## Facts

- Gary Carpenter owned a commercial building used for a plumbing business on Route 4 in the Town of Sherburne.
- The zoning ordinance required a 100-foot setback, but Carpenter’s preexisting building was a lawful nonconforming structure located about 55 feet from the road.
- The building had a front porch extending closer to Route 4; its depth was disputed (about eight to ten feet).
- In 1986, Carpenter obtained a zoning permit to enclose the existing porch, expressly conditioned on “without changing the amount of set-back from Route 4.”
- The submitted plan depicted an eight-foot porch, and the Town issued the permit based on that representation.
- Carpenter removed the porch and built a new enclosed structure; during construction, the zoning administrator concluded it was ten feet deep, bringing the structure closer to Route 4 than permitted.
- The zoning administrator notified Carpenter that the enclosure violated the ordinance and warned that the Town would sue unless the size was reduced.
- Carpenter completed construction without modification.
- The Town sued seeking an injunction requiring removal of the portion beyond the permitted line and civil penalties of up to $50 per day under 24 V.S.A. § 4444(a).
- The trial court found a zoning violation, denied injunctive relief without stating reasons, and capped the fines; the Town appealed.

## Issues

1. Whether the trial court abused its discretion by denying an injunction to remove the portion of the structure that violated the setback requirement after finding a zoning violation.
2. Whether the trial court erred by capping civil penalties under 24 V.S.A. § 4444(a) without a reasoned basis consistent with the statutory per-day penalty scheme.

## Decision

- The Vermont Supreme Court reversed the denial of injunctive relief and held the trial court abused its discretion.
- The Court ruled that, absent articulated and compelling equitable reasons, proven zoning violations ordinarily warrant injunctive relief to enforce the ordinance and permit terms.
- The Court reversed the fine cap and remanded for reassessment of penalties consistent with 24 V.S.A. § 4444(a).
- The case was remanded for entry of an injunction requiring removal of the nonconforming portion and for recalculation of an appropriate civil penalty.

## Legal Principles

- Municipal zoning enforcement actions serve public interests; a court’s equitable discretion over remedies must be exercised consistently with the legislative policy of enforcing zoning laws.
- A court may not effectively condone or nullify a zoning ordinance by refusing injunctive relief after a violation is established without stating adequate equitable grounds.
- Lawful nonconforming structures may continue, but unauthorized expansion of a nonconformity (including further encroachment into a setback) may be enjoined.
- A permit’s written conditions control; informal assurances by municipal officials do not excuse construction that conflicts with the permit or ordinance.
- Under 24 V.S.A. § 4444(a), civil penalties may be assessed on a per-day basis while a violation continues; any limitation of penalties must be reasoned and tied to the statutory framework.

## Conclusion

The Vermont Supreme Court held that the trial court improperly denied an injunction and arbitrarily capped statutory per-day fines after finding a setback violation, and it remanded for removal of the unlawful encroachment and reassessment of penalties under 24 V.S.A. § 4444(a).


Town of Sherburne v. Carpenter, 155 Vt. 126, 582 A.2d 145 (1990)