 142 Colo. 272, 350 P.2d 828 (1960); Golden Press, Inc. v. Rylands, 124 Colo. 122, 235 P.2d 592 (1951); and Barker v. Mintz, 73 Colo. 262, 215 P. 534 (1923) as requiring application of the relative hardship doctrine. These cases are to be distinguished in that they do not involve a municipal zoning violation.

Further, even if the doctrine of relative hardship were to apply here, we are not inclined to reach the same result as the trial court. The Supreme Court in Golden Press said:

“Where defendant’s encroachment is unintentional and slight, plaintiff’s use not affected and his damage small and fairly compensable, while the cost of removal is so great as to cause grave hardship or otherwise make its removal unconscionable, mandatory injunction may properly be denied and plaintiff relegated to compensation in damages.”

In the case of a municipal zoning violation, damages are not fairly compensable for money damages will not terminate the violation. In addition, the damages are not merely those of these particular plaintiffs but of the public generally. As the court stated in Welton v. 40 East Oak Street Building Corp., 70 F.2d 377 (7th Cir. 1934), cert. denied, 293 U.S. 590, 55 S.Ct. 105, 79 L.Ed. 685:

“Financial relief to appellants is not the only factor in weighing equities. There is involved that immeasurable but nevertheless vital element of respect for, and compliance with the . .. ordinance of the city. The surest way to stop the erection of ... buildings in defiance of zoning ordinances is to remove all possibility of gain to those who build illegally. Prevention will never be accomplished by compromise after the building is erected, or through payment of a small money judgment to some individual whose financial loss is an inconsequential item.”

Turning to the question whether the Williamson building violates the city setback requirements, we conclude that it does. The applicable setback provision of the Longmont Zoning Code, § 4-7-6(A), provides:

“The setback for any yard adjacent to an official U.S. or State designated right of way shall be one hundred ten feet (110') from the center line of the right of way; except that where more than fifty per cent (50%) of the block is developed with buildings having less setback, the average front line of such buildings shall be the minimum setback requirement for all new construction in such developed block.”

The trial court found that with the exception of a gas station toward the south end of the block and defendant’s building, all of the buildings fronting upon Main Street are located approximately one hundred ten feet from the center line of that highway; and that the permit issued by the city “permitted construction in violation of the setback ordinance."

The trial court determined, in its order refusing defendant’s motion to dismiss plaintiff’s complaint, that when the ordinance is read as a whole, including all of the definitions involved, particularly that of the word “setback,” the clear meaning of the ordinance is that the setback requirement is 110 feet from the center line of the U.S. or State right-of-way to a building unless more than 50% of the block is developed with buildings having less setback. We agree with the trial court’s interpretation of the ordinance.

We conclude that plaintiffs are entitled to mandatory injunctive relief requiring the defendant landowner to bring the building into conformity with the city setback ordinance.

II

Having concluded that plaintiffs are entitled to mandatory injunctive relief against defendants, we need not address plaintiffs’ contention that the city is not estopped to revoke Williamson’s building permit. And, in any event, plaintiffs, who were in no way responsible for the issuance of the city building permit, are not estopped from requiring enforcement of the ordinance. Jelinski v. Eggers, 34 Wis.2d 85, 148 N.W.2d 750 (1967).

III

Plaintiffs and defendants both contend that the trial court erred in its findings concerning the drainage problems caused allegedly by the Williamson construction which raised the grade of his property. We disagree.

Based upon its finding that historically the water on this block flowed from northwest to southeast, and that the water now ponds on the property of plaintiffs Harrison and Hargreaves until it can travel through a newly created channel cut at the rear of defendant’s property, the trial court properly concluded that the property of Harrison and Hargreaves as the dominant estate had a right to have water drain from their property onto the property of Williamson, the servient estate, and that Harrison and Hargreaves were thus entitled to injunctive relief to restore adequate drainage from their property. Ambrosio v. Perl-Mack Construction Co., 143 Colo. 49, 351 P.2d 803 (1960); Galvaresi v. Brannan Sand & Gravel Co., 35 Colo.App. 271, 534 P.2d 652 (1975).

With respect to the property of the other plaintiffs, the trial court found that, given the historical drainage from northwest to southeast, the construction in the late 1960’s of the last Dualmatic building to the east of defendant’s property formed a dike with the Quality Liquor building to the south of defendant’s property. The trial court properly concluded that Williamson was entitled to eliminate the ponding of water on his property because of this blockage and that the blockage had not existed for the statutory period of eighteen years to entitle plaintiffs to block Williamson’s drainage. Hankins v. Borland, 163 Colo. 575, 431 P.2d 1007 (1967); Ambrosio, supra; Calvaresi, supra.

Since there is evidence in the record to support the findings of the trial court they will not be disturbed on appeal. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453 (1970).

IV

Plaintiffs contend that the trial court erred in failing to award them attorneys’ fees. We disagree.

Plaintiffs recognize that attorneys’ fees are not ordinarily recoverable absent a specific contractual or statutory ground. See Beebe v. Pierce, 185 Colo. 34, 521 P.2d 1263 (1974). They contend, however, that they are entitled to attorneys’ fees under § 13-17-101(3), C.R.S. 1973 (1980 Cum. Supp.) because the refusal of the city to revoke Williamson’s building permit was frivolous and groundless. This statute which applies to proceedings commenced on or after July 1, 1977, see Colo.Sess.Laws 1977, ch. 189 at 798, does not apply to this case since plaintiffs filed their complaint in August 1974.

Plaintiffs also contend that this case falls within two of the exceptions to the general rule of nonrecovery. First, they assert that they are acting as “private attorney generals” to vindicate a strong public policy in the enforcement of zoning ordinances and thus are entitled to attorneys’ fees. See Denver Association for Retarded Children, Inc. v. School District No. 1, 188 Colo. 310, 535 P.2d 200 (1975). However, since no specific legislative authorization for attorneys’ fees appears in the Longmont ordinance granting plaintiffs standing to bring this suit, an award of attorneys’ fees would be improper. See Silverstein v. Sisters of Charity of Leavenworth Health Services Corp., 38 Colo.App. 286, 559 P.2d 716 (1976).

Second, plaintiffs contend that they were forced to litigate with third parties because of the negligence of the City of Longmont in issuing the building permit. However, this exception to the general rule does not apply here where plaintiffs have not been embroiled in separate litigation because of the City’s actions. See Lovell Clay Products v. Statewide Supply Co., 41 Colo.App. 166, 580 P.2d 1278 (1978).

We conclude that the trial court did not err in refusing to award plaintiffs attorneys’ fees.

V

Defendants contend on cross-appeal that the trial court erred in awarding plaintiffs Harrison and Hargreaves $1,000 damages for injury to their fence. We disagree.

Plaintiff Hargreaves testified as to the cause of the damage and as to the cost of repair. Defendants disputed both the question of causality and damages. There is evidence in the record to support the trial court and its findings will not be disturbed on appeal. Linley v. Hanson, supra.

The judgment is reversed and the cause is remanded to the trial court for an order consistent with this opinion on the issue of plaintiffs’ right to mandatory injunctive relief, and for such further proceedings as are necessary to resolve the issues raised by the cross-claims of defendants Williamson and Skrbina against the City of Longmont for damages proximately caused by the City’s issuance of the building permit. The judgment is affirmed on all other issues.

BERMAN, J., specially concurs. STERNBERG, J., dissents.