Salt Lake County v. Kartchner , 1976 Utah LEXIS 891 ( 1976 )

HENRIOD, Chief Justice

(dissenting):

I dissent.

Taking the main opinion at face value and accepting the facts stated therein, ■— and the law, — and the equity, — and the justice, — and etc.,- — all that remains is an intentional flouting of the zoning ordinance by appellant without inquiry of any kind as to condition precedent, with an attendant attempt to justify it by claiming that city agents, who had no duty to do so in the first place, did not discourage one bent on establishing an unauthorized zoning variance, in time and manner not to the liking of the appellant.

No maxims of equity are necessary in this case except, perhaps, that equity frowns on a violator’s plaint that others derelict failed to prevent his deviation from the ordinance, — thus justifying and condoning his violation.

The main opinion simply justifies such a violation of law because others have done so.

The mandate of the main opinion, as amended, says “We reverse the order requiring the destruction of the improvement ¹; and affirm the order requiring a building permit, payment of the permit fee and penalty.” It is obvious that the main opinion condones a violation of the law when it concedes that the penalty must be recognized and imposed.

The mandate of the main opinion, as amended, is an obvious distortion of the trial court’s words and judgment, which were not as represented in the opinion; when the trial court adjudged that defendant

. . shall remove a minimum of 6.5 feet of the west portion of his carport .... [and] shall apply for a building permit and shall pay the required permit fees for any portion of his carport addition which may remain after compliance with paragraph 1 of this order.²

The diversionary mandate of the main opinion seems obvious in decreeing an unlawful act to be a lawful one simply because others had violated the law and municipal agents adequately had not given some kind of notice that they need not have had to give in the first instance.

The trial court should be affirmed.

CROCKETT, J., concurs in the views expressed in the dissenting opinion of HENRIOD, C. J.

1 . Which so-called “improvement” is not an improvement at all, since it represents an illegitimate invasion of the rights of neighbors and governmental agents to rely upon and have enforced the zoning restrictions duly legislated by proper authority.

2 . Obviously meaning a building permit and payment of fees for a lawful construction of a carport, — not an unlawful non-compliance with the ordinance.