Eva Johnson v. Hermes Associates

2005 UT 82
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Eva C. Johnson, an individual; 	No. 20040729
Diane Pearl Meibos, an individual;
Alayna J. Culbertson, an individual;
and Blaine Johnson, an individual,
Plaintiffs and Appellees,
v.
Hermes Associates, Ltd., a Utah
limited partnership; Nick S.
Vidalakis, an individual; Fort
Union Associates, L.C., a Utah
limited liability company, and 	F I L E D
Does I-X,
Defendants and Appellants. 	November 22, 2005
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Third District, Salt Lake
The Honorable Tyrone E. Medley
No. 960907123
Attorneys: 	Ronald G. Russell, Jeffrey J. Hunt, David C.
Reymann, Salt Lake City, for plaintiffs
Mark O. Morris, David P. Williams, Salt Lake City,
for defendants
---
WILKINS, Associate Chief Justice:
¶1 	Appellants seek review of the district court’s holdings
in this real property dispute, alleging that the district court
erred when it (1) granted Plaintiffs’ motion for partial summary
judgment; (2) awarded mandatory injunctive relief, which imposed
specific metes and bounds requirements on Hermes; and
(3) declined to balance the equities in granting the motion for
partial summary judgment. 	We affirm the district court on all
three of its holdings.

1 Only after first obtaining approval from many government
agencies, including the Fire Division, Board of Health, the
Building Inspection System, the Union Community Council, the
Urban Hydrology Division, the Water and Sanitation Department,
the Development of Services Division, the traffic engineer, and
the Utah Department of Transportation.
No. 20040729 	2
BACKGROUND
I. RELEVANT FACTS
¶2 	When reviewing a rule 56(c) motion for summary
judgment, we recite the facts in the light most favorable to the
non-moving party. 	See Woodbury Amsource, Inc. v. Salt Lake
County, 2003 UT 28, ¶ 4, 73 P.3d 362. 	Thus, in reviewing these
facts, we present them in a light most favorable to Appellant
Hermes, the commercial developer in this case.
¶3 	In 1991, Hermes sought to develop property adjoining
its existing shopping center known as the Family Center at Fort
Union (Family Center). 	At the time, the adjoining property was
located in a portion of unincorporated Salt Lake County, which
has since been annexed into Midvale City. 	Because Hermes did not
own all of the adjacent land it desired to use for the Family
Center extension, Hermes approached the landowners with offers to
purchase their property. 	All landowners, other than members of
the Croxford and Johnson family (Appellees), whose land has been
in the family line for over 100 years (the Croxford Property),
sold their properties to Hermes. 	Unable to purchase the Croxford
Property, Hermes revised and followed a modified development plan
which eliminated building on the Croxford Property but included
construction on three sides of it.
¶4 	Because Salt Lake County ordinances prohibited Hermes’s
intended use of the purchased land, Hermes requested that the
County change local zoning requirements and, in the interim,
approve a conditional use permit which would allow Hermes to
construct the expanded shopping center. 	The County approved a
change to the zoning ordinance and granted Hermes a conditional
use permit, 1 subject to three specific conditions: (1) the Hermes
plan must widen 7240 South, a public right-of-way running
directly south of Hermes’s development site and west of the
Croxford Property, by an additional 17 feet, making the public
right-of-way 50 feet in width; (2) Hermes must dedicate 8.5 feet
of the widening to install curb, gutter, and sidewalk on 7240
South; and (3) the County must vacate the portion of North Union
Avenue running north of the Croxford Property. 	Hermes and the

3 	No. 20040729
County agreed to satisfy the conditions, and Hermes also conveyed
an access easement to the west of the Croxford Property.
¶5 	The County subsequently passed Ordinance 1275 in August
1994, which vacated and permanently closed the public portion of
North Union Avenue north of the Croxford Property. 	Specifically,
the ordinance denied North Union Avenue “public street” status
and vacated an eight-foot-wide section of the street’s north side
while permanently closing the remaining portion. 	Finally,
Ordinance 1275 provided that Hermes convey to the County a
twenty-five-foot right-of-way running along the western boundary
of the Croxford Property.
¶6 	Thereafter, Hermes’s contractors started blocking off
and tearing out portions of North Union Avenue and commenced
construction of a commercial structure known as Retail 3,
currently occupied by retail tenants. 	Before Hermes started
construction, Appellees, through counsel, notified both Hermes
and the County that Retail 3 encroached upon 1070 East Street,
the road running from north to south along the Croxford
Property’s western boundary, and restricted not only private
access to their property but also the access of public services
such as sanitation, fire, and snow removal. 	Since the
commencement of construction, Appellees have also notified Hermes
that the light from large overhanging floodlights and the noise
from the loading dock and trash compacting facilities at the
Family Center disturb the peaceful use and enjoyment of their
property.
II. PROCEDURAL HISTORY
¶7 	Alleging that the proposed 25-foot-wide public right-
of-way violated the County’s roadway ordinances, Appellees
challenged both the substantive and procedural adoption of
Ordinance 1275, seeking to have the County enforce the conditions
of Hermes’s conditional use permit. 	Appellees also sought a
temporary restraining order to halt the violations, but the
complaint was dismissed without prejudice by the district court,
and the Appellees were instructed to exhaust administrative
remedies. 	Accordingly, Appellees raised their concerns with the
County, requesting that the County enforce the applicable
ordinances, building codes, and conditional use permit
provisions. 	Hermes requested that the County grant exceptions to
the roadway standards to the extent they were applicable to the
streets at issue in this case. 	The County granted the request.
¶8 	In 1995 and 1996, Appellees instituted this action
against Hermes and re-filed their action against the County,

2 We recognize that our 2001 opinion referred to two lower
court rulings as Culbertson I and Culbertson II. 	However, in
this particular appeal, we refer to Culbertson I as our first
opinion on this case, which we issued in 2001.
3 Salt Lake County Ordinances, Chapter 14.12.150 permits the
county commission to grant roadway standard exceptions where
“unusual topographical, aesthetic or other exceptional conditions
or circumstances exist . . . after receiving recommendations from
the planning commission and the public works engineer, provided
that the variations or exceptions are not detrimental to the
public safety or welfare.” 	Culbertson I, 2001 UT 108, ¶ 48.
This court noted that while the County received the required
recommendations,
nothing suggests any “unusual topographical,
aesthetic or other exceptional conditions or
circumstances,” other than the conditions or
circumstances the County created when it
improperly attempted to transform North Union
Avenue from a public street to a “closed
street” and when it erroneously took the
position that 1070 East was a private way.
Id. at ¶ 48.
No. 20040729 	4
claiming that Hermes had violated county ordinances, roadway
standards, and the conditional use permit issued by the County.
Although the district court found that Appellees’ claims were not
barred by res judicata or collateral estoppel, it granted
Hermes’s cross-motion for summary judgment, concluding that the
two streets were not public streets, and therefore, Hermes’s
actions were in accordance with both the conditional use permit
and county requirements.
¶9 	Appellees sought our review, and in Culbertson v. Board
of County Commissioners, 2001 UT 108, 44 P.3d 642 [hereafter
Culbertson I], 2 we reversed the district court’s grant of summary
judgment by concluding that the streets at issue were public and
must comply with the terms of the conditional use permit and
other county zoning and roadway ordinances. 	We also held that
the County erroneously granted the roadway exceptions because the
County failed to follow its own rule for granting exceptions. 3
¶10 	In Culbertson I, we explained that Appellees would be
entitled to injunctive relief if they could prove special damages
peculiar to themselves and “‘over and above the public injury
which may be caused by the violation of the zoning ordinance.’”
Culbertson I, 2001 UT 108, ¶ 54 (quoting Padjen v. Shipley, 553
P.2d 938, 939 (Utah 1976)). Ultimately, we determined that

5 	No. 20040729
despite Hermes’s completed construction of the building
extensions (Retail 2 and Retail 3), with a willful and
intentional ordinance violation, proper relief to Plaintiffs may
require restoration of the road. 	We remanded the case with
specific instructions for the district court to make “finding[s]
on summary judgment regarding the extent of plaintiffs’
injuries.” 	Id. ¶ 55. 	The district court granted Appellees
motion for partial summary judgment, finding that special damages
and irreparable harm were established without any dispute as to
material facts. 	Id.
¶11 	Hermes now brings this appeal from the district court’s
decision on remand, arguing that (1) the district court erred in
granting Appellees’ motion for summary judgment; (2) the specific
metes and bounds set forth by the district court’s order are
contrary to the ordinances in effect at the time, and illogical;
and (3) the district court abused its discretion by failing to
balance the equities.
ANALYSIS
I. THE DISTRICT COURT’S GRANT OF SUMMARY JUDGMENT WAS CORRECT
¶12 	We begin by reviewing the district court’s grant of
partial summary judgment in favor of Appellees. 	Hermes requests
a reversal, claiming to have raised disputed issues of material
fact regarding Appellees’ special damages and irreparable harm,
which render partial summary judgment improper. 	Summary judgment
is proper only when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” 	Utah R. Civ. P. 56(c). 	We review the
district court’s summary judgment ruling for correctness,
granting no deference to its legal conclusions, and consider
whether it correctly concluded that no genuine issue of material
fact existed. 	See Lovendahl v. Jordan Sch. Dist., 2002 UT 130,
¶ 13, 63 P.3d 705; Woodbury Amsource, Inc. v. Salt Lake County,
2003 UT 28, ¶ 4, 73 P.3d 362; Utah R. Civ. P. 56(c).
Furthermore, as previously noted, “we view the facts and all
reasonable inferences drawn therefrom in the light most favorable
to the non-moving party,” in this case, Hermes. 	Arnold Indus.,
Inc., 2002 UT 133, ¶ 11, 63 P.3d 721.
¶13 	A court may grant a permanent injunction if it
determines that (1) the petitioner establishes standing by
demonstrating special damages, (2) the petitioner has a property

4 First, “courts are usually disposed to search out and
discover at least some nominal property right upon which to base
the granting of injunctive relief.” 	42 Am. Jur. 2d Injunctions
§ 49 (2004); see also Id. § 33. 	Nevertheless, property rights
are seldom defined in a narrow or technical sense because courts
generally include “any right of a pecuniary or civil nature”
under the umbrella of property right. 	Id. § 49. 	In this
particular case, neither Appellant nor Appellees contest the fact
that Appellees have a vested interest in the quiet enjoyment and
use of their property under both the traditional and modern
definitions.
No. 20040729 	6
right or protectable interest, 4 (3) legal remedies are
inadequate, (4) irreparable harm would result, (5) court
enforcement is feasible, and (6) petitioner merits the injunction
after balancing the equities. 	See 1 Am. Jur. 2d Adjoining
Landowners § 133 (2004); 42 Am. Jur. 2d Injunctions § 33 (2004);
Kenneth T. Young, Anderson’s American Law of Zoning § 29.11 (4th
ed. 1997); 13 Moore’s Federal Practice § 65 (3d ed. 2005).
Special damages and irreparable harm are the only issues before
us. 	The other factors are either presumed satisfied, or, as to
balancing the equities, unnecessary in this case. 	Hermes
purports to have presented material facts bringing Appellees’
special damages and irreparable harm into dispute, making summary
judgment and mandatory injunctive relief inappropriate. 	We
affirm the district court’s findings of both special damages and
irreparable harm.
A. Special Damages
¶14 	Hermes claims to have presented sufficient evidence to
dispute Appellees’ allegation of special damages, which would
make summary judgment inappropriate. 	Moreover, if proven, the
absence of special damages defeats Appellees’ standing to bring
this case. 	Accordingly, Hermes argues that the trial court
should have recognized that there were material factual disputes
regarding special damages, which should have led to a trial on
the merits concerning the effect of Hermes’s development on
Appellees’ property and on Appellees themselves. 	We have long
recognized that a “private individual must both allege and prove
special damages peculiar to himself in order to entitle him to
maintain an action to enjoin violation of a zoning ordinance.”
Culbertson I, 2001 UT 108, ¶ 54; see also Young, supra, § 29.11.
In other words, parties have standing to bring claims for
injunctive relief only once they have alleged and proven special
damages.

5 Our holding in Harris v. Springville City, 712 P.2d 188,
191 (Utah 1984), indicates that special damages need not be
different than the general public but, at a minimum, more
substantial than those suffered by the general public.
7 	No. 20040729
¶15 	We have defined special damages in the context of
zoning violations as damage “over and above the public injury
which may be caused by the violation of the zoning ordinance.”
Culbertson I, 2001 UT 108, ¶ 54. 	The damages need only differ
in kind or be substantially more than those of the general
community. 	See Young, supra, § 29.11 n.45. 	As the only
landowners surrounded on three sides by Hermes’s expansion,
Appellees have obviously suffered a different and more
substantial impact than any other landowners near the Family
Center. 	The record unequivocally reflects the fact that
Appellees are the only homeowners whose residential property is
within feet of the Shopping Center and who have been affected, in
kind, by Hermes’s substandard roadway construction and non-
compliance with applicable zoning ordinances. 	A review of the
photographs and blueprint of the revised development plan, both
of which are contained in the record, show the Croxford Property
before and after the construction of the Shopping Center and
leave no doubt that Appellees’ injuries, resulting from the
zoning violation, have been unique, profound, and dramatic. 	For
instance, it is undisputed that Hermes failed to install, as
ordered by the County, a highback curb, gutter, sidewalk, or
landscaping on North Union Avenue. 	Because Appellees, whose
property is the only residential lot abutting the disputed
roadway on North Union Avenue, would have benefitted from
Hermes’s compliance with the county roadway ordinances, Appellees
are thus damaged by Hermes’s ultimate noncompliance. 	The above
mentioned facts, alone, show that Appellees suffered injury
dissimilar from that suffered by the public generally. 5 	Thus,
Appellees’ damages easily rise “over and above the public injury
which may be caused by the violation of the zoning ordinance.”
Young, supra, nn.44-45.
¶16 	Hermes contends, however, that disputed facts about the
number of access roads and the availability of county services
should have been material to the district court’s special damages
analysis. 	We disagree. 	Appellees have met the necessary burden
to establish special damages on the basis of facts not contested
by Hermes.
B. Irreparable Harm
¶17 	Hermes also contends that Appellees never presented
facts, undisputed or otherwise, of irreparable injuries and that

6 For instance, Appellees argue that Harris v. Springville
City, 712 P.2d 188 (Utah 1984), equates a showing of special
damages and a zoning violation to irreparable harm. 	This is an
incorrect interpretation of Harris, which merely held that
special damages permitted a party to bring a case for injunctive
relief under circumstances of zoning violations. 	Id. 	The only
issue before us in that case was standing.
No. 20040729 	8
absent such a showing, summary judgment was improper in this
case. 	An injury must be irreparable to warrant injunctive
relief. 	See 13 Moore’s Federal Practice § 65.06[2] (3d ed.
2005).
¶18 	“Irreparable harm,” a term often interchanged with
“irreparable injury,” is defined as “a harm that a court would be
unable to remedy even if the movant would prevail in the final
adjudication.” 	Moore, supra, § 65.06[2]. 	We have also explained
that irreparable injury consists of “wrongs of a repeated and
continuing character, or which occasion damages that are
estimated only by conjecture, and not by any accurate standard.”
Carrier v. Linquist, 2001 UT 105, ¶ 26, 37 P.3d 1112 (internal
quotation marks omitted). 	A party proves irreparable injury when
establishing that “he or she is unlikely to be made whole by an
award of monetary damages or some other legal, as opposed to
equitable, remedy . . . . Thus, an injury is irreparable if the
damages are estimable only by conjecture and not by any accurate
standard.” 	42 Am. Jur. 2d Injunctions § 33 (2004); see also
Carrier, 2001 UT 105, ¶ 26. 	Nevertheless, we have held that in
some cases the court need not make an explicit finding of
irreparable harm. 	See Culbertson I, 2001 UT 108, ¶ 54; Utah
County v. Baxter, 635 P.2d 61, 64-65 (Utah 1981); 42 Am. Jur. 2d
Injunctions § 33 (2004). 	For instance, a county may obtain an
injunction against a party in violation of a zoning ordinance
because “a violation of a zoning ordinance is also a crime, a
showing that the zoning ordinance has been violated is tantamount
to irreparable injury . . . to the public.” 	Culbertson I, 2001
UT 108, ¶ 54 (internal quotation marks omitted) (citing Baxter,
635 P.2d at 64).
¶19 	Appellees assert that our prior zoning violation cases
establish that irreparable harm in the injunctive relief context
may be based merely on a showing of (1) a zoning violation and
(2) special damages. 6 	We disagree. 	For individuals, proof of
irreparable harm is necessary to obtain injunctive relief. 	In
Culbertson I, we explicitly limited per se irreparable harm
through zoning violations to those cases where counties seek the
injunction, determining that when private individuals bring the
suit, a zoning violation is only a “significant factor” in

7 Because Utah case law does not distinguish between general
injunctive relief and injunctive relief for zoning violations, we
review irreparable harm in the context of adequate legal
remedies. 	Generally, the lack of adequate remedies at law may be
demonstrated by showing that (1) “alternative legal remedies,
while available in theory, are immeasurable or merely
speculative,” 13 Moore’s Federal Practice, § 65.06[1] (3d ed.
2005); (2) obtaining legal redress would require the commencement
of multiple suits; or (3) “an awarding of damages by an
alternative remedy may be insufficiently compensatory in light of
the harm caused by defendant’s conduct.” 	Id.
8 For instance, inadequate legal remedies exist when “[a
party] is unlikely to be made whole by an award of monetary
damages or some other legal, as opposed to equitable, remedy
. . . . Thus, an injury is irreparable if the damages are
estimable only by conjecture and not by any accurate standard.”
42 Am. Jur. 2d Injunctions § 33 (2004).
9 	No. 20040729
finding irreparable harm. 	Id. ¶ 55 n.23. 	In other words, once a
claim raised by a private individual proves a zoning violation,
other, perhaps even lesser factors, may be enough to constitute
the small remainder of the whole of irreparable harm.
¶20 	In the context of zoning violations, special damages
and the violation itself do not equate to irreparable harm.
Special damages show that a party has suffered peculiar damage,
over and above that of the general community, which does not
necessarily imply that the party was irreparably injured or that
the violation makes the injury irreparable. 	Furthermore,
irreparable harm and inadequate legal remedies are not
synonymous. 7 	Each is a separate and distinct, equally essential,
showing necessary for permanent injunctive relief. 	See 13
Moore’s Federal Practice § 65.06 [1]-[2] (3d ed. 2004). 	On
appeal, Appellants raised irreparable harm and not the adequacy
of legal remedies as the disputed factor. 	Thus, we specifically
address irreparable harm but recognize that in some instances, it
may be proper to address irreparable harm in light of the
adequacy of legal remedies. 8
¶21 	Even so, the issue before us is whether the specific
alleged injuries, resulting in inconveniences to Appellees, are
legitimately disputed and material to the finding of irreparable
harm. 	We review the allegedly disputed facts in light of Utah
Rule of Civil Procedure 56(e), which explains:
[W]hen a motion for summary judgment is made
and supported as provided in this rule, an

No. 20040729 	10
adverse party may not rest upon the mere
allegations or denials of his pleadings, but
his response, by affidavits or as otherwise
provided in this rule, must set forth
specific facts showing that there is genuine
issue for trial. 	Summary judgment, if
appropriate, shall be entered against a party
failing to file such a response.
Utah R. Civ. P. 56(e). 	Moreover, a party puts the legitimacy of
a fact, supported by affidavits, depositions, or other sworn
testimony, in dispute by presenting equally meaningful, sworn
testimony in the form of affidavits, depositions, or
interrogatories. 	Id. 	A generic denial is inadequate. 	Thus, we
conclude that the following facts, contrary to Hermes’s
assertions, are not disputed because Hermes failed to contest
them with specific sworn evidence as required under rule 56(e).
See Carrier, 2001 UT 105, ¶ 26 n.6.
¶22 	First, Appellees present by sworn evidence that at
night, large overhanging floodlights located on the Family Center
parking lots shine light inside the residences on the Croxford
Property which prevents Appellees from sleeping. 	Hermes, in
opposition, contends that additional discovery is needed to
determine the extent of the disturbance and its impact on
Appellees. 	This is inadequate as a defense to Appellees’ factual
assertion that floodlights disturb Appellees and prevent them
from sleeping at night because Hermes failed to specifically
address the factual statement from Appellees’ affidavits. 	A
request for additional discovery is not, under Utah Rule of Civil
Procedure 56(c), a proper counter to factual assertions.
Moreover, the proper means of requesting additional discovery
would have been to file a motion for additional discovery rather
than to use the request as a challenge to summary judgment.
¶23 	Similarly, Appellees present sworn affidavit evidence
that the loading dock and trash compacting facilities located at
the Shopping Center are frequently used between 10:00 p.m. and
7:00 a.m., resulting in disruptions to Appellees’ peaceful use
and enjoyment of their property. 	Again, Hermes argues this fact
is in dispute because neither the current level of noise nor the
alleged resulting injuries have been adequately explored.
However, Hermes’s generic response to Appellees’ claim fails to
qualify as valid contesting evidence under rule 56(c) for the
same reasons discussed above.
¶24 	Third, Appellees present sworn affidavit evidence that
vehicles traveling to the end of North Union Avenue in front of

9 Appellees assert that the sole means of access to their
Property is by way of 1070 East and North Union Avenue. 	Hermes
counters with the assertion that Appellees also have access to
their property through 7240 South. 	Because both arguments are
supported by affidavits or depositions, the number of access
roads to the Croxford Property is in dispute. 	We conclude,
however, that it is immaterial in light of the other weighty
factors demonstrating irreparable harm.
11 	No. 20040729
Plaintiffs’ property must either back up or use their property
and their driveways to turn around because the roadway dead-ends
and does not have a cul-de-sac. 	Hermes, again, contests this
fact with inadequate record evidence, claiming merely, based on
deposition testimony from County Planner Ken Jones, who worked
with Hermes on the development project, that the “access provided
to the Croxford Property was reasonable.” 	Absent a direct
counter to the claim of no cul-de-sac and no means of backing-up
cars, the district court may consider, as noted in Carrier, those
facts as undisputed. 	See Carrier, 2001 UT 105, ¶ 26 n.6.
¶25 	Fourth, Appellees present sworn evidence that hook-and-
ladder fire trucks and large sanitation trucks cannot access
their property. 	Again, Hermes counters only with testimony that
the fire department and sanitation services had “reasonable
access.” 	Hermes fails to expressly deny the claim that
Appellees’ property is inaccessible to hook-and-ladder fire and
large sanitation trucks. 	Hermes’s challenge to the lack of these
services is insufficient. 	Furthermore, Hermes’s challenge fails
based as it is only on deposition testimony from the County
Planner Ken Jones. 	His comments on these matters are hearsay
because he is simply repeating out-of-court statements made to
him and used by Hermes in an attempt to prove the truth of the
matters asserted. 	See Utah R. Evid. 801. 	The record is devoid
of authoritative first-hand statements from responsible persons
in the fire and sanitation departments. 	See Utah R. Evid. 801-
02. 	Thus, for purposes of the motion for summary judgment, it
was undisputed that both hook-and-ladder fire trucks and large
sanitation trucks are unable to access the Croxford Property.
This evidence is material to Appellees’ proof of irreparable harm
because the zoning ordinances are, invariably, written to ensure
citizens access to government services, including larger service
vehicles intended to pass easily through roads of the size
required by zoning ordinances.
¶26 	The only validly disputed fact is the number of access
roads to the Croxford Property. 9 	However, after reviewing the
undisputed material facts, we conclude the number of access roads
is immaterial to the proof of irreparable harm suffered by

10 The district court’s order, signed May 14, 2004, required
Hermes to (1) remove, at its own expense, the portions of
buildings that were unlawfully constructed adjacent to the
Croxford Property in violation of the conditional use permit; (2)
reconfigure the roadways and rights-of-ways abutting the Croxford
Property to meet feature requirements (landscape, gutter,
sidewalks); (3) reconfigure and reconstruct, at its own expense,
portions of 1070 East Street and North Union Avenue abutting the
Croxford Property; (4) submit a detailed written plan to the
court within thirty days of the order, and (5) proceed as
expeditiously as possible with respect to applying for and
receiving all necessary permits and approvals from Midvale City
and any other government authorities.
No. 20040729 	12
Appellees. 	The other factors clearly outweigh this one, even if
successfully disputed by Hermes, and tip the scale in Appellees’
favor.
¶27 	The district court correctly found that the undisputed
facts relating to diminished availability of services and the
disturbing light and noise in this case, when added to the
already-determined “signficant factor” of a zoning violation,
establish irreparable harm sufficient for purposes of granting a
permanent injunction. 	Accordingly, we affirm the district
court’s finding of irreparable harm. 	Because we affirm the
district court’s finding of both special damages and irreparable
harm, we affirm its grant of partial summary judgment.
II. THE SPECIFIC FEATURES OF THE DISTRICT COURT’S INJUNCTION
¶28 	We next review the specific features of the district
court’s injunction. 10 	Hermes contends that the district court,
in awarding mandatory injunctive relief to Appellees, imposed
specific metes and bounds contrary to the ordinances in effect at
the time of the zoning violation, and that are also contrary to
logic and reason. 	When considering the district court’s choice
of remedy, we review the court’s actions under an abuse of
discretion standard. 	See Thurston v. Box Elder County, 892 P.2d
1034, 1041 (Utah 1995). 	We hold that the district court did not
abuse its discretion in imposing specific metes and bounds on
Hermes because, as preliminarily addressed in Culbertson I, we
explicitly provided the district court with the “latitude in
fashioning an appropriate remedy.” 	2001 UT 108, ¶ 57, 44 P.3d
642. 	The district court’s order to restore the property falls
within the scope of this authority.

11 A more detailed analysis of the conditional use permit
and county and roadway ordinances is found in Culbertson I, 2001
UT 108, ¶¶ 35-49.
13 	No. 20040729
¶29 	We explained in Culbertson I that an “appropriate
remedy” takes into account the unequivocal and uncontested fact,
based on the record, that Hermes acted “wilfully and deliberately
when it constructed its building after plaintiffs put both Hermes
and the County on notice that the proposed construction would
violate county ordinances.” 	Id. ¶ 56 (emphasis added). 	We
relied, in part, on our reasoning in Papanikolas Brothers
Enterprises v. Sugarhouse Shopping Center Associates, where we
held that “where encroachment is deliberate and constitutes a
willful and intentional taking of another’s land, equity may
require its restoration.” 	535 P.2d 1256, 1259 (Utah 1975).
Moreover, our Culbertson I opinion held that Hermes clearly
violated the County zoning ordinance. 	2001 UT 108, ¶ 56.
Although Hermes fiercely denies a willful and intentional
violation and reiterated in oral arguments that it only acted in
good faith, our previous determinations have reached the opposite
conclusion. 	We stated in Culbertson I that “[b]ecause the
segment of North Union Avenue [that] bordered the Croxford
Property [was] a public street, the County must comply with the
[conditional use permit] and all other county zoning and roadway
ordinances” and that to be in noncompliance would be a violation
of the conditional use permit and zoning and roadway ordinances.
Culbertson I, 2001 UT 108, ¶ 43. 	We then held that the
exceptions to the roadway standards were erroneously granted,
which, consequently, placed Hermes in noncompliance and resulted
in an ordinance violation. 11 	Id. ¶ 49.
¶30 	The district court clearly acted within its permitted
discretion in determining that due to Hermes’s willful and
intentional violation of the zoning ordinance, a complete
restoration of the property to its pre-encroachment status is
appropriate. 	Because complete restoration requires removing
portions of Hermes’s constructed buildings, the district court
did not act outside its discretion by ordering Hermes, at its
expense, to remove portions of the buildings that it unlawfully
constructed and to reconfigure the roadways and rights-of-way
abutting Appellees’ property, nor by requiring similar
restoration of 1070 East Street and North Union Avenue. 	The
court also fittingly ordered the submission of both plans within
thirty days of the judgment. 	For the above reasons, the specific
metes and bounds, which constitute the restoration as set forth
in the court’s order, are within the district court’s “latitude

No. 20040729 	14
in fashioning an appropriate remedy.” 	Culbertson I, 2001 UT 108,
¶ 57.
III. THE DISTRICT COURT DID NOT EXCEED ITS DISCRETION IN
DECLINING TO APPLY THE “BALANCE OF HARDSHIPS” DOCTRINE
¶31 	Finally, Hermes argues that the district court should
have balanced the equities, which requires a balancing of the
opposing parties’ interests. 	Under this test, Hermes argues that
its interest in retaining the already constructed Family Center
extensions far exceeds the Appellees’ interests in restoring the
Croxford Property. 	We review the district court’s refusal to
apply a balance of equities test for abuse of discretion. 	See
Carrier v. Lindquist, 2001 UT 105, ¶ 29, 37 P.3d 1112 (citing
Papanikolas Bros. Enters. v. Sugarhouse Shopping Ctr. Assocs.,
535 P.2d 1256, 1259 (Utah 1975)).
¶32 	While common law generally requires a balancing of the
parties’ equitable interests before awarding permanent injunctive
relief, an exception is made when a defendant’s encroachment is
willful and intentional. 	See 1 Am. Jur. 2d Adjoining Landowners
§ 133 (2004). 	We have already determined that the same exception
applies to willful and intentional zoning violations. 	See
Culbertson I, 2001 UT 108, ¶ 56, 44 P.3d 642; Carrier, 2001 UT
105, ¶ 31. 	This precedent is based on the doctrine that
balancing the equities “‘is reserved for the innocent defendant,
who proceeds without knowledge or warning that he is encroaching
upon another’s property rights.’” 	Carrier, 2001 UT 105, ¶ 31
(quoting Papanikolas Bros. Enters., 535 P.2d at 1259). 	But if
the defendant is not innocent, “equity may require [the
property’s] restoration, without regard for the relative
inconveniences or hardships which may result from its removal.”
Id. 	In this case, it is undisputed that Hermes did not
innocently impede Appellees’ property rights. 	See Culbertson I,
2001 UT 108, ¶ 56. 	Hermes admits it had actual and repeated
notification from Appellees that Appellees believed Hermes to be
infringing on their property rights.
¶33 	The case law in Utah is clear: when a zoning violation
is deliberate and willful, as we held Hermes to be in Culbertson
I, the trial court may, as a matter of equity, restore the
property without balancing the hardships. 	Id. 	Consequently, the
district court did not exceed its permitted discretion by
granting a mandatory injunction without first weighing the
parties’ relative hardships and interests.
CONCLUSION

15 	No. 20040729
¶34 	The district court did not err in granting summary
judgment. 	Appellees clearly established the necessary standing
by demonstrating special damages. 	The zoning violation by Hermes
and the undisputed, material facts demonstrate Appellees’
irreparable harm. 	Accordingly, we affirm the district court’s
order, including the imposition of specific metes and bounds to
accomplish the restoration of the Croxford Property. 	We also
affirm the district court’s decision not to balance the parties’
equities and hold that the court did not exceed its permitted
discretion in this choice, but rather, correctly interpreted Utah
law to mean that parties who deliberately and intentionally
violate zoning laws are not entitled to a balance of equities in
the injunctive relief analysis. 	Affirmed.
---
¶35 	Chief Justice Durham, Justice Nehring, Judge Memmott,
and Judge Stott concur in Associate Chief Justice Wilkins’
opinion.
¶36 	Having disqualified themselves, Justice Durrant and
Justice Parrish do not participate herein; District Judge Jon M.
Memmott and District Judge Gary D. Stott sat.